A special survey conducted among the heads of large enterprises of various forms of ownership showed that more than 75% of respondents recognize the domestic taxation system as inefficient. About 80% of managers believe that the current tax system is not conducive to overcoming the economic crisis and the formation of the market. According to the majority of Russian entrepreneurs, the existing tax system blocks investments, increases inflation, hinders structural changes, and encourages tax evasion.
However, nevertheless, the moral and psychological factor of tax crime is largely determined not by this situation, but by a persistent negative attitude towards the tax system in general, a reduced level of legal culture, and the dominance of selfish motives in motivating the behavior of the perpetrators.
In Russia, during the reforms, the previous system of legal education was practically destroyed and a new one, including one focused on the formation of law-obedience in the field of taxation, was not created. The Russian tax system in its modern form was formed only at the end of 1991, while in most foreign countries the institution of taxation has existed for hundreds of years. In these countries, taxpayers are well aware of the purposes for which the taxes they paid are spent, they are aware of the procedure for paying taxes and the measures of responsibility for violations of tax obligations. Tax evaders are condemned by the state and society.
This situation interacts with the specific characteristics of the Russian population. Representative survey various categories of our citizens showed that 60% of respondents do not consider themselves taxpayers.
Among the large taxpayers there are many former figures in the shadow economy, official and ordinary criminals. For the most part, they are characterized by an exaggerated level of material demands, the desire to acquire real estate, luxury goods, etc. Tax evasion is considered by them as one of the ways to achieve these goals, the motivation here is clearly selfish.
However, it should be noted that some tax crimes are committed on the basis of corporate, group interest. There were facts when the funds hidden from taxation were used by the heads of enterprises to develop production, repay loans, and pay salaries. Here one sees the desire to improve the financial condition of one's enterprise and thereby increase its profitability in the future. It arises and is realized in the conditions of miscalculations in the policy of supporting enterprises and their employees, especially when the latter are threatened with obvious or hidden unemployment, non-payment of wages.
Prevention of tax crimes
The prevention of tax crimes should be carried out at various levels and in several directions.
At the national level, it is important to ensure economic stability and the rise of production, the growth of the solvency of economic entities.
Improvement of the legal framework occupies a special place in the system of preventing tax crimes. Expected changes aimed at significant liberalization of the tax system are associated with the adoption of the Tax Code Russian Federation and reducing the number of federal regional and local taxes; the abolition of all taxes paid on proceeds; a reduction in the income tax rate and other important changes.
In order to speed up the tax reform, on May 8, 1996, the President of the Russian Federation signed Decree No. 685 "On the main directions of the tax reform of the Russian Federation and measures to strengthen tax payment discipline."
In accordance with the Decree, the main directions public policy in the field of tax reform in the Russian Federation, the following are recognized:
- building a stable tax system that ensures the unity, consistency and immutability of taxation during the financial year;
- reducing the number of taxes by aggregating them and abolishing targeted taxes that do not generate significant revenues;
- easing the tax burden of product manufacturers and avoiding double taxation by clearly defining the taxable base;
- reduction of benefits and exemptions from general regime taxation.
In addition, this Decree establishes: the abolition of advance payments, the reduction of penalties for late payment of taxes, the exclusion of double taxation. Mentioned changes will undoubtedly have an impact on the tax sphere.
Tax inspectorates can play a significant role in preventing tax crimes. They should improve consulting activities, help taxpayers in resolving questions about the amount of taxes and the procedure for paying them.
The law enforcement agency that combats tax crime in Russia is the Federal Tax Police Service of the Russian Federation, which operates on the basis of the Law of the Russian Federation of June 24, 1993 "On Federal Tax Police Bodies".
In accordance with this Law, the tasks of the federal tax police are: to identify, prevent and suppress tax crimes and offenses (tax police bodies are obliged to inform the relevant law enforcement agencies about other economic crimes identified in the process); ensuring the safety of the activities of state tax inspectorates, protecting their employees from unlawful encroachments in the performance of official duties; prevention, detection and suppression of corruption in the tax authorities.
In order to successfully resolve practical problems, the Federal Law of December 17, 1995 "On the Introduction of Amendments and Additions to the Law of the Russian Federation "On Federal Tax Police Bodies" and the Governing Procedure Code of the RSFSR" tax police bodies are vested with the right to conduct a preliminary investigation on criminal cases on tax crimes. The same Law gives tax police officers the right to issue, as a preventive measure, written warnings to managers, chief accountants and other officials of enterprises and organizations, regardless of taxpayers. This contributes to the establishment of proper relationships between taxpayers and tax control authorities, keeps taxpayers from committing repeated tax offenses.
The need to form a tax culture among citizens and entrepreneurs obliges the authorities tax control implement special preventive measures. Thus, the Federal Tax Police Service of the Russian Federation (FSNP RF) and the State Tax Service of the Russian Federation (STS RF) initiated the development of a nationwide program to form a tax culture among the population. A proposal was sent to the Government of the Russian Federation to create a Coordinating Council from representatives of the Federal Tax Service, the State Tax Service, the Ministry of Justice, the Ministry of Finance, the Ministry of Education, the Central Bank, the State Committee for Press, the State Committee for Higher Education, the Federal Service for Television and Radio Broadcasting and other state bodies . This initiative has been approved by the Government of the Russian Federation.
A significant propaganda load on the prevention of tax offenses is carried by special media, which primarily include: the newspaper "Tax Police", "Taxes", "Kommersant-Daily", the magazine "Tax Bulletin".
These publications systematically publish materials on tax reform, liability for violations tax legislation and the formation of a tax culture.
A huge role in the education of taxpayers belongs to television. On April 2, 1996, the Federal Tax Police Service issued an order "On measures to improve coverage of the activities of the federal tax police on television in order to prevent tax offenses and crimes." It is important that cooperation between the tax police and the media is established in the formation of law-abiding behavior of taxpayers, the prevention of tax crimes and offenses, and the formation of a negative public attitude towards unscrupulous taxpayers.
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INTRODUCTION
Head YY. CRIMINAL LEGAL CHARACTERISTICS
TAX CRIMES
§2. Subjective signs of tax crimes
§3. Qualified types of tax crimes
CONCLUSION
BIBLIOGRAPHY
INTRODUCTION
Currently of paramount importance for modern economy has an effective tax system, since taxes remain the main revenue part of the Russian budget and solve, at the same time, two main tasks. Through taxation, there is a stimulating effect on some sectors of the economy and a restraining effect on others. In the conditions of developing market relations, which involve the widespread development of entrepreneurship, a variety of forms of ownership and a significant restriction of the administrative influence of the state on the activities of independent economic entities, the manipulation of tax rates and benefits is one of the levers by which the state is managed.
Taxes play a distributive role, consisting in the consolidation of significant amounts of money and their subsequent use in the interests of the whole society, including social support its most unprotected layers, financing of various targeted programs. The transformations taking place in Russia in recent years have led not only to positive change social development, but also to a sharp increase in crime, both general criminal and economic, including tax. Wherein the new kind criminal encroachments - evasion of legal entities and individuals from paying taxes - has become quite widespread.
The Constitution of the Russian Federation obliges every citizen to pay the taxes established by law in a timely manner and in full. However, according to the Russian Ministry of Taxes and Duties, only 17% of all Russian economic entities pay their tax liabilities in full and on time, 50% make payments from time to time, and 33% do not pay taxes at all.
The recent changes in the structure and dynamics of tax crime indicate that criminal penetration into the tax sphere is becoming more organized and professional. The level and quality of intellectual support for this type of illegal activity is constantly growing, there is an intensive search and implementation of new ways of committing tax crimes.
Today, the possibilities of bribery of civil servants, uncontrolled disposal of the remains of state property by leaders have significantly increased. state enterprises and organizations.
According to statistics, in general, in Russia, about 1 person out of 6, against whom criminal cases were initiated, is convicted for committing tax crimes. After the creation of its own investigative apparatus in the Federal Tax Police Service of the Russian Federation, the number of criminal cases initiated and sent to courts has increased markedly. However, the effectiveness of investigative activities in cases of crimes under Art. Art. 198 and 199 of the Criminal Code of the Russian Federation, is still far from perfect.
crime tax liability warning
Chapter J. GENERAL CHARACTERISTICS OF TAX CRIMES
§1. The concept, features and composition of tax crimes
A tax crime is a culpably committed socially dangerous act, prohibited by the Criminal Code under the threat of punishment and infringing on the financial interests of the state in the field of taxation.
The formation of the tax system in Russia is accompanied by a significant increase in the number of tax crimes. According to experts, the state annually loses up to a third of tax revenues to the budget. Tax evasion is widespread, widespread and is the main reason for non-payment of taxes to the budget. The growth of tax crime has a high dynamics, therefore, according to some estimates, it is characterized as catastrophic.
The social danger of tax crimes lies not only in the violation of the procedure for carrying out entrepreneurial activities, but also in the shortfall in the receipt of funds by the treasury. Their commission leads to the undermining of competition between economic entities and the violation of the principle of fairness, since the tax burden is ultimately borne only by conscientious taxpayers. Tax crime hinders the development of production, diverts investment capital, and spurs inflation. In its most dangerous part, it is often associated with the commission of other economic crimes - the legalization (laundering) of funds, illegal business, illegal operations in the field currency regulation which again destabilizes society.
Statistics show that criminal violations of tax laws are usually associated with the procedure for calculating and paying income tax - 43% of the total number of tax crimes, value added tax - 28.4%, taxes paid to road funds - 6.7%, income tax- 3.7%, excises - 1.2%. These figures show that, as a rule, tax crimes are aimed at tax evasion, which provide for the largest deductions to the budget.
Tax crimes are committed at various enterprises regardless of the form of ownership, however, it should be noted that about 80% of such crimes are detected at enterprises based on private ownership.
The distribution of revealed tax offenses depending on the organizational and legal forms of economic enterprises is as follows. To share joint-stock companies and partnerships account for 69.8% of offenses, state and municipal enterprises - 12.8%, individual-private - 3.9%. This pattern is apparently determined by the fact that the right to manage and exercise internal control in enterprises operating in the form of joint-stock companies, as a rule, belongs to a limited circle of persons. Usually their leaders are the actual owners, and there is no proper control.
Of particular interest is also the distribution of violations of tax legislation by areas of activity of enterprises. The share of enterprises trading in food products accounts for 24% of offenses, trading in consumer goods - 16%, engaged in the provision of services - 12%, carrying out financial and credit operations - 9%, selling real estate - 8%, producing metalworking and engineering products - 8% engaged in oil production and oil refining - 6%. Thus, the vast majority of tax offenses are committed in the trade sector. Trade enterprises seek to receive payment in cash for the goods they sell, which allows them to use cash in non-bank circulation, which, in turn, greatly complicates the implementation of tax control and contributes to the concealment of these funds from taxation.
In connection with the adoption of the first part of the Tax Code of the Russian Federation, in which Art. 106 the definition of a tax offense is given, the question arises about the relationship between the concepts of “tax crime” and “tax offense”.
A tax offense is an unlawful (in violation of the legislation on taxes and fees) act (action or inaction) of a taxpayer tax agent and their representatives, for which this Code establishes liability.
The main features of a tax crime and a tax offense are the same (guilty, wrongfulness, liability, etc.).
However, a significant difference between a tax crime is its social danger. Such a property is deprived of a tax offense.
There is also a difference in the form of implementation of responsibility. A tax crime entails punishment, a tax offense - a “tax sanction”.
An important feature of a tax crime is that only natural persons can be held responsible for its commission. On the contrary, both individuals and organizations can be held liable for the commission of a tax offense.
§2. Causes, conditions and methods of committing tax crimes
The method of committing a crime is understood as a system of actions for the preparation, commission and concealment of a crime determined by the conditions of the external environment and the psychophysiological properties of the individual.
A feature of tax crimes is that the method of committing crimes is a collective category, that is, by analyzing it, one can trace the mechanism of evasion from paying the unified social tax.
In total, there are about 100 ways to evade taxes and insurance premiums, among them are the following:
1. Concealment of income from taxation by overstating data on material costs in primary documents:
a) inclusion in the costs of the customer's materials;
b) drawing up false documents for writing off materials for production;
c) entering into expense reports fixed travel expenses;
d) inclusion of nominees in payrolls to receive wages;
e) overstatement of prices for purchased goods in invoices and other documents;
f) partial change (additions of amounts upwards) in the statements for receiving wages;
g) posting of non-received materials;
h) write-off of allegedly lost materials.
2. Concealment of income from taxation by overstating data on material costs in accounting documents:
a) inclusion of estimated costs in the costs of the reporting period;
b) inclusion in the cost of low-value and fast-wearing items of the cost of fixed assets;
3. Concealment of income from taxation by overstating data on material costs in the income statement.
4. Hiding income from taxation by understating revenue in primary documents:
a) underestimation of the number of purchased goods;
b) understatement of the sale price of goods;
c) payment in goods ("black barter");
5. Hiding income from taxation by understating revenue in accounting documents:
b) understating the amount of income for the lease of fixed assets of production;
c) purchase and sale of inventory items for cash.
6. Hiding income from taxation by understating revenue in reporting documents:
a) understatement of revenue in the general ledger and balance sheet;
b) understatement of revenue in the income statement;
7. Understatement of taxable income:
a) creation of unregistered enterprises;
b) overstatement of labor costs;
c) overestimation of the number of employees;
d) illegal receipt tax incentives:
e) recruitment of invalids and pensioners as figureheads;
8. Concealment of profits by collusion with the heads of enterprises enjoying tax benefits:
a) fictitious leasing of fixed assets to enterprises enjoying tax benefits;
b) transfer of profits to the accounts of an enterprise that has tax benefits.
9. Different kinds unlawful self-liquidation and staging of crimes (theft, robbery, etc.).
In addition to the above, there are other ways of distorting the reporting of the cost of goods:
a) the cost includes expenses that are not included in the list;
b) the remains of work in progress are incorrectly assessed, with violations of the method of their assessment established at this enterprise;
c) reserves are incorrectly accrued upcoming expenses and payments or written off to the cost of deferred expenses;
d) a lease of property is formalized, which is not actually used for the needs of the enterprise (very often it is personal vehicles).
One of the most common methods of tax evasion is the registration of firms using someone else's passports in order to cash out money.
A shell company can be used as the final recipient of the client's funds, cashing them out for a certain percentage, or act as a permanent intermediary-attorney, commission agent, agent, who receives at his own expense the bulk of the income from the transaction and thereby reduce the taxable base of the initiator of its registration. The characteristic features of front companies are: registration on the basis of lost fictitious stolen documents; registration in a favorable economic zone, an offshore zone in another city or district; non-submission of reports to the tax authorities or submission of zero balances. Most often, such shell companies are formed commercial banks or criminal groups. Shell companies in this case work, as a rule, for a short time (3-12 months), without paying taxes. A partner firm, writing off expenses that were actually absent, significantly reduces the taxable base. In this regard, work on such cases should be built in two directions: identifying and bringing to justice the actual heads of shell companies and attracting the heads of firms who sent money to shell companies. The difficulty in such cases is proving a common criminal intent, since each of the participants performed the role assigned to him. In addition, it should be noted that there are a number of "lawful frauds". For example, in order to reduce the tax on wages, it is directly charged at a very small sizes and the rest is given out as financial assistance.
There are a number of auxiliary sources of proof of understatement or concealment in the financial statements of the results of financial and economic activities. These include:
a) contracts and other transactions that give rise to civil rights and obligations of citizens and legal entities.
b) the participation of three or more parties in an agreement (for example, on joint activities), when enterprises instruct each other to fulfill their obligations in favor of third parties.
c) changing the content of the contract after the beginning of the implementation of the previous one. The accounting already partially reflects the objects of taxation, and the content of the contract is being changed in order to evade taxes.
d) the implementation of actual activities without a contract or the conclusion of a contract after the actual implementation of a transaction for the sale of goods and services. In this case, the execution of the transaction may not correspond to its actual content.
e) internal operational accounting at enterprises.
For operational control over their activities in the market, enterprises maintain various records that are not registered and are not controlled by the state. Such accounting has no evidentiary value for confirmation of distortions in the financial statements. At the same time, operational accounting can be more reliable than accounting, since it is kept "for oneself" and is intended to illuminate the true state of affairs for the entrepreneur. In order to determine crime zones in official reporting, it is necessary to compare operational (draft) and official information on the volume of an enterprise's activity in the market according to any possible meters.
f) on-farm planning at enterprises.
g) on-farm rationing at enterprises.
Special literature describes various methods of balance veiling. At the same time, it is noted that veiling is not always intentional, sometimes it is a consequence of ignorance or carelessness of the balance sheet compilers. However, in most cases, according to the author, veiling is done deliberately, the "veil" is thrown on those balance sheet items, the correctness of the indicators for which, for one reason or another, they try to hide. Balancing techniques include:
a) the reflection of values in the balance sheet is not on those items where they should be shown.
b) balancing accounts payable and receivable, i.e. the amounts should be shown separately for the asset (debtors) and for the liability (creditors), one is deducted from the other, and only the difference between them (the balance) gets into the balance sheet.
c) writing off shortages of valuables at the expense of identified surpluses;
d) incorrect creation of funds and reserves.
e) non-recording to costs of expenses related to the reporting period;
f) inclusion in the balance sheet of someone else's property (goods accepted for commission, valuables in safekeeping, etc.);
g) drawing up a balance sheet that does not follow from accounting records or is based on records in accounting, which are based on incorrect or even false documents.
Documents testifying to the concealment (understatement) of profit (income) are confiscated in a strictly established manner. It is carried out on the basis of a written reasoned decision of an official of the body that carried out the audit (State Tax Inspectorate or Tax Police).
The group of sources of information about tax crimes is represented by personal sources:
a) direct ("ordinary") performers of work (drivers, warehouse workers, loaders, laborers, etc.);
b) support staff (secretaries, technicians, security guards, etc.);
c) relatives and acquaintances of subjects of tax crimes;
d) figureheads;
e) buyers - consumers, contractors, customers, clients.
Material sources of information include raw materials and goods, equipment and computers, floppy disks, bribes and rough notes, fake seals (stamps) and etching agents, securities and so on.
Only by using all sources of information in aggregate, it is possible to get a real picture of the committed tax crime.
Head YY. CRIMINAL LEGAL CHARACTERISTICS OF TAX CRIMES
§1. Objective signs of tax crimes
The object of tax crimes should be considered social relations arising in the field of tax policy state, namely the tax system and the procedure established by the legislation of the Russian Federation for the payment of taxes, fees and other mandatory payments to the budget.
In the definition of the subject of a tax crime, there is an opinion about the subject of a tax crime as a constitutional obligation to pay taxes. The criminal legislation of the Russian Federation, establishing liability for tax evasion, of course, had in mind not the flow of money to the state budget. Probably, due to the legislative formulation of the subject of tax crimes, it is possible to "put up" the tax itself as the subject of tax evasion.
It can be assumed that the subject of tax crimes is not the tax itself, but the funds that provide it.
The object of taxation is for individuals who have a permanent place of residence in the Russian Federation - the total income received from sources in the Russian Federation and abroad; from individuals who do not have a permanent place of residence in the Russian Federation - from sources in the Russian Federation.
The total income as an object of taxation is calculated on the basis of current legislation and by-laws. It includes: income from the main place of work, i.e. all payments, in particular wages, bonuses, etc., other income received outside the place of main work (service, study), from entrepreneurial activity and other income.
The objective side of the crime is expressed in tax evasion by omission, consisting in the failure to submit the declaration of income, which he is obliged to submit, or by an action, which actually consists in intellectual forgery, i.e. inclusion in the declaration of deliberately distorted data on income or expenses.
§2 Subjective signs of tax crimes
In accordance with the Criminal Code of the Russian Federation, liability for any tax crime can come from the age of 16. However, taking into account the specifics of these crimes, as well as the insufficient economic experience of minors, adult offenders are actually held accountable.
Criminal liability arises for tax evasion by a citizen by not submitting an income declaration in cases where the filing of a declaration is mandatory, or in any other way, as well as from paying an insurance premium to state, extra-budgetary funds, committed in large size.
Criminal liability arises for the same act committed on an especially large scale or by a person previously convicted of committing crimes under this article th.
Evasion individual from the payment of the unified social tax to state off-budget funds is recognized as committed on a large scale if the amount of unpaid unified social tax to state off-budget funds exceeds two hundred minimum dimensions wages, and on a particularly large scale - five hundred times the minimum wage.
A person who has committed the crimes provided for by this article, as well as articles 194 and 199 of the Criminal Code of the Russian Federation for the first time, shall be released from criminal liability if he contributed to the disclosure of the crime and fully compensated for the damage caused.
Failure to submit a declaration of income may take place under the text of Art. 198 of the Criminal Code of the Russian Federation only in cases where the filing of a declaration is mandatory. The grounds under which the filing of a declaration is mandatory are established by mandatory public law (as well as all tax law) regulations.
A large amount is a consequence of the crime committed and is expressed in the amount of unpaid tax, which is the difference between the previously paid and additionally payable amount of tax. The tax is recognized as unpaid even if it is collected by force; payment of the tax voluntarily terminates inaction aimed at committing a crime - tax evasion, and should be considered as a voluntary refusal to commit a crime.
The deliberate distortion of income data is possible if there are two signs: the relevance of the data to the calculation of taxes and their deliberate, i.e. obvious to the person, inconsistency with the real state of the tax base. Attributable are cash or missing actual data on the place and grounds for receiving income, on expenses, benefits, i.e. withheld amounts and other information that must be contained in the declaration and that affect the calculation of the amount of income subject to taxation. Known misrepresentations are data based on deliberate misrepresentation or ignorance of facts, for example, underestimation of accrued income.
The crime is committed with direct intent. The person is aware of the social danger of actions and desires the onset of their consequences in the form of non-payment of tax on a large scale. The lack of foreseeing the possibility or inevitability of the onset of socially dangerous consequences - non-payment of taxes on a large scale - excludes the onset of criminal liability.
The commission of this crime by negligence is not provided for by law.
For committing a crime under Part 1 of Art. 198 of the Criminal Code of the Russian Federation defines punishment in the form of: a fine in the amount of two hundred to seven hundred times the minimum wage or in the amount of the wage or other income of the convicted person for a period of five to seven months, or arrest for a term of four to six months, or imprisonment for a term up to 2 years.
Qualifying signs: a conviction for tax evasion and the commission of crimes under Articles 194 or 199 of the Criminal Code of the Russian Federation and the commission of a crime on an especially large scale.
For the commission of a crime under Part 2 of Article 198 of the Criminal Code of the Russian Federation, punishment is determined in the form of: a fine in the amount of five hundred to one thousand minimum wages, or in the amount of the wage or other income of the convicted person for a period of seven months to one year, or imprisonment for up to five years.
Practice shows that tax crimes are committed by the heads of enterprises and firms belonging to various forms of ownership - state, joint-stock, private.
Under Part 1 of Article 199 of the Criminal Code of the Russian Federation, criminal liability arises for tax evasion and (or) fees from an organization by failing to submit 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 by including V tax return or such documents knowingly false information committed on a large scale.
According to part 2 of article 199 of the Criminal Code of the Russian Federation, criminal liability arises for the same act (see part 1 of article 199 of the Criminal Code of the Russian Federation), committed by a group of persons by prior agreement and on an especially large scale.
Large amount in this article, as well as in article 199, paragraph 1 of this Code, is the amount of taxes and (or) fees, amounting for a period within three financial years more than five hundred thousand 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 one million five hundred thousand rubles, and in an especially large amount - an amount for a period of within three financial years in a row, more than two million five hundred thousand 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 seven million five hundred thousand rubles.
The commission of a crime under Part 1 of Article 199 of the Criminal Code of the Russian Federation is 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 by arrest for a term of four to six months, or imprisonment 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.
Committing a crime under Part 2 of Art. 199 of the Criminal Code of the Russian Federation, is 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 by deprivation of liberty for a term of up to six years, with the deprivation of the right to occupy certain positions or engage in certain activities. for a period of up to three years or without it.
§3. The main elements of crimes in the field of taxation
A tax crime is an unlawful act committed in the tax sphere, the criminal nature of which is recognized by the current criminal legislation of the territory to whose jurisdiction it is assigned.
Having decomposed this definition into its logical components, it is clear that a tax crime as such contains all the necessary signs of a tax offense. Consequently, the concept of a tax crime loses its meaning in the absence of an event of a tax offense, its signs. This means that the content of the objective side of a tax crime will be one or another tax offense.
The Tax Code of the Russian Federation provides for the following types of tax offenses, the responsibility for which is enshrined in the following articles: Art. 116 "Violation of the deadline for registration with the tax authority"; Art. 117 "Evasion of registration with the tax authority"; Art. 118 "Violation of the deadline for submitting information on opening and closing a bank account"; Art. 119 "Failure to submit a tax return"; Art. 120 "A gross violation of the rules for accounting for income and expenses and objects of taxation"; Art. 122 "Non-payment or incomplete payment of tax amounts"; Art. 123 "Failure by a tax agent of the obligation to withhold and (or) transfer taxes"; Art. 124 "Unlawful obstruction of the access of an official tax authority, customs authority, body of the state off-budget fund to the territory or premises "; Article 126 "Failure to provide the tax authority with information necessary for tax control"; Article 129.1 "Illegal failure to report information to the tax authority". There are only two articles in the current Criminal Code , providing for liability for tax crimes - Articles 198 and 199.
Article 198 of the Criminal Code of the Russian Federation establishes criminal liability for the evasion of a citizen from fulfilling his constitutional and legal duty - the payment of taxes. The objective side of this crime can be described as a failure by the subject to submit an income declaration in cases where this is mandatory, or the inclusion of deliberately distorted data on income or expenses in the submitted declaration, which led to dangerous consequences on a large scale. At the same time, it should be remembered that each of the forms of the objective side of the act, the responsibility for which is provided for in this article, is, in fact, an independent corpus delicti. In short, the objective side of both offenses under Art. 198 of the Criminal Code of the Russian Federation, is essentially a concealment of objects of taxation, "since the introduction of distorted data on income and expenses in the declaration or accounting documents entails the formation of unreliable financial results and, consequently, the concealment of objects of taxation.
Offenses of opposing or failing to comply with requirements tax service for the purpose of concealing income (profit) or tax evasion, make up 21.8%, evasion from filing an income declaration - 3.7%, others - less than 1%.
When considering some of the basic concepts mentioned in the description of the objective side of the act, characterized by Art. 199 of the Criminal Code of the Russian Federation, the legal norm provides for liability for tax evasion from organizations. The first part of this legal norm characterizes the objective side of such a corpus delicti as tax evasion from organizations by including deliberately distorted data on income or expenses in accounting documents or by hiding other objects of taxation, committed on a large scale. The second part of this article characterizes the objective side of this act, subject to its repeated commission. The main tax burden in Russia is borne by enterprises and organizations. Thus, the most widespread among tax crimes are acts, the responsibility for which is provided for in Art. 199 of the Criminal Code of the Russian Federation. "Of the total number of registered legal entities, only 436 thousand (16.6%) make regular payments, 1 million 307 thousand (49.8%) have debts to the budget and about 787 thousand (29.9%) do not represent financial statements, do not pay taxes or are on the tax wanted list."
Decree of the Plenum of the Supreme Court of the Russian Federation dated December 28, 2006 No. 64 "On the practice of application by the courts of criminal legislation on liability for tax crimes" immediately after its release was called revolutionary in the legal community.
The fundamental issue is clarified in paragraph 1 of the Resolution - deliberate failure to fulfill the constitutional obligation of everyone to pay legally established taxes and fees is the non-receipt of funds in the state budget. Such a link between the fulfillment of obligations and the receipt of funds in the budget system is caused by the scale of abuse and the importance of taxes for the execution of budgets at all levels.
As stated in paragraph 3 of the Resolution, evasion of taxes or fees can be carried out in the form of an action by deliberately including in the tax return other documents, the submission of which, in accordance with the legislation of the Russian Federation on taxes and fees, is mandatory, knowingly false information or inaction - deliberate failure to submit tax return or other mandatory documents.
Since, in accordance with the provisions of tax legislation, the deadlines for filing a tax return and paying a tax (fee) may not coincide, the moment the crime under Art. 198, 199 of the Criminal Code of the Russian Federation, is understood as the actual non-payment of taxes (fees) within the period established by tax legislation.
A very important clarification is given in paragraph 6 of the Resolution. In particular, it was clarified that subject to criminal liability under Art. 198 of the Criminal Code of the Russian Federation may be another individual, for example, in accordance with Art. 26, 27 and 29 of the Tax Code of the Russian Federation legal or authorized representative.
When a person is actually engaged in business through nominees registered as individual entrepreneurs, evading taxes (fees), he should be qualified under Art. 198 of the Criminal Code of the Russian Federation as the perpetrator of this crime. By virtue of h. 4 Article. 34 of the Criminal Code of the Russian Federation, persons who were aware that they were participating in tax evasion (fees) should be considered as his accomplices.
The subjects of the crime, the responsibility for which is provided for by Art. 199 of the Criminal Code of the Russian Federation, the head of the organization, the chief accountant (accountant in the absence of the position of chief accountant) can be recognized, whose duties include signing tax reporting documentation, ensuring the full and timely payment of taxes and fees, as well as other persons specially authorized by the heads of the organization to take such actions. According to the above article of the Criminal Code of the Russian Federation, persons who actually perform the duties of a manager or chief accountant (accountant) may also be liable. The deed should be qualified under paragraph "a" part 2 of Art. 199 of the Criminal Code of the Russian Federation, if these subjects were in collusion beforehand.
Other employees, for example, those who draw up primary accounting documents, if there are grounds for this, are held criminally liable under the relevant part of Art. 199 of the Criminal Code of the Russian Federation as accomplices, deliberately assisting in the commission of this crime.
The organizations referred to in Art. 199 of the Criminal Code of the Russian Federation, include all those listed in Art. 11 Tax Code of the Russian Federation legal entities, formed in accordance with the legislation of the Russian Federation, as well as foreign companies and other corporate entities with civil legal capacity, or international organizations established in Russia in accordance with the legislation of foreign states, their branches and representative offices.
The person who organized the commission of a crime under Art. 199 of the Criminal Code of the Russian Federation, or who persuaded the head, chief accountant (accountant), other employees of the organization to commit it, as well as assisting in its commission with advice, instructions, etc., is liable as an organizer, instigator or accomplice under Art. 33 of the Criminal Code of the Russian Federation and the relevant part of Art. 199 of the Criminal Code of the Russian Federation.
The actions of a person who included false information in a tax return or other mandatory documents by mistake, without the intention of non-payment (paragraph 9 of the Resolution) do not constitute a crime.
Indication of deliberately false information in a tax return or other mandatory documents is the deliberate inclusion in them of any data that does not correspond to reality about the object of taxation, calculation tax base, availability of tax benefits or deductions and other information that affects the correct calculation and payment of taxes and fees.
Knowingly false information also includes deliberate failure to reflect information about income from certain sources, objects of taxation, a decrease in the actual amount of profit, a distortion of the amount of expenses incurred that are taken into account when calculating taxes (for example, expenses that reduce the amount of total taxable income) that do not correspond to reality data on the time (period) of expenses incurred, income received, distortions in the calculations of physical indicators characterizing a certain type of activity, when paying a single tax on imputed income, etc.
In cases where a person falsifies official documents of an organization, seals, stamps, letterheads in order to evade paying taxes or fees, what he has done, if there are grounds for this, entails criminal liability for a combination of crimes under Art. 198 or 199 and Art. 327 of the Criminal Code of the Russian Federation.
On the contrary, if on the tax payment date there is an overpayment to the same budget for the previous tax periods, then the failure to submit a tax return or the inclusion of information in it, which led to an underestimation of the tax base, does not constitute a crime under Art. 198 or Art. 199 of the Criminal Code of the Russian Federation.
In cases where a person exercises legal or actual management of several organizations and, at the same time, evasion from paying taxes or fees is established for each of them, the actions of the subject, if there are appropriate grounds, should be qualified according to the totality of crimes provided for in Art. 199 of the Criminal Code of the Russian Federation (clause 13 of the Resolution).
Paragraph 14 of the Decree clarifies: if the taxpayer did not file 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 (Article 23 of the Tax Code of the Russian Federation), or included deliberately false information in them, supplemented and changed the tax return after the expiration of the deadline for its submission, but then, before the expiration of the deadline for paying the tax or fee, he made the amount of the mandatory contribution (clause 4 of article 81 of the Tax Code of the Russian Federation), voluntarily and finally refusing to complete the crime (part 2 of article 31 of the Criminal Code of the Russian Federation) provided for by Art. 198 or 199 of the Criminal Code of the Russian Federation there is no corpus delicti.
Actions of a tax agent on the calculation, withholding or transfer of taxes and (or) fees to the relevant budget (off-budget fund), violating tax legislation, committed for mercenary motives and associated with the illegal seizure of funds and other property in their favor or in favor of third parties, should be additionally qualified as theft of someone else's property (paragraph 18 of the Resolution).
When a person, in his personal interests, does not fulfill the duties of a tax agent for calculating, withholding and transferring taxes and at the same time evades paying them on a large or especially large scale as an individual or organization, the deed should be qualified as a combination of crimes under Art. 199.1 of the Criminal Code of the Russian Federation and, accordingly, Art. 198 or Art. 199 of the Criminal Code of the Russian Federation.
When the said person commits actions to conceal funds or property of the organization or individual entrepreneur, at the expense of which the collection of taxes or fees should be carried out, committed by him, if there are grounds for this, is subject to additional qualification under Art. 199 p.2 of the Criminal Code of the Russian Federation.
Allegations that the courts are focused on bringing to justice the perpetrators, and not the leaders, are also untenable. Both the manager and the executor are liable in criminal proceedings only when their guilt is proven in the form of direct intent to commit a tax crime. As for their role in such an act, it will be determined according to the rules of Art. 33 - 35 of the Criminal Code of the Russian Federation.
Head YYY. SYSTEM OF MEASURES FOR THE PREVENTION OF TAX CRIMES
§1. Criminal liability for tax crimes
Criminal liability is a state-coercive influence for a committed crime, provided for by a criminal law norm and applied to a person by a court conviction that has entered into legal force. If liability under the Criminal Code of the Russian Federation is provided for a tax offense, then criminal liability arises. The responsibility provided for by this Code for an act committed by an individual occurs if this act does not contain elements of a crime under the criminal legislation of the Russian Federation.
Thus, on this moment In Russia, there are two actually applied types of legal liability for tax offenses: Administrative and Criminal.
Grounds for criminal liability for tax crimes
Criminal liability - occurs for the commission of crimes provided for by criminal law.
Criminal offenses in the field of tax relations are otherwise called tax crimes. These offenses, as well as sanctions for their commission, are provided for by criminal law.
The basis of criminal liability is the commission of an act containing all the elements of a crime under the Criminal Code of the Russian Federation.
A sufficient basis for the onset of criminal liability is the presence of corpus delicti in a committed socially dangerous act.
The criminal law theory under the composition of a crime understands the totality of objective and subjective signs that characterize a socially dangerous act as a crime in the criminal law.
Age of criminal liability - A person who has reached the age of sixteen by the time the crime is committed is subject to criminal liability.
Sanity, that is, a person who, at the time of committing a socially dangerous act, was in a state of insanity, that is, could not realize the actual nature and social danger of his actions (inaction) or manage them due to a chronic mental illness, is not subject to criminal liability. A sane person who, at the time of committing a crime due to a mental disorder, could not fully realize the actual nature and social danger of his actions (inaction) or manage them, is subject to criminal liability.
Sanctions for tax crimes
The Criminal Code of the Russian Federation treats tax evasion as a crime. The following types of offenses and liability for their commission have been established:
1. Evasion of taxes and (or) fees from an individual (Article 198 of the Criminal Code)
Evasion of taxes and (or) fees from an individual by failure to submit a tax declaration or other documents, the submission of which is mandatory in accordance with the legislation of the Russian Federation on taxes and fees, or by including deliberately false information in a tax declaration or such documents, committed in large size- a fine in the amount of 100,000 to 300,000 rubles or in the amount of the wage or other income of the convicted person for a period of one to two years, or arrest for a term of four to six months, or imprisonment for a term of up to one year. The same act committed in extra large size- 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 eighteen months to three years, or imprisonment for up to three years
2. Evasion of taxes and (or) fees from the organization (Article 199 of the Criminal Code)
Evasion of paying taxes and (or) fees from an organization by failing to submit 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 by including deliberately false information in a tax declaration or such documents, committed in large size- a fine in the amount of one hundred thousand to three hundred thousand rubles or in the amount of the wage or other income of the convicted person for a period of one to two years, or arrest for a term of four to six months, or imprisonment for a term of up to two years with deprivation of the right hold certain positions or engage in certain activities for up to three years or without it.
extra large size- 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 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. years or not
3. Concealment of funds or property of an organization or an individual entrepreneur, at the expense of which taxes and (or) fees should be collected.
Concealment of funds or property of an organization or an individual entrepreneur, at the expense of which, in the manner prescribed by the legislation of the Russian Federation on taxes and fees, the collection of arrears in taxes and (or) fees, committed by the owner or head of the organization or another person performing managerial functions in this organization, or by an individual entrepreneur on a large scale - 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 eighteen months to three years, or imprisonment for a term of up to five years with deprivation of the right hold certain positions or engage in certain activities for up to three years or without it
4. Evasion of customs payments levied from an organization or individual.
Evasion from payment of customs duties levied from an organization or an individual, committed in large size- a fine in the amount of one hundred thousand to three hundred thousand rubles or in the amount of the wage or other income of the convicted person for a period of one to two years, or compulsory work for a term of one hundred and eighty to two hundred and forty hours, or imprisonment for a term of up to two years
The same action committed: a) by a group of persons by prior agreement; b) c extra large size- a fine in the amount of one 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 imprisonment for up to five years with deprivation of the right to hold certain positions or engage in certain activities for up to three years. years or not
§2. Measures to prevent tax crimes
The legal measures and norms providing for responsibility in the studied area of public relations include:
1. Administrative responsibility in case of violation of the deadlines for tax registration with the tax authority. Moreover, the Code of Administrative Offenses of the Russian Federation differentiates liability arising depending on the violation of the deadline for filing an application for registration with a tax authority.
2. Responsibility for violation by the taxpayer of the deadline for registration with the tax authorities at the place of registration of the start of implementation established by the tax legislation of the Russian Federation certain types entrepreneurial activities established by tax legislation, which entails a fine for individual entrepreneurs and officials.
Misdemeanors committed repeatedly within a year after the imposition of an administrative penalty entail larger fines.
3. Responsibility of entrepreneurs conducting their business under a special tax regime.
4. Failure to submit tax reports, as well as documents required for monitoring the taxpayer within the prescribed period.
5. Failure to submit within the period established by the authorized state body, or refusal to submit documents by the taxpayer (including in electronic format), as well as tax reporting on electronic monitoring, necessary for monitoring taxpayers.
6. The imposition of a penalty for concealing objects of taxation with increased punishment for the repeated commission of this act.
7. Administrative responsibility of the taxpayer for the taxpayer's lack of accounting for income, expenses and objects of taxation or for keeping it in violation of the established procedure.
8. Responsibility for evading the payment of accrued (additional) amounts of taxes and other obligatory payments to the budget, committed by the taxpayer making mutual settlements through the cash desk or bank accounts of third parties in the presence of debts on taxes and other obligatory payments to the budget, exists for more than 90 days from the established legislative acts of the Russian Federation of the term for their payment, if this action does not contain signs of a criminally punishable act.
Judicial and investigative practice shows that the problem of tax offenses cannot be solved by criminal and administrative methods alone. In this regard, it is necessary to implement a strategy to significantly reduce the level of tax offenses through a sound tax policy, i.e. measures of a political nature, which should include: prevention of tax offenses and the formation of a tax culture of the population; regular monitoring of groups of taxpayers; transparency and publicity in the implementation of social and tax policy of the state; improvement of tax legislation and implementation of our proposed mechanism for preventing tax crimes, thus obtaining a multiplier effect.
An effective measure to reduce the criminogenic situation in matters of tax offenses can be the development of an algorithm for effectively combating tax crimes, the use of which would contribute to obtaining a multiplier effect, i.e. finding those tax policy mechanisms that will allow, with limited funds, to lead to a sharp decrease in tax offenses.
Such an algorithm should be carried out in several stages:
At the first stage, a technology for conducting an action is developed, which may include an audit plan, material resources conducting tax audits, information support.
At the second stage, direct checks are carried out financial indicators taxpayers in order to identify income hidden from taxation.
In the third stage, cases are referred to the courts and the results of court proceedings are followed up. The overall results of the campaign and the financial result are analyzed.
The reality of the implementation of this scheme is in its relative simplicity. Thus, a chain reaction effect can be achieved, which, by analogy with the economic term, is called the multiplier effect.
Carrying out such actions is possible within the framework of two departments - the Tax Committee of the Ministry of Finance of the Russian Federation and the financial police, which have all legal, government, executive, analytical and informational tools at their disposal.
CONCLUSION
Tax crimes are among the most dangerous criminal acts, as they harm the economic well-being of the country and, accordingly, society as a whole, especially putting financial situation citizens who are on budget financing, as well as citizens receiving social benefits from state off-budget funds. Therefore, it is important to develop in detail the issues of responsibility for these crimes, develop an effective methodology for investigating them, provide the material and technical base of the tax police, improve the security measures of employees, and constantly improve their skills.
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Balyuk Nadezhda Nikolaevna Prevention of tax crime: dissertation... candidate of legal sciences: 12.00.08 / BALYUK Nadezhda Nikolaevna; [Place of protection: Federal State Autonomous educational institution higher education "Peoples' Friendship University of Russia"].- Moscow, 2015.- 316 p.
Introduction
CHAPTER 1. Criminological characteristics of tax crime 21
1.1. Concept, essence and types of tax crimes 21
1.2. The concept, state and features of tax crime in the Russian Federation 58
1.3. Criminological characteristics of persons committing tax crimes 94
1.4. Key determinants of tax crime 121
CHAPTER 2 Fundamentals of tax crime prevention in modern Russia 142
2.1. General measures to prevent tax crimes 142
2.2. Criminal policy in the field of tax crime prevention 175
2.3. Special measures to prevent tax crime. 210
Conclusion 247
List of sources used
Introduction to work
Relevance of the research topic. The constitutional obligation of every citizen of the Russian Federation to pay legally established taxes and fees is one of the most important, and its failure to comply is subject to criminal prosecution if it is committed on a large or especially large scale. Public danger in the form of damage to the financial and budgetary system of the state emphasizes the importance of the existence and improvement of tax crimes.
Russian criminological and criminal law sciences are dynamically developing, sensitively responding to all significant changes taking place in the political, economic, social and cultural spheres of modern society. Currently, one of the most imperfect and vulnerable areas of public relations subject to increased protection is the financial and economic sector, in particular, the tax system of the Russian Federation. That is why the relevance and timeliness of scientific research into the problems of preventing tax crimes is explained by a number of factors:
firstly, the entire system of tax crimes was actually revived in the Criminal Code of the Russian Federation of 1996 (hereinafter referred to as the Criminal Code of the Russian Federation) after a long break; the actual break in the evolutionary line of legal and legislative continuity between Russian pre-revolutionary and modern Russian legislation had a negative impact on the formation of the “new” criminal law;
secondly, the system of economic crimes in Soviet law and the relations protected by it in the sphere of economic activity were completely different and could not serve as a full-fledged guideline for the reformed legislation, which is why the entire content of Chapter 22 of the Criminal Code of the Russian Federation seems to be one of the least perfect and carefully worked out parts of this normative act;
thirdly, the formation and adoption of legislative norms against the background of the rapidly developing economic reforms of the 1990s. happened quite quickly and, as a result, was often ill-conceived and insufficiently substantiated, which immediately led to the introduction of numerous and sometimes hasty changes to the already existing provisions of the criminal law;
fourthly, the institutionalization of the tax system took place in parallel with the general legal reform, but, nevertheless, with a significant delay and rather autonomously; this is evidenced not only by the dates of adoption of the Criminal Code of the Russian Federation and both parts of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation), but also by the already traditional imbalance in the activities of tax and law enforcement agencies;
Fifth, the development of financial and budgetary relations in
Russian Federation requires constant adjustment of the legal
regulation and criminal policy in this area of public
relations, especially in the context of modern legal integration,
globalization and world financial crisis;
Sixth, despite the abundance of research work,
dedicated to economic and tax crime, systemic, but with
this highly specialized research on prevention
tax crime in modern conditions(instability of the world
economy and crisis economic phenomena within Russia, including
the growing influence of the negative consequences of the sanctions policy in
relation to our country in 2014-2015) is clearly not enough, the relevance
most of them are lost due to the dynamic development
public relations, changes in tax and criminal policy.
The analysis of the materials of judicial and investigative practice and a survey of experts shows that, despite the widespread occurrence of facts of criminal violation of tax legislation, the use of exclusively the norms of criminal law in the fight against tax crime is clearly not enough. On present stage it is necessary not only to change approaches to the implementation of criminal policy in this area, but to develop and implement a system of measures to improve the efficiency of activities of all tax crime prevention entities, change the basis for their general and individual preventive work with taxpayers, which will reduce the number of crimes committed in this area, and as a result, reduce the negative consequences of crime for society and the state in the form of direct and indirect damage caused, as well as stabilize the taxation system and economic situation generally.
A systematic approach to the problem of preventing tax crime in modern Russia requires scientific justification, taking into account the needs of practice and the realities of the Russian economy, including increasing the role of tax discipline of individuals and legal entities to ensure the stability of the socio-economic development of the Russian Federation. It is no coincidence that more and more attention has been paid to this topic in recent years. So, for example, on September 26, 2014, on the basis of the Nizhny Novgorod Academy of the Ministry of Internal Affairs of Russia, an All-Russian meeting-seminar was held with the heads of economic security and anti-corruption departments of the Ministry of Internal Affairs for the republics, the Main Directorate of the Ministry of Internal Affairs of Russia, the Department of the Ministry of Internal Affairs for other constituent entities of the Russian Federation, transport departments of the Ministry of Internal Affairs of Russia for federal districts on the topic: “Improving the efficiency of performance and methodological support for combating crimes in the economic sphere and corruption” 1 . IN
See, for more details: Official website of the Ministry of Internal Affairs of Russia [Electronic resource]. -URL.: (date of access: 12.02.2015)
The event was attended by representatives of the General Prosecutor's Office of Russia, the Federal Tax Service of Russia, the Investigative Committee of Russia, the Federal Antimonopoly Service of Russia, Rosfinmonitoring of Russia, 127 heads of departments of economic security and anti-corruption of internal affairs bodies from all over the country.
It seems that it is impossible to create a tax crime prevention system without taking into account the achievements in this field of criminological science. And the search optimal model tax crime prevention is a rather complex scientific and practical task, the successful solution of which depends, among other things, on taking into account the goals of organizing the activities of the justice system and the economy. On the one hand, the state is obliged to respond to the facts of illegal encroachments in the tax sphere by establishing criminal prohibitions and appropriate sanctions, and on the other hand, the state is obliged to provide an opportunity for the development of the domestic business community, is interested in increasing foreign investment into the Russian economy due to favorable taxation conditions.
It is no coincidence that they try to solve the problems of combating tax crime at the highest state level, when it is necessary to give a fundamental assessment and make a decision to find such a balance of interests of the state and the business community. So, the President of Russia V.V. On October 22, 2014, Putin signed federal law No. 308-F3, amending the Code of Criminal Procedure of the Russian Federation (hereinafter referred to as the Criminal Procedure Code of the Russian Federation), namely, he changed the procedure for initiating criminal cases in connection with tax crimes. In particular, now criminal cases on tax crimes can be initiated before the end of the tax audit, as well as if the audit was not carried out. The investigating authorities have the right to send information about the crime to the tax authorities, which are obliged to provide a conclusion on the presence or absence of a violation of the current legislation relating to taxes and fees no later than 15 days, after which the issue of initiating a case can be decided. Nevertheless, if there is a reason and sufficient data pointing to the signs of a crime, the investigator now has the right to initiate a criminal case even before receiving information from the tax authorities. In addition, a criminal case on these grounds can be terminated if, before the appointment of a court session, the damage caused to the budget of the Russian Federation is compensated in full (before that, such criminal cases could only be initiated on the basis of materials from tax authorities’ audits, which often made it difficult to use the results of operational-search actions and also had a negative effect on the effectiveness of solving crimes).
Thus, the above circumstances determine the relevance of the topic of this dissertation research.
The degree of development of the research topic. The problems of tax crime prevention are not sufficiently studied in
modern Russian criminological and criminal law science.
A significant contribution to the general theoretical development of the problems of preventing tax crimes was made by such scientists as I.V. Aleksandrov, A.P. Kuznetsov, I.I. Kucherov, V.D. Larichev, O.Sh. Petrosyan, I.N. Solovyov, P.S. Jani et al. Features of tactics and methods of investigating tax crimes were considered in detail in the studies of N.V. Bashirova, R.V. Bobrineva, V.P. Vasilyeva, P.V. Dontsova, V.V. Karyakina, I.V. Finger, K.A. Pirtskhalava, L.G. Shapiro and others. S.A. Burlin, N.S. Reshetnyak, V.N. Titova and others. The works of such scientists as M.Yu. Botvinkin, A.M. Vandysheva, A.A. Vitvitsky, D.A. Glebov, O.G. Solovyov, A.V. Shchukin and others. Organizational and managerial measures to reduce tax crime in market economy Russia were considered by A.A. Anishchenko, A.A. Klevtsov, V.A. Kovalev, T.V. Pinkevich and others. In addition, certain criminological aspects of the determination and prevention of tax crime were considered in the studies of O.A. Abakumova, M.O. Akopdzhanova, SP. Bagraeva, SU. Bakharchieva, A.Kh. Ben-Akil, V.N. Bosakova, R.S. Zainutdinova, P.A. Istomin, F.A. Karimova, M.L. Krupin, A.G. Kot, A.A. Loshkina, M.I. Mamaeva, Sh.Ya. Nasrutdinova, S.L. Nudel, V.G. Pishchulina, L.V. Platonova, N.V. Pobedinskaya, A.I. Rolla, S.D. Sulaimbekova, I.M. Sereda, A.R. Siyukhova, S.Yu. Sokolova, A.B. Tagirova, N.R. Tupancheski, S.I. Ulezko, A.N. Tsaneva and others.
Nevertheless, most of the scientific research is devoted to the analysis of the criminal law aspects of tax crimes, and only a small part of them contains sections that reflect the criminological aspects of their prevention. The presence of several dissertation studies does not solve this problem, since many of them are already based on inactive or changed domestic legislation. In other studies, the issues of preventing tax crimes in modern conditions are practically not considered.
Unfortunately, a comprehensive study on the problems of preventing tax crimes in modern Russia has not been conducted. The need for such a study is obvious.
The purpose of the dissertation research consists in a comprehensive study of the legal nature, causes, current state and dynamics of tax crime, as well as a system of measures to prevent tax crime, the preparation of evidence-based proposals and recommendations for its prevention, taking into account positive foreign and domestic experience in the Russian Federation.
To achieve this goal, the following main research areas have been identified. tasks:
Analyze the origin and features of the formation
legislative norms on tax crimes in Russia;
analyze the concept, essence, features, state of the art and trends in tax crime in the Russian Federation;
identify and consider character traits and personality traits of the tax offender;
reveal the main factors determining the commission of tax crimes;
Consider the main problems of the Russian criminal and tax
policies that influence the state of tax crime;
On the basis of the data obtained, theoretically substantiate
the need to develop and take specific measures to prevent
tax crime, taking into account the achievements of domestic science and
positive foreign experience.
Object of study is a complex of public relations in the field of tax crime prevention.
Subject dissertation research
quantitative and qualitative characteristics of tax crime in modern Russia, the personality characteristics of such criminals, as well as the factors that determine the crimes in question, and the system of measures aimed at preventing tax crime.
Methodological basis of the study. To obtain reliable results of the dissertation research, the following methods were applied in a complex way: the method of statistical analysis of data on tax crimes, as well as criminologically significant signs of the identity of the offender; methods of system-structural analysis and modeling, which made it possible to identify, study and present a criminological model for determining tax crime; private methods of concrete-applied knowledge and comparative legal analysis, which made it possible to classify the system of prevention of the crimes in question according to the main directions.
As theoretical basis research used the provisions of the science of the theory of state and law, the theory of criminological science, certain provisions of science financial law contained in the works of such scientists and thinkers as: Aristotle, C. Beccaria, K.S. Velsky, N.A. Berdyaev, K.A. Helvetius, T. Hobbes, I.I. Kucherov, F. List, J. Locke, C. Lombroso, N.O. Lossky, Sh.L. Montesquieu, J. J. Rousseau, G. Tarde, E. Ferri, I.I. Yanzhul and others. The main theoretical basis of the study was the work of domestic experts in the field of criminal law and criminology, such as: M.O. Akopdzhanova, A.S. Alexandrov, A.I. Alekseev, Yu.M. Antonyan, N.A. Belyaev, A.I. Boyko, S.S. Boskholov, D.V. Vinnitsky, B.V. Volzhenkin, B.S. Volkov, Ya.I. Gilinsky, Yu.V. Golik, A.I. Dolgova, A.E. Zhalinsky, G.A. Zlobin, L.V. Inogamova-Khegay, T.E. Karaev, O.G. Karpovich, S.G. Kelina, I.A. Klepitsky, P.N. Kobets, M.I. Kovalev, A.P. Kozlov, B.C. Komissarov, E.N. Kondrat, L.V. Kondratyuk, A.V. Korneeva, V.N. Kudryavtsev,
N.F. Kuznetsova, E.B. Kurguzkina, N.S. Leykina, V.V. Luneev, D.G. Makarov, N.A. Morozov, A.V. Naumov, B.S. Nikiforov, G.P. Novoselov, B.C. Obninsky, V.G. Pavlov, O.Sh. Petrosyan, L.V. Platonov, A.I. Rarog, SV. Sklyarov, G.G. Smirnov, G.K. Smirnov, A.L. Smorgunova, I.N. Solovyov, N.S. Tagantsev, A.N. Trainin, Yu.V. Truntsevsky, B.S. Utevsky, T.V. Tsereteli, M.D. Shargorodsky, V.E. Eminov and others.
Normative base of research drafted the Constitution of the Russian Federation, the laws of the Russian Federation and by-laws regulating the prevention of tax crime and forming the legislative framework for the criminal and tax policy pursued in the Russian Federation.
empirical base The study compiled: 1) statistical data on registered tax crimes for the period from 1996 to 2014 of the Federal Tax Service of Russia, the Federal State Statistics Service of Russia (Rosstat), the SIAC of the Ministry of Internal Affairs of Russia and information centers at the Main Directorate of the Ministry of Internal Affairs of Russia for the Voronezh Region, the Department of the Ministry of Internal Affairs of Russia for the Belgorod, Bryansk, Kursk, Lipetsk, Oryol, Tambov Regions, as well as the Judicial Department at the Supreme Court of the Russian Federation; 2) published materials of judicial and investigative practice on issues related to the subject of this study, as well as the results of studying the materials of 194 criminal cases on tax crimes committed in the period from 2006-2014. (57 - Art. 198 of the Criminal Code of the Russian Federation; 83 - Art. 199 of the Criminal Code of the Russian Federation; 28 - Art. 199.1 of the Criminal Code of the Russian Federation; 26 - Art. 199.2 of the Criminal Code of the Russian Federation); 3) the results of an expert survey of 167 law enforcement officers and judges and 189 tax officials from 17 constituent entities of the Russian Federation using specially designed questionnaires, as well as a survey of 284 representatives of the business community (heads of enterprises; chief accountants of enterprises; legal advisers) from 24 constituent entities of the Russian Federation. In addition, when preparing the dissertation, the results of scientific research related to the subject of work carried out in different years by other authors were also used, revealing the specifics of tax crime from the point of view of economic theory and practices.
In preparing the study, the legal literature was studied, highlighting the positive Foreign experience and judicial and investigative practice of combating tax crimes.
Scientific novelty of the dissertation determined by the fact that the author: 1)
a systematic criminological study of the tax
crime as a socially negative phenomenon, taking into account modern
conditions for the development of Russian society and the state, including the newly
problems that have arisen in the domestic economy and the system for ensuring its
criminological security caused by internal
(inefficiency of certain norms of legislation, lack of a proper system for combating crimes in the economic sphere, etc.) and external factors(the impact of crisis phenomena in the global economy, the growing negative consequences of the sanctions policy against
Russian Federation and related processes); 2) on the basis of the analysis carried out, a number of proposals were substantiated and formulated for improving the norms of criminal law establishing responsibility for committing tax crimes, as well as recommendations for improving the effectiveness of general and special criminological measures to prevent tax crimes in modern conditions, which together allowed us to develop a unified concept of building tax crime prevention systems.
As a result of the study The following new provisions or provisions containing elements of novelty are submitted for defense:
1.
Tax crime is defined by the author as a public
dangerous, relatively mass social phenomenon, which manifests itself in
in the form of a system of tax crimes, criminals and negative
legal consequences in the field of the tax system of the state in the form
causing large or especially large damage to the budget
appropriate level, and which becomes in modern conditions
one of the main factors contributing to the real decline in the
socio-economic development of Russian society and state.
Tax crimes should be understood as a system of public
dangerous acts for which a criminal offense is provided
liability in Art. 198-199.2 of the Criminal Code of the Russian Federation.
The observed increase in the share of serious crimes in the structure of registered tax crimes, high level their latency, the presence of a direct relationship with corruption and fraudulent activities in credit financial sector, Availability international relations between criminal structures engaged in such activities, against the background of the adopted state budget guarantees for financing the main socio-economic development programs for 2015-2017, allows us to conclude that the commission of tax crimes is a very profitable, most accessible and sometimes the only possible source of obtaining superprofits by criminals, and tax crime itself (as a kind of economic crime) for modern Russia is becoming a very dangerous phenomenon.
2. Persons committing tax crimes have
characteristic features that distinguish them from persons committing other
types of crimes in the sphere of economy. To the characteristics
personality of the tax criminal should be attributed: features of the legal
the status of a person depending on the specifics of the committed act in accordance with the Criminal Code
Russian Federation (Article 198 - a person obliged to pay taxes or insurance premiums;
Art. 199 - head of the organization, chief accountant, in charge
which includes signing reporting documentation presented in
tax authorities, as well as other persons who have received special
powers; Art. 199.1 - a person performing the duties of a tax agent;
Art. 199.2 - the owner or head of the organization, other person,
performing managerial functions in it, or an individual
entrepreneur); to belong to social group with middle or high income, low level social anxiety and tension; high level of professional training (higher vocational education), competence in the legal and economic fields of activity, activity in professional activities, developed intuition and logic; the most productive age for professional activity is from 30 to 49 years, the presence of a permanent and fairly well-paid job or own business; legal nihilism in relation to the activities of the system of state and municipal authorities (law enforcement and tax authorities) as the most characteristic psychological trait of a person; pronounced desire for profit; inflated needs that do not correspond to the level of income; a sense of impunity, in which illegal motives for deviant behavior prevail. The detailed criminological characterization of the personality of the criminals in question, proposed in the dissertation, makes it possible to identify and take into account its features that are important for organizing the prevention.
3. With regard to the determination of tax crime in modern Russia, three most important causal complexes should be distinguished:
1) political and legal determining complex - formation
tax system and tax legislation was the result of
simultaneously political, economic and legal reform in
Russian Federation, and the current tax and criminal policy is still
has been influenced not so much by socio-economic realities as
how much political government course (there is imperfection
tax system and tax control mechanism, which are still
are in a state of reform; existence of contradictions in
current tax, civil, administrative, criminal and
criminal procedure legislation, problems of implementation of norms
international legal acts into the domestic legislation of the country, which
adversely affects the justice system and allows criminals to
avoid responsibility, including foreign countries);
2) socio-economic determinant complex - the presence of
shadow economic structures whose activities are related to
evasion of legally established taxes and fees and concealment
taxable property, and
constraining barriers in the field of entrepreneurship; absence
a full-fledged free market and the presence of social inequality, not
allowing, without violating the norms of tax and criminal
legislation to carry out full-fledged entrepreneurial or
other economic activity (to receive a stable income, develop and
modernize production, pay workers, etc.);
3) sociocultural determining complex - features
Russian mentality, characterized by legal nihilism,
distrust of the population in the state tax and criminal
policy that arose after the reforms of the 1990s. of the last century and which society cannot overcome in any way (the observed picture is a consequence of the injustice of privatization and subsequent redistribution of state property, manifestations of corruption, the penetration of criminal elements into power structures, the spread of criminal subculture in the media and the Internet).
4. When building a modern tax prevention model
crime in the Russian Federation, it is required to take into account the fact that
representatives of law enforcement and tax authorities and
taxpayers see the problem differently
tax crime: the first - in the need to tighten
the ongoing tax and criminal policy, the latter, on the contrary, in
liberalization of tax legislation and decriminalization of tax
crimes. Arguments put forward by each side in defense of its
positions, have sufficiently substantiated arguments, and are due
a number of objective and subjective reasons and conditions (mainly
organizational-legal and socio-economic nature).
5. The author proposes the main directions for improvement
tax crime prevention systems in the Russian Federation,
taking into account the negative trends in the global economy (conducted
sanctions policy against our country in the period 2014-2015) and
internal economic instability of the state, the state
domestic law enforcement and tax system, namely:
Streamlining the information and analytical activities of law enforcement and tax authorities based on the construction unified system exchange of information (database on all offenses and crimes in the tax sphere in all regions of the Russian Federation, on the persons who committed them; including operationally significant information on the illegal actions of persons in the tax sphere committed in foreign countries against the interests of the Russian Federation, as well as an array information related to maintaining tax histories, etc.);
Increasing the efficiency of preventing tax crimes
by activating and coordinating the activities of all law enforcement and
tax authorities (departmental and interdepartmental interaction), and
also by including in this activity directly
taxpayers (representatives of the Russian business community) with
the purpose of providing them with proper individual preventive
impact and development of joint decisions on the most important
questions;
Development and adoption at the federal and regional levels
legislative programs aimed at streamlining and improving
the effectiveness of the mechanism for compensating for damages caused by tax
offenses and crimes to the budgets of various levels (including
including the consideration of the idea of implementing the institution of tax mediation);
Carrying out tax and criminal policy in the Russian Federation using an integrated approach that allows, on the one hand, to ensure the inevitability of punishment for committing tax crimes (to tighten tax control in relation to these persons, to prohibit being the founder of legal entities, to toughen criminal liability in the presence of a recurrence of a tax crime) on the other hand, to stimulate and encourage law-abiding and conscientious behavior of taxpayers within the framework of tax legislation (increase the number of tax benefits, reduce the number of tax audits).
6. Individual prevention of tax crimes is
the most important component of activities to prevent tax
crime, and is defined by the author as a joint activity
law enforcement and tax authorities as part of the ongoing
state tax and criminal policy to provide
corrective, educational and preventive impact on
persons who have committed a tax crime, and persons who repeatedly and
systematically violating tax laws using
special methods of preventive influence (method of persuasion,
assistance and coercion, etc.). In order to create conditions
optimal conditions for its implementation, it is proposed to introduce the practice
tax histories, which will be ensured by the protection of information,
provided by law.
It seems that the tax history should mean all information about the fulfillment of tax obligations and obligations to pay mandatory fees for citizens of the Russian Federation, individual entrepreneurs and legal entities - tax residents. The duty to form tax histories based on the information provided by the tax authorities should be assigned to a specialized law enforcement agency, which should be created taking into account historical experience and modern realities in the structure of the Ministry of Internal Affairs of Russia, the main functions of which will also be to identify violations of financial and tax laws, initiation of criminal cases, investigation and transfer of case files to court. The most important function of this body should be general activities to prevent crimes in the financial sector and individual preventive work with persons identified by them when monitoring tax histories in order to prevent them from tax crimes, as well as with persons convicted of tax crimes in order to prevent possible relapse. A distinctive feature of such a specialized body will be the presence in its staff of specialists of various profiles (lawyers, economists, etc.).
7. As the study shows, one of the main problems in the fight against
tax crime is the absence in the Criminal Code of the Russian Federation of the institute of criminal
liability of legal persons. Often criminally responsible for
natural persons are involved in the commission of tax crimes,
those who signed tax reporting documents or committed other actions that form the objective side of a specific tax crime, on behalf of the organization (for example, the chief accountant), and the persons who actually planned the crime (managed and founders of the organization) and extract real income, remain unpunished and continue to carry out economic activity.
In view of the foregoing, as well as the presence of extremely negative growth trends in the Russian Federation in the number of tax crimes committed by large commercial organizations, and an increase in the amount of damage caused to the state budget from such acts, the author proposes to introduce criminal liability of legal entities (organizations) for committing tax crimes through the following changes to the criminal law: 1) state Art. 19 of the Criminal Code of the Russian Federation, as amended, allowing organizations to be held criminally liable in specially established cases: “A sane individual who has reached the age established by this Code, as well as legal entities in cases specially provided for by the relevant articles of the Special Part of this Code, is subject to criminal liability”; 2) to differentiate the liability of individuals and legal entities by imposing property sanctions under Art. 199, 199.1, 199.2 of the Criminal Code of the Russian Federation on organizations; 3) to make additions to Art. 199.1, 199.2 of the Criminal Code of the Russian Federation, indicating legal status the subject of the crime - an individual, an individual entrepreneur or an organization; 4) to consider the possibility of adopting and subsequently enshrining in the text of the Criminal Code of the Russian Federation as criminal penalties applicable to legal entities, such types of penalties as “Liquidation of a legal entity”, “Prohibition of certain types of transactions by a legal entity”, “Termination of activities”, “Publication or dissemination of the sentence, either in print or by any other means of audio-video communication” (following the example of the French Criminal Code, Section II).
8. Despite some controversy regarding the content of the legislative wording “another way of tax evasion”, which was excluded from the text of Art. 198 and 199 of the Criminal Code of the Russian Federation by the Federal Law of December 8, 2003 No. 162-FZ, its existence was of great legal importance - it made it possible to significantly expand the list of ways to commit one of the listed tax crimes. As the study showed, criminals make extensive use of this gap. It seems that the restoration of this provision in the text of Part 1 of Art. 198 and part 1 of Art. 199 of the Criminal Code of the Russian Federation, will help to increase the effectiveness of the fight against tax crimes.
In addition, in order to improve the legal technique of the current Criminal Code of the Russian Federation, it is necessary to exclude from its text the provisions of paragraph 2 of the Note to Art. 198 of the Criminal Code of the Russian Federation and paragraph 2 of the Notes to Art. 199 of the Criminal Code of the Russian Federation, which duplicate the provisions of Art. 76.1 of the Criminal Code of the Russian Federation and create legal conflicts that impede the fight against tax crime.
Scientific and practical significance of the study. The theoretical significance of the dissertation research lies in the fact that the formulated theoretical provisions can be used to further study the problems of preventing tax crime. The dissertation details the concept, specifics and main trends of tax crime in modern Russia; proposed criminologically significant measures to prevent tax crime; the features of the criminal-legal characteristics and the problems of qualifying tax crimes are disclosed. Thus, the theoretical significance lies in the fact that the study makes a certain contribution to the development of criminology and criminal law, filling in the gaps.
The practical significance of the dissertation research lies in the fact that the findings and proposals can be used: in the legislative process to improve the current legislation in the field of combating tax crimes; in practical activities related to the detection, suppression, disclosure, and prevention of tax crimes (primarily by representatives of tax and law enforcement agencies, courts of general jurisdiction); individual recommendations can be implemented in the preparation of guiding resolutions of the Plenum of the Supreme Court of the Russian Federation. The content of the dissertation research material allows using it in teaching such disciplines as "Criminology", "Victimology", "Criminal Law" in educational institutions of higher education of a legal profile.
Approbation of the research results received expression in published scientific papers and speeches at conferences of various levels, including international and foreign ones.
The main provisions, conclusions and practical recommendations were presented by the author in his speeches at the following conferences: V International Scientific and Practical Conference "Politics and Law in the Socio-Economic System of Society" (Moscow, December 25-26, 2012); XI International Scientific and Practical Conference "Economics, Sociology and Law" (Moscow, December 25, 2012); international conference "Economics and law in modern society"(Volgograd, February 27-28, 2013); scientific and educational-methodical conference of the faculty, researchers and graduate students of the Voronezh State Agrarian University named after Emperor Peter I "Theory and practice of innovative technologies in the agro-industrial complex" (Voronezh, 2013); International Conference "The financial law towards challengers of the XXI century" (Gdansk-Nynnasharm-Stokholm, 2013); scientific and practical conference of the Faculty of Law of the Yelets State University named after I. A. Bunin (Yelets, 2013); international scientific and practical conference "Actual issues of economic activity in Russia and abroad: economic and legal aspect" (Voronezh, 2013); international
scientific and practical conference "Democratic ideals and pluralism of legal systems" (Moscow, 2014); scientific and educational-methodical conference of the faculty, researchers and graduate students of VGAU named after Emperor Peter I "Theory and practice of innovative technologies in the agro-industrial complex".
The dissertation was completed, discussed and approved at the Department of Criminal Law and Criminology of the Faculty of Law of the Federal State Budgetary Educational Institution of Higher Professional Education “Yelets State University named after I.I. I.A. Bunin.
Thesis structure corresponds to the purpose and objectives of the study and consists of an introduction, two chapters, divided into seven paragraphs, a conclusion, a list of used legal and scientific sources, applications.
The concept, state and features of tax crime in the Russian Federation
The study of the main characteristics of tax crime must begin with the study of the concept and essence of tax crime - the main component of the social negative phenomenon we are considering1.
So, tax crimes as a variety of economic crimes have an ancient origin and a long historical evolution2. It should be noted that experts rightly attribute their first mention to the time when the Bible was written, in connection with the discovery there of descriptions of acts reminiscent of modern legal structures of tax crimes3.
Roman public law contained a fairly high-quality regulation of the tax system and the procedure for paying mandatory payments. Duties were an integral part of the legal status of a Roman citizen and required strict observance. Civil public obligations to pay taxes and fees Arkady Kharisy in his book “On civic obligations» divided into three types: personal, property and mixed (D.50.4.18.28). The collection of taxes and guardianship of taxes were considered personal civil service; they were established not only by law, but also by the custom of the community (D.50.4.1.2). Other actions that were performed with funds received from real estate at a loss to its owners were property obligations (D.50.4.18.18). In addition, the sources of Roman law also mention the collection of wine tax, the purchase of oil, the supply of horses and other payments in kind to the treasury and mixed actions (D.50.4.18.19-21)1. As for the regulation of punishments for committing tax crimes in Roman law, unfortunately, this issue is not adequately covered in the monuments of legislation. Apparently, this situation developed due to the fact that taxes and fees were levied using all the power of the repressive apparatus of the Ancient Roman state. There were cases when the collection of taxes so ruined the Roman provinces that arrears were forgiven because of the insolvency of the population2.
In the Middle Ages and the New Age in Europe, this approach, of course, was preserved, which was fully explained by the historical and social realities of that time. However, with the further development of economic relations, changes in the social and social system, the situation begins to change dramatically.
Criminal prosecution for committing economic crimes began at a time when the socio-economic functions of the state gradually changed their vector towards more active intervention in the economic sphere in order to prevent social conflicts. Strive to build rule of law developed into the goal of creating welfare state which has always been accompanied by a significant increase in the economic well-being of the population. These processes inevitably entailed the formation of an extensive tax legislation and legislation on the protection of competition. That is why the system of economic crimes and criminal
In legal terms, Russia went its own way for a long time, and due to the originality of Russian legislation and the cultural and historical characteristics of the Russian ethnos, to a certain extent, it was in this area that it was a little ahead of Europe. At the same time, the oldest monument of criminal law was Russkaya Pravda, which, despite the detailed regulation of criminal penalties and the procedure for bringing to justice, did not contain any mention of tax crimes. A similar situation developed when reading the Novgorod and Pskov court letters, which, in our opinion, can only be explained by the dominance of subsistence farming and, as a result, the underdevelopment of economic exchange between cities and lands, as in medieval Europe. As a rule, the princes organized the collection of taxes (polyudye) together with their own armed squad, which almost completely excluded the possibility of non-payment or concealment of property. Originality of Russian Medieval Law V.V. Momotov explains that it was formed by layering princely legislation on common Slavic law under the simultaneous influence of a pagan worldview and the norms of Christian ethics, which determined its specificity, despite some borrowings from Byzantine sources.
Only the “Cathedral Code” of 1649 is characterized by a full consolidation of economic crimes among the ancient Russian sources of law. It indicated: unlawful collection of duties; insult, beatings and robbery while collecting a fee; property liability for the unlawful collection of duties from dependent people; responsibility for an attempt by servicemen to transport trade people with their goods under the guise of servicemen; attempt to evade duty by traffickers by impersonating
The famous Russian legal historian V.A. Tomsinov notes that, compared with the Sudebniks of 1497 and 1550. and with Russkaya Pravda, the Cathedral Code of 1649 “shows the unprecedented cruelty of criminal punishments, and this cruelty is presented here as an inalienable property of punishment.” This legal collection is characterized by the definition of "bloodthirsty". As an explanation of this property, the scientist gives the following arguments. “The establishment of a formal view of crime in Russian legal consciousness and secular legislation met the needs of the developing Russian statehood.” At the same time, the understanding of crime as a violation of the prescriptions of state power begins to prevail in the legislation in the era of the formation of a bureaucratic state (absolute monarchy), that is, punishments become more severe, and they are deliberately given a frightening significance2.
Main determinants of tax crime
According to the Federal State Statistics Service of the Russian Federation for 2014, the scale of the shadow sector of the economy in Russia is from 15 to 20% of the domestic gross product(hereinafter - GDP); according to independent experts - up to 40%; some give other figures - from 60-90% for certain sectors of the country's economy4. One of the main theses is the fact that the influence of factors shadow economy becomes so tangible that it endangers the national security of the country; tax avoidance schemes are evolving, becoming more sophisticated and “adapted” with respect to positive law and judicial enforcement every year. Experts note that criminal and judicial statistics largely reflect not crime itself, but the practice of responding to crimes by victims, as well as law enforcement agencies5.
On this occasion B.C. Ovchinsky rightly states that today criminal statistics have again become manageable and do not reflect real situation cases, that is, what is indicated in the statistics, is an imaginary latency - "adjustment" of crime rates to create the appearance of a favorable situation6.
Latency as a whole is determined by B.Ya. Gavrilov as a set of criminal acts unknown and known to law enforcement agencies that are not reflected in the official criminal code See: Gilinsky Yap. Deviance, crime, social control. Selected articles / Ya.I. Gilinsky. - St. Petersburg, 2004. - S. 209-210. legal or judicial statistics due to the imperfection of the normative legal regulation their accounting. As a rule, among the causes of latent crime, natural latency is singled out, which manifests itself in the fact that law enforcement agencies are not aware of crimes, since citizens do not report them. It is opposed to artificial latency, which occurs if law enforcement agencies become aware of crimes, but they did not register them2.
As Ya.I. Gilinsky, it is typical for totalitarian and authoritarian societies, so a similar situation was observed in Soviet times and is observed now. This is due to the level of detection of crimes, which can often be favorable only by hiding some indicators. It is possible to determine a significant error in the real level of crime and official data based on materials that record the number of victims of crimes and intentional homicides, which are characterized by low latency. If we take into account the indicators, then with an increase in the overall level of crime, there is no way that it can decrease. The reason for misregistration of crimes can also be borderline latency as a result of a legal error or delusion, when a criminal act is qualified as non-criminal or its severity is incorrectly determined.
According to I.I. Kucherov, the main reasons for the high latency of tax crimes are: the absence of victims and other persons (except for tax control bodies) interested in their detection; tolerant attitude of the population towards violators of tax laws; careful disguise; absence of obvious traces of crimes; the presence of a large period of time (from 1 year or more) between the moment of commission and detection of a tax crime; shortcomings in the activities of tax and law enforcement agencies1.
In addition, B.C. Ovchinsky emphasizes another of current trends Crime is of great importance since the beginning of 2009, the global financial and economic crisis, due to which the number of such crimes as fraud, forgery, counterfeiting, tax evasion has seriously increased. We noted earlier that the situation with the introduction of sanctions against domestic companies by Western countries, the worsening investment climate and the general state of the economy at the end of 2014 may also have an extremely negative impact on the level of tax crime.
At the same time, it is possible to predict with some certainty an increase in the number of registered tax crimes for the reporting period of 2014, since for a significant part of the Russian business community (according to the respondents from law enforcement and tax authorities we interviewed, more than 1/4 of entrepreneurs are not ready to lose real income and therefore can even commit illegal actions in the field of taxation for personal enrichment), which previously consistently received high income from entrepreneurial and other economic activities, the criminal way of evading taxes and fees in modern conditions remains the only way to maintain such stable income, as a result , a high standard of living for yourself, company employees, etc.
Criminologists point to three blocks of economic factors that affect the level of crime: first, the level of economic well-being in the country as a whole, determined by the average per capita income level and the degree of income inequality; secondly, the state of the labor market,
In accordance with them, the following conclusions were made that determine the trends in the dynamics of tax crime under the influence of economic determinants: income from legal activities and its growth have both a negative and positive impact on the growth of crime, since it determines not only the costs of lost opportunities, but also the benefits from crimes; income inequality increases crime; The impact of unemployment on crime is recognized as twofold.
It should be noted that the general state and dynamics of crime in the Russian Federation are subject to global trends in the socio-economic development of society. At the same time, the most important feature of economic crime in the Russian Federation is its high level of latency, which does not allow a realistic assessment of the scale of its spread, the number of crimes and the resulting damage.
The most objective reason for the difficulties in accounting for economic crimes is the folding in the Russian Federation in the 1990s. and the modern functioning of the "shadow economy", "shadow politics" and "shadow justice", which affect legal economic activity in the most destructive way. Moreover, it is the tax system that becomes the most vulnerable in this regard due to the withdrawal of shadow economic structures beyond the limits of its functioning.
Criminal policy in the field of tax crime prevention
So, let's consider in detail the third block of the tax crime prevention complex - finding a solution actual problems implementation of criminal policy.
Considering the prevention of tax crime in the Russian Federation, it should be recognized that one of the main reasons for the low efficiency of the fight against economic crime in the country is the presence of shortcomings in the regulatory framework in this area. Certain provisions of the Criminal Code of the Russian Federation relating to tax crimes also require revision, taking into account modern realities, the achievements of legal science and the needs of practice. Moreover, the improvement of the norms of the Criminal Law should be carried out in accordance with the goals and guidelines formulated at the highest state level. Unfortunately, in the formulation of goals and attitudes in the fight against both tax crime and economic crime in general, certain difficulties can be traced.
In particular, on March 6, 2013, by order of the Government of the Russian Federation No. 313-r, Government program of the Russian Federation "Ensuring law and order and combating crime" (hereinafter referred to as the Program on Combating Crime), the purpose of which is recognized as "improving the quality and effectiveness of combating crime, protecting public order, property, ensuring public safety and security traffic, as well as confidence in the internal affairs bodies of the Russian Federation on the part of the population. However, the document does not contain targets and a list of measures aimed at preventing precisely economic and tax crimes, which, in our opinion, is explained by the following.
The Government of the Russian Federation cites in the document the official statistics of the SIAC of the Ministry of Internal Affairs of Russia for 2012, according to which the dynamics of all registered economic crimes (-26.8%), including tax crimes (-39.9%), is negative. The reduction in the number of such crimes, according to the Government of the Russian Federation, is due to changes made to criminal, criminal procedure and tax legislation, adjustments by law enforcement agencies of measures taken in order to reduce pressure on business structures, as well as a general increase in the effectiveness of crime prevention measures as a result of targeted special operational and preventive measures. At the same time, it was noted that a certain inertia of crime, which, even if the measures to combat it are highly effective, has a positive effect with a delay of several years1. In this regard, the impact on the criminal situation of those socio-economic problems that arose or worsened in connection with the global financial and economic crisis, which has not yet fully manifested itself, as well as other negative trends in tax crime in the Russian Federation (including extremely high level of tax crime latency, problems of the justice system, real gaps in domestic legislation). As a negative result of such official conclusions, organizational and legal measures to prevent tax crime are not developed in a timely manner, so the problems remain unresolved. At the same time, it should be taken into account that all the targets contained in a certain set of legal acts add up to a specific formation, which is considered to be criminal policy.
IN developed countries In the West, a steady increase in crime has been observed in recent decades (the exception is Japan, the state of crime is traditionally assessed as low and stable1) and the higher the level of economic development of the country, the more crime grows, which is why an increase in the total number of crimes was noted in Germany, France and the Scandinavian states2. According to some data, the main characteristics of crime in the US and UK in the period from 1999 to 2014 are: an overall significant reduction in the level of crime and victimization on the example of violent crimes; latency over 50%; a consistently high level of public concern about crime; low level of public confidence in law enforcement agencies. However, both the US and the UK are still leaders in the global crime rankings. A similar situation, according to A. L. Smorgunova, has developed under the influence of the transformation of criminal policy in the United States and Great Britain, which was associated with a general tightening of punishments and the criminal justice system, namely, with a return to the practice of punishments that cause bodily, moral and moral suffering; more than long terms imprisonment; a significant increase in the amount of collateral; more rare amnesties, as well as early and conditional releases; mandatory registration of criminals who have committed crimes in the sexual sphere, etc.1
Currently, there is a general liberalization and humanization of the criminal policy of Russia, which affected, first of all, precisely economic sphere and was expressed in the partial decriminalization of tax crimes.
Leading Russian scientists, substantiating the crisis state of modern criminal policy, raise the question of whether it can be liberal in the current conditions. A certain departure from the repressive model of criminal law regulation and the mitigation of some criminal penalties are recognized by experts as unjustified3. In this regard, A.E. Zhalinsky believes that consideration of criminal law problems in modern Russian society is possible only on the basis of available social, resource, political and other opportunities, using the criminal law as an instrument of social regulation.
Based on this, it is concluded that the criminal legislation of the Russian Federation cannot be unequivocally recognized as liberal or liberal-conservative; some liberal ideas are relevant to any criminal law system; One of the goals of criminal law is to increase its effectiveness by minimizing resource costs and negative consequences. However, three features of liberalism are very important here: for its implementation, it does not need democracy;
Special measures to prevent tax crime
Taking into account the extremely negative trends in the growth in the number of tax crimes in the Russian Federation committed by large commercial organizations, and the growth in damage to the state budget from such acts, it is proposed to introduce criminal liability of legal entities (organizations) for committing tax crimes through the following changes to the criminal law:
1) state Art. 19 of the Criminal Code of the Russian Federation " General terms criminal liability" in the wording, which allows to bring organizations to criminal liability in specially established cases in the following wording: "A sane individual who has reached the age established by this Code, as well as legal entities in cases specially provided for by the relevant articles of the Special Part of this Code, is subject to criminal liability »;
2) to differentiate the responsibility of individuals and legal entities, imposing all property sanctions on organizations, changing the wording of the provisions of Art. Art. 199, 199.1, 199.2 of the Criminal Code of the Russian Federation: - in Art. 199 of the Criminal Code of the Russian Federation, the provision of the second paragraph of part 1 shall be stated in the following wording, excluding the property sanction for individuals: “is punishable by a fine in the amount of one hundred thousand to three hundred thousand rubles levied on the organization, or by forced labor for up to two years with deprivation of the right to borrow certain positions or engage in certain activities for a term of up to three years or without it, or by arrest for a term of up to six months, or by imprisonment for a term of up to two years with deprivation of the right to hold certain positions 251 or to engage in certain activities for a term of up to three years or without it »; - in Art. 199 of the Criminal Code of the Russian Federation, the provision of the second paragraph of part 2 shall be stated in the following wording, while excluding the property sanction for individuals: “is punishable by a fine in the amount of two hundred thousand to five hundred thousand rubles levied on the organization, or by forced labor for a term of up to five years with deprivation the right to hold certain positions or engage in certain activities for a term of up to three years or without it, or by deprivation of liberty for a term of up to six years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it”; - in Art. 199.1 of the Criminal Code of the Russian Federation, the provision of paragraph 2 of part 1 shall be stated as follows: “is punishable by a fine in the amount of one hundred thousand to three hundred thousand rubles levied from an organization or individual acting as a tax agent, or in the amount of wages or other income of the convicted person for the period from one to two years, or by forced labor for up to two years with or without deprivation of the right to occupy 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 by deprivation of liberty for a term of 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”; - in Art. 199.1 of the Criminal Code of the Russian Federation, the provision of paragraph 2 of part 1 shall be stated as follows: “is punishable by a fine in the amount of two hundred thousand to five hundred thousand rubles levied on an organization or individual acting as a tax agent, or in the amount of wages or other income of the convicted person for the period from two to five years, or by forced labor for 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 by deprivation of liberty for a term of up to six 252 years with deprivation of the right to hold certain positions or engage in certain activities certain activities for a period of up to three years or without it”; - in Art. 199.2 of the Criminal Code of the Russian Federation, the provision of paragraph two shall be stated as follows: “is punishable by a fine in the amount of two hundred thousand to five hundred thousand rubles levied on an organization or individual entrepreneur, or in the amount of the wage or other income of the convicted person for a period of eighteen months to three years, or forced labor for 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 by deprivation of liberty 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 one."
3) to amend Art. Art. 199.1, 199.2 of the Criminal Code of the Russian Federation, indicating the legal status of the subject of the crime - an individual, individual entrepreneur or organization;
4) to consider the possibility of adopting and subsequently enshrining in the text of the Criminal Code of the Russian Federation as criminal penalties applicable to legal entities, such types of penalties as “Liquidation of a legal entity”, “Prohibition of certain types of transactions by a legal entity”, “Termination of activities”, “Publication or dissemination of the sentence, either in print or by any other means of audio-video communication” (following the example of the French Criminal Code, Division II).
At the same time, the guilt of a legal entity (organization) should be recognized automatically if the guilty actions (inaction) of its managers or other persons responsible for the content of financial documents and their timely presentation (or failure to present) to financial authorities have already been established. Thus, legal entities (organizations) should be brought only to property liability and not instead of the guilty individual, but together with him on the basis of the provisions of the Criminal Code of the Russian Federation on complicity, which should also be extended to organizations.
We believe that this measure will help strengthen internal corporate control in business structures, which can become a powerful factor in counteracting tax crimes, as well as establish additional guarantees for compensating the affected budget level at the expense of legal entities.
It is proposed to revise the legislator's approach to the interpretation of the wording "another way of tax evasion", which was in force earlier and was excluded from the Criminal Code of the Russian Federation by Federal Law No. 162-FZ of December 8, 2003. We believe that its existence at the present time does not have the proper preventive value, since in recent years the number of methods of tax evasion has increased again, while they are constantly being improved, which cannot but affect the state of tax crime. To solve the problem, it is necessary: - to state part 1 of Art. 198 of the Criminal Code of the Russian Federation as follows: “Evasion of taxes and (or) fees from an individual by failure to submit 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 by inclusion in a tax return or such documents of deliberately false information, or evasion of payment and (or) fees in any other way, committed on a large scale - ...”; - state part 1 of Art. 199 of the Criminal Code of the Russian Federation as follows: “Evasion of taxes and (or) fees from an organization by not submitting 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 by including in a tax return or such documents of knowingly false information, or evasion of payment and (or) fees in any other way, committed on a large scale, - ... ".
Law is an effective regulator of the social development of all social relations, including those that develop in the field of crime prevention. First of all, it should be noted that for this type of social practice, the positive regulation of the normal course of social life by law is of great importance. The norms of constitutional, civil, labor, family and other branches of law stimulate the socially useful behavior of people, establish social relations that inherently oppose crime, eliminate (neutralize, block) the actions of its causes and conditions. In other words, the law contributes to the realization of the anti-criminogenic potential of the whole society, its institutions. The action of anti-criminogenic factors, being to some extent regulated by the norms of law, is carried out in relation to the tasks of crime prevention not spontaneously, but purposefully, i.e. as an integral part of scientifically based management of social processes. Public relations arising in the field of crime prevention are also carried out through legal prohibitions, by establishing legal liability for illegal behavior. The regulatory function of law in this case is complemented by a protective one and is of great importance for ensuring the effectiveness of crime prevention measures. The educational function of law also has a preventive effect, which is expressed in the impact legal means on the consciousness of people, contributes to the formation of their respect for the law, the habit of complying with its requirements. Finally, the service role of law in relation to the area under consideration social life manifests itself in the fact that it normatively fixes the optimal procedure for the implementation of crime prevention measures at the special criminological level, corresponding to public needs and interests: its tasks, types, system of subjects, their competence, basic forms and methods of work, etc.
Legal basis for the warning Crime has a complex structure, includes the norms of various branches of law.
Important provisions defining the role and importance of preventive activity, its content and direction, mandatory compliance with the principles of justice, humanity, legality, are contained in a number of international legal acts recognized by Russia: in the Universal Declaration of Human Rights of 1948, in the International Covenant on Civil and Political Rights of 1966, the Code of Conduct for Law Enforcement Officials, adopted by a Resolution of the UN General Assembly in 1979, the Guidelines on Crime Prevention and Criminal Justice (annex to the Milan Plan of Action, adopted at the Seventh United Nations Congress on the Prevention of Crime and the Treatment of offenders in 1985), the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by a UN General Assembly Resolution in 1985.
A number of provisions of the Constitution of the Russian Federation, Art. 2 which proclaims a person, his rights and freedoms as the highest value and establishes the duty of the state to respect and protect them. This fundamental duty is fulfilled different ways, including through the prevention by state bodies of criminally punishable infringements on the rights and freedoms of citizens. specification in ch. 2 of the Constitution of the Russian Federation of the rights and freedoms of man and citizen, the guarantees of their implementation provided for in it, the means of protection, permissible restrictions, establish the status of the individual, from which all state and public bodies should proceed, carrying out any type of activity, including the prevention of crime. In particular, when carrying out preventive measures It is unacceptable to diminish the dignity of a person (art. 21); no one has the right to enter the dwelling against the will of the persons living in it, except in cases established by law, or on the basis of judgment(Art. 25); no one can be deprived of his property except by a court decision (art. 35), etc. Recognition and protection of private, state, municipal and other forms of ownership, guarantees of the unity of the economic space, free movement of goods, services and financial resources, freedom of economic activity (Article 8 of the Constitution of the Russian Federation) determine the main areas of activity, the direction and overall strategy of the efforts of society and the state on the prevention of economic crime in market conditions. For the organization and implementation of victimological prevention, Art. 52 of the Constitution of the Russian Federation, which establishes that the rights of victims of crimes and abuses of power are protected by law, and the state provides victims with access to justice and compensation for the damage caused.
The significance of criminal law for the legal regulation of crime prevention is determined primarily by the fact that its norms outline the range of acts prohibited under the threat of criminal liability. The norms of the criminal law regulating the system of punishments, the procedure and conditions for their appointment, release from punishment, establishes a certain legal regime for convicts, as well as those released from criminal liability and punishment. Important elements of this regime, which create legal grounds for preventive work with persons of these categories, are the legal restrictions established for them, special rules and obligations, monitoring and control over them by law enforcement agencies and the public. Of great importance for the legal substantiation of individual measures to prevent the recurrence of crimes is the criminal law institution of a criminal record. The preventive effect of criminal law is also achieved through their impact on the legal consciousness of citizens. In addition to the norms with the so-called double prevention, when with the detection of one crime, the simultaneous prevention of another occurs, a number of articles of the criminal law can be distinguished that provide the subjects of preventive work with specific legal means of influencing criminogenic factors. These are, in particular, the norms that stimulate behavior that prevents the commission of crimes (on necessary defense, voluntary refusal to commit a crime, the application of coercive medical measures to alcoholics and drug addicts, etc.). The whole process of execution of punishments, which is regulated by penitentiary law, contributes to the prevention of crime. For the legal regulation of the prevention of recidivism of crimes, the norms of the penal legislation are of particular importance, regulating the procedure for release from places of deprivation of liberty, the labor and household arrangements of those released, the goals, grounds and procedure for monitoring those released on parole, administrative supervision of persons released from places of deprivation. freedom, and a number of others.
The importance of criminal procedural legislation for the legal regulation of crime prevention is determined primarily by the fact that it sets the appropriate task for all criminal proceedings. Along with this, the criminal procedural law establishes specific procedural measures of a preventive nature in the form of submissions by the body of inquiry, investigator, prosecutor, private rulings (decisions) of the court. Of great importance for the legal regulation of the prevention of crimes are the norms of the criminal procedure law, which, together with the relevant norms of substantive law, regulate the grounds and procedure for exemption from criminal liability and punishment due to changes in the situation, in connection with active repentance, in connection with reconciliation with the victim, with application of compulsory educational measures to minors, etc.
An important role in the legal regulation of crime prevention is played by the norms of administrative law. These include, first of all, the norms regulating the grounds and procedure for the implementation of measures of administrative warning, suppression and punishment (recovery). A pronounced criminological function is performed by administrative and legal means of combating drunkenness, drug addiction, prostitution, violations of trade rules, infringements on consumer rights, environmental offenses, etc. The preventive effect of the application of administrative and legal sanctions is manifested in terms of both private and general prevention, and also by influencing specific criminogenic situations, creating an environment that excludes the actual possibility of continuing illegal activities. The norms of administrative law establish the procedure for the activities of the police, control and other government agencies, their competence, duties and rights in the field of prevention of crime and other offenses are determined. Administrative law includes normative legal acts of sectoral executive bodies that regulate in detail their activities to prevent crime. Such, for example, are the Instructions adopted by the Ministry of Internal Affairs of Russia on the activities of the internal affairs bodies for the prevention of crimes, the Regulations on the Operational Headquarters of the Ministry of Internal Affairs of Russia for the prevention of crimes.
The norms of the considered branches of law bear the main burden in the legal regulation (legal regulation) of the crime prevention process. The nature of the complex, multifaceted preventive activity is such that it applies the norms of not only those branches of law that are directly aimed at combating crime, but also a number of others. These are the norms of civil (for example, article 30 of the Civil Code of the Russian Federation, which provides for the restriction of the legal capacity of citizens who abuse alcohol or drugs), family (for example, articles 69, 73 of the Family Code of the Russian Federation, regulating the grounds, procedure and consequences of deprivation or restriction of parental rights ), as well as labor, financial, land and other branches (sub-sectors) of law.
Concluding the review of the legal foundations of crime prevention, it is necessary to touch on the idea of preparing and adopting a special regulatory legal act regulating relations in this area. Proposals in this regard were made more than 20 years ago. Attempts were made to implement this idea in various forms: by preparing draft laws on the prevention (prevention) of crimes, the fundamentals of legislation on this issue, etc. So far, these attempts have not been successful. The main difficulty lies in the multidimensional, interdisciplinary nature of the legal support for crime prevention. Legal regulations governing crime prevention are included in many branches and sub-branches of law, which makes it difficult to bring them to some kind of integrity, clearly defined system within the framework of one legislative act. However, this does not exclude the possibility that over time an optimal solution to this issue will be found, for example, using codification, incorporation or other means of systematizing legal material. It is interesting to note that at one time in Russia there was a Charter on the Prevention and Suppression of Crimes (1857, 1876).
The implementation of the legal norms that make up the legal basis for crime prevention is an important, but not the only means of regulating this type of social practice. Like any purposeful activity, crime prevention must be properly organized.
When forming a crime prevention system that meets modern requirements, it is necessary to use the experience of the past, while not allowing borrowing from it that has not justified itself, obsolete elements (formalism, window dressing, passion for quantitative indicators, violation of the principle of voluntariness, human rights, etc.). This system should be built taking into account the new socio-economic conditions, the changed role of the state, on the basis of democratic values. One should not strive, as was the case in the past, for excessive centralization of crime prevention activities, the introduction into it of uniform forms and methods unified for the whole country.
The main links of social prevention are state, municipal bodies, public organizations and associations operating at the level of cities, districts, settlements, operating in microdistricts at the place of residence of citizens and directly at the objects of preventive protection.
Consideration of the organizational foundations of preventive activities presupposes a clear definition of its goals and objectives. For example, the goals of reducing the level, intensity and public danger of crime are achieved by solving the following tasks that determine the main directions of preventive activities. Firstly, in the course of crime prevention, a complex effect is provided on a wide range of subjective causes, conditions and other determinants of crime (everything that is covered by the concept of antisocial orientation or the position of the personality of people who can commit a crime, i.e. their antisocial views, interests and motives bad habits and so on.). Secondly, the type of activity under consideration contributes to the prevention and elimination of conditions for the unfavorable moral formation of a person, which can lead to the commission of crimes. Thirdly, there is a preventive effect on criminogenic situations and circumstances that contribute to the achievement of a criminal result. Fourthly, planned and prepared crimes are prevented, initiated crimes are suppressed. Fifth, through victimological prevention, protection from criminal encroachments of victims of crimes is ensured.
The solution of these tasks (the activities of the subjects of crime prevention in these areas) can be, as evidenced by domestic and foreign experience, organized in different ways. For all variants of differences, the following two are the most significant. This is, firstly, the creation of structures (services, divisions) that specialize only in preventive activities. For example, in the recent past, an independent crime prevention service operated in the internal affairs bodies throughout the entire vertical of the system. In some foreign countries, organizational structures are being created that specialize exclusively in victimological prevention or even certain types. Secondly, the tasks of crime prevention can be assigned to units that, to a certain extent, perform other functions.
Currently, preference is given to the second option for organizing preventive activities (with some exceptions related to the internal affairs bodies, where, as indicated, units or groups specializing in the prevention of certain types of crimes can be allocated within the existing services).
The optimal organization of preventive activities is unthinkable without its comprehensive, high-quality information support. About the content, about the volume, about the forms and methods of obtaining information that characterizes crime, its causal complex, the personality of the offender, is discussed in detail in other chapters of the textbook. When considering the organizational foundations of crime prevention, it is fundamentally important to emphasize that its information support should be carried out on the basis of a very broad approach. If we mean law enforcement agencies, then it should be said that it is their preventive activities that require the constant collection and use of a wide range of information related not only to internal, but also to external information. Along with legal and proper criminological information, this information is economic, political, social, demographic, socio-psychological, technological, medical, pedagogical, etc.
An integral element of the organization of crime prevention is its planning. The predominance of spontaneous variants in the formation and development of market relations has weakened the planned principles in the life of the whole society. It also affected such sphere as crime prevention. For example, the previously widespread practice of developing comprehensive plans for the prevention of crimes on the scale of districts, cities, regions, republics within the Russian Federation, within individual sectors of the economy, large enterprises, has basically ceased. Nevertheless, the planning of preventive activities continues in various forms and at various levels, because without this, it loses its purposefulness, and hence its effectiveness. As already noted, special sections relating to measures to prevent (prophylactic) crimes are included in federal programs Russian Federation to strengthen the fight against crime. There is experience in the preparation and implementation of regional and sectoral programs to combat crime, where informational, organizational, methodological and other aspects of preventive activities are widely represented.
According to individual (sometimes standard) plans, complex operations are carried out to prevent crimes of various types.
Crime prevention measures are reflected in the current work plans (sometimes in special sections) of law enforcement agencies, their services, as well as in the individual plans of employees.
The effectiveness of preventive activities is directly dependent on the level of interaction between a wide range of its subjects (including those that are not covered by the coordinating function of the prosecutor's office). Practice has developed various forms interaction between specialized and non-specialized, state and non-state actors of crime prevention. This is the mutual exchange of criminological and other information, joint planning of preventive measures, holding meetings, business meetings to coordinate efforts to prevent crime, mutual consultation on these issues, joint practical activities with assistance to each other, consistent (so-called relay race) work, etc.
Control as an element of the organization of crime prevention includes systematic monitoring and verification of the implementation of relevant plans, programs, decisions. It can be departmental or non-departmental and is carried out in specific organizational forms characteristic of various subjects of preventive activities.
Finally, an important element in the organization of preventive activities is its financial, logistical, personnel and other resource support. This side of the matter is of particular importance in the transition to market relations. It became possible to carry out financial, logistical support for the prevention of crimes at the expense of funds not only state budget, but also non-state commercial structures, in particular, various kinds of funds, associations, private enterprises. Honest business, conscientious entrepreneurs are interested in a strong law and order, and it is very important to use this in the interests of preventing crime and other offenses (of course, taking into account the state policy to combat crime).
With regard to staffing, one should first of all speak in favor of strengthening educational institutions criminological training of specialists for law enforcement, regulatory authorities and other subjects of preventive activities. Employees of these bodies should have a higher criminological culture than they do now.
Certain reserves for increasing the effectiveness of preventive activities are contained in consistent specialization in it. structural divisions or at least individual employees, combined with specialized training, retraining and advanced training.
The necessary organizational and financial conditions must be created to involve various experts from among specialists in the field of economics, political science, social work, psychology, pedagogy and other branches of knowledge in solving various and complex problems of crime prevention.
Along with the legal and organizational foundations, crime prevention is based on certain tactical principles and provisions. The core of any tactics is methods, methods of action that ensure the correct direction, content and forms of activity, the most expedient and effective implementation of measures to achieve specific goals. Methods of preventive work are considered in the Special Part of the textbook in relation to the tasks of preventing crimes of certain types. These techniques can be grouped under crime prevention methods. These primarily include the method of persuasion in the broadest sense of the word. They convince (and convince) the threat of criminal punishment, the speeches of law enforcement officers in the media on combating crimes, preventive conversations of police officers with persons released from places of detention, and much more that is carried out in the process of crime prevention.
The goals of crime prevention are also achieved by identifying and eliminating objective (external) causes and conditions that contribute to the commission of crimes. Of paramount importance here is the provision of real social assistance to persons subjected to preventive action in resolving issues of life arrangement.
Finally, in cases and in order, statutory, coercion is used as a method of crime prevention.
- Order of the Ministry of Internal Affairs of Russia dated January 17, 2006 No. 19 "On the activities of the internal affairs bodies to prevent crimes."
- Civil Code Russian Federation: part one dated November 30, 1994 No. 51-FZ.
- Family Code of the Russian Federation dated December 29, 1005 No. 223-FZ.
Proshin Vladimir Mikhailovich,
PhD in Law, Associate Professor, Professor of the Faculty of Law, International Slavic Institute advokat.proshin.v. [email protected] co Vladimir M. Proshin
Candidate of Legal Sciences, Associate Professor, Professor of the Faculty of Law International Slavic Institute advokat.proshin.v. [email protected] co
Measures to prevent tax crimes
Annotation. The author explores the task of preventing the commission of tax crimes not as the main one in the system of forensic theory and practice, but as having an indirect character from the activities of the investigator in the search and application of effective methods, methods and means at all stages of his work on investigating a crime. Therefore, the preventive work of law enforcement agencies to prevent the commission of tax crimes is proposed to be built on the basis of an analysis of the totality of all evidence collected in a criminal case and, based on the results of this analysis, the initiation of the adoption of regulatory measures and in the current response mode to eliminate the facts and circumstances used by taxpayers in their activities as elements of the mechanism for committing a tax crime.
Key words: prevention of tax crimes, prevention of crimes, tasks of forensic science, investigation of tax crimes, criminal event, measures to prevent tax crimes.
Abstract. The author investigates the task of preventing the commission of tax crimes not as the main one in the system of criminalistics theory and practice, but as having an indirect character from the activity of the investigator in the search for and application of effective methods, methods and means at all stages of his work to investigate the crime. Therefor, the preventive work of law enforcement agencies in preventing the commission of tax crimes is proposed to built on the basis of an analysis of the totality of all evidence collected in the criminal case and, on the basis of the results of this analysis, initiating the adoption of regulatory measures and in the regime of the current response to eliminate the facts and circumstances used by them in the activities of taxpayers as elements of the mechanism of committing a tax crime.
Key words: prevention of tax crimes, preventing the commission of crimes, the tasks offorensic science, the investigation of a tax crime, a criminal event, measures to prevent the commission of tax crimes.
Some scientists believe that crime prevention is an independent function of forensic science. Other scientists do not give the prevention of crimes the status of an independent task of forensic science.
They consider this activity to be an indirect goal, which is achieved in the process of solving the main tasks of forensic activity to solve a crime.
In these works, investigative, operational-search, tactical and analytical methods are considered as the basis for identifying the causes of crimes, the necessary legal platform for developing measures to prevent and prevent them.
So, I.Ya. Friedman makes a proposal to create an independent "preventive" section in forensic science.
V.P. Kolmakov is a supporter of the development of a private forensic theory dedicated to crime prevention.
I.I. Ivanov, exploring the issues of forensic prevention in the context of this scientific position, writes about private theory as a system of scientific provisions and practical recommendations on the patterns of development and use of technical means, tactical and methodological techniques in criminal proceedings to prevent planned and prepared crimes.
A.I. Vozgrin argues that the preventive activity of the investigator is a necessary structural element of any private methodology for investigating crimes.
Without questioning the existence of crime prevention tasks in the system of forensic theory and practice, it should be noted that the solution of this problem in forensic science is not the main one.
From our point of view, the preventive and preventive work of the investigator is carried out at all stages of his work on investigating a crime, given that the function of preventing crimes during the work of the investigator in a particular case is not isolated, but is indirect from the activities of the investigator to find and apply effective methods, ways and means of solving crimes.
Based on the results of the investigation of tax crimes, the establishment of the causes and conditions for their commission, as well as the circumstances that contributed to the commission of these crimes, implies the need to take measures to prevent the commission of crimes in the future, especially since the adoption of such measures is one of
tasks of criminal law along with the tasks of protection (part 1 of article 2 of the Criminal Code of the Russian Federation).
The preventive work of law enforcement agencies to prevent the commission of tax crimes is an analysis of the totality of all evidence collected in a criminal case and, based on the results of this analysis, the initiation of the adoption of regulatory measures and in the current response mode to eliminate the facts and circumstances in the activities of taxpayers that they use as elements of the mechanism for committing tax crime, to create a civil-political and socio-economic environment that forms the level of legal awareness and psychophysical properties of the individual, excluding the need or possibility of committing motivational-volitional actions (inaction) that make up the objective side of the corpus delicti of the corresponding tax crime, as well as studying and neutralizing the process combining factors of a criminal orientation into a set that forms forensic patterns of a causal gradual change in the spatio-temporal states of a person's life activity, causing his movement to a criminal event.
Based on the scientific and theoretical understanding of the prevention of tax crimes, the system of specific preventive measures in this matter, in our opinion, could be implemented in the following forms and directions.
1. As the analysis of more than two hundred materials of criminal cases on tax crimes showed, most of the elements of the mechanism for their commission are the same in form and content, having many coinciding characteristics, which indicates the typification of the standards of the mechanism for committing tax crimes.
This circumstance, subject to effective interaction law enforcement and tax authorities in the matter of current control over the fulfillment by taxpayers of their tax obligations, allows you to neutralize the formation of standard mechanisms for committing tax crimes in the activities of a large number of taxpayers, using the possibility of purposeful application of attention and efforts.
2. It is necessary to use the legal opportunities and powers granted to the internal affairs bodies and investigative bodies as often as possible and more effectively, which are associated with the opportunity to participate, together with the tax authorities, in the field trips they conduct. tax audits(Article 36 of the Tax Code of the Russian Federation). This participation will enrich representatives of law enforcement agencies with vast experience in legal analysis of the taxpayer's activities in the current civil law and tax legal relations, as well as, in case of
identifying forensic patterns of movement of the taxpayer (his representative) to a criminal event, will allow for the implementation of preventive response measures.
3. If information about circumstances requiring the performance of actions attributed by tax legislation to the powers of tax authorities is revealed by the operational-search method or as a result of falling into the hands of representatives of law enforcement agencies in another way, it is necessary to achieve in statutory the deadline for the decision of the tax authority on the qualification of this information and immediately proceed to further work with this information if they indicate the possibility of a tax crime committed or being prepared to be committed.
4. In order to form a stable understanding of the inevitability of responsibility for a tax crime, it is necessary through the media to bring the results of the investigation of tax crimes to the consciousness of every taxpayer.
5. It is necessary, through scientific publications, educational and explanatory work through the media, to more aggressively influence the formation of the taxpayer's legal consciousness about the importance and role of observing public and private interests in taxation matters, about the socio-economic impact of the effective functioning of the state tax system on the well-being of each of its citizens and on the position of the state in the world market and in the political world order.
6. The starting point in the commission of a tax crime is a violation of the legislation on taxes and fees. Therefore, taking into account the staging of the movement towards the investigation of a tax crime, it is necessary to understand the essence of the violated norm of the legislation on taxes and fees and what is the composition of the tax offense committed in the opinion of the tax authority. Therefore, analysis and study judicial practice on tax disputes and interpretation Supreme Court Russian Federation, the Constitutional Court of the Russian Federation, the norms of tax legislation on the legal nature of the facts underlying the taxpayer's obligation to pay taxes, will be a very important basis for preventive work. This work is related to the proper response of law enforcement agencies at the stage of the start of work of the initiating impulses of the movement of the taxpayer (his representative) to a criminal event or at the initial stage of the formation of a mechanism for committing a tax crime.
7. Based on the generalization of the experience of investigating and disclosing tax crimes, initiating changes or additions to the legislation on taxes and fees, criminal and criminal procedural legislation related to the elimination of gaps or shortcomings discovered during the investigation,
hindering the effective fight against crime in tax legal relations.
Literature:
1. Fridman I.Ya. Questions of prevention of crimes in the forensic examination of documents. Kyiv: KNIISE, 1968. S. 18, 101-102
2. Kolmakov V.P. Some issues of forensic prevention of crimes // Soviet state and law. 1961. No. 12. S. 107
3. Ivanov I.I. Forensic prevention: a comprehensive study of the genesis, state, prospects: author. dis. ... Dr. jurid. Sciences. M., 2004. S. 206
4. Vozgrin I.A. Introduction to Forensic Science: History, Fundamentals of Theory, Bibliography. S. 314.
5. Criminal Code of the Russian Federation. 06/13/1996 No. 63-FZ.
6. tax code Russian Federation. July 31, 1998 No. 146-FZ.
1. Fridman I.Ya. Questions of crime prevention for forensic examination of documents. Kiev. KNISE, 1968. P. 18, 101-102.
2. Kolmakov V.P. Some issues of criminalistics crime prevention // Soviet state and law. 1961. No. 12. P. 107.
3. Ivanov I.I. Forensic prevention: a comprehensive study of genesis, condition, prospects; the authors abstract of the dissertation of the doctor of juridical science. M. 2004. P. 206.