Selections from magazines to the accountant. Selections from magazines to an accountant Elements of a tax offense

Everything that is written in legislative acts Russian Federation, no matter what area of law they belong to, it is mandatory for all citizens of our country to comply. The Tax Code is no exception: all citizens and organizations must strictly comply with its requirements and not allow inaction where active and timely obligations are provided.

What is called a tax offense (NP), what types of them are provided for by the current legislation?
What forms of liability can be provided for violations in the field of tax law?
What can mitigate the guilt of violating the Tax Code?

Let's analyze in this article.

Legislative definition

Giving citizens a range of obligations and prohibitions, called laws, the state clearly outlines those factors that go beyond these limits, that is, they are offenses.

In Art. 106 of the Tax Code, a fairly strict definition of a tax offense is given. It is an act or omission committed by a withholding agent, taxpayer or other person found guilty and subject to liability under Federal Laws:

No. 146 of July 31, 1998, approving part 1 of the Tax Code of the Russian Federation;
No. 117 of August 05, 2000, approving part 2 of the Tax Code of the Russian Federation.

Chapter 16 of the Tax Code of the Russian Federation lists the types of non-compliance, as well as the categories of persons and / or organizations that may be held liable for each specific type of non-compliance. P.6 Art. 108 of the Tax Code of the Russian Federation together with Art. 49 of the Russian Constitution affirms the principle of the presumption of innocence, including in the field of tax violations.

Art. 114 of the Tax Code of the Russian Federation defines the tax sanction imposed for the commission of certain types of NP - this is the degree of responsibility for the committed guilty act (action or inaction) related to the tax sphere.

REFERENCE! Different types of liability can be established for tax violations. Responsible for the administrative administrative code of the Code of Administrative Offenses of the Russian Federation (Articles 15.3 - 15.9 and 15.11); if criminal liability is provided for violation of the Tax Code, it occurs in connection with the data of Ch. 22 of the Criminal Code of the Russian Federation.

Legally significant signs of NP

Signs that are legitimate from the point of view of the current regulations logically follow from the definition given in the text of the Tax Code of the Russian Federation.

Wrongfulness. An action or inaction committed by a person or organization must fall under the provisions of the Tax Code. It is impossible to violate the norm, which is not such according to the text of the Law. An example of an unlawful act is the LLC refused to provide the documents or data requested by the INFS. An example of illegal inaction is a tax return not filed.
Guilt. The action or omission was committed intentionally or through negligence, which does not negate responsibility for it. The absence of guilt in the act of the accountable person automatically relieves him of responsibility, since one of the main principles of NP is violated.
Having consequences. The committed act caused the onset of harmful consequences for the state or other persons, individuals and / or legal entities, and the relationship between the act and the consequences is justified and proven. Such consequences can be damage, loss of profit, violation of rights, etc.
Punishability. Each committed NP provides for the bearing of a certain responsibility for it, that is, the onset of sanctions for the person/organization that committed it.

These signs are typical for all NPs, while each specific violation has an individual composition that determines the specifics of sanctions for it.

NP classification

In order to correctly determine the measure of responsibility, it is necessary to distinguish different types NP allocated depending on:

the object to which the act was directed;
the nature and “targeting” of the NP;
the scope of the Tax Code in which the violation was committed;
category of the violator;
composition of the violation.

Separation of NP by objects

The object of the Tax Code, in relation to which an unlawful act may be committed, makes it possible to distinguish the following types of NP:

related to payments of taxes and fees, causing financial consequences for the state budget;
allowing violation of established procedures in the tax industry.

"Targeting" and the nature of the NP

The direction and features of the committed action or inaction determine its belonging to one of the following types:

unacceptable inaction in the field of tax accounting (Articles 116-117 of the Tax Code of the Russian Federation);
improper fulfillment of tax accounting and reporting obligations (Articles 119-120 of the Tax Code of the Russian Federation);
non-fulfillment of obligations related to the transfer, withholding the collection of tax funds (Articles 122-123 of the Tax Code of the Russian Federation);
obstruction of the legal fulfillment of the duties of tax authorities (Articles 125-129 of the Tax Code of the Russian Federation).

Classification of NP by areas of activity

Offenses can be associated with various tax areas of activity:

with the current taxation system;
with the rights and freedoms of taxpayers;
with guarantees of fulfillment of obligations on tax payments;
with a legally established accounting and reporting procedure;
non-use of the revenue part of the budget of one level or another.

NP depending on the culprit

The subject of a tax offense may be:

an individual who has reached the age of 16, if his act cannot be attributed to the jurisdiction of the Criminal Code;
individual and / or legal entity that allowed the NP.

Composition of NP

Differentiating the degree of danger of the committed tax offense, the following types of it are distinguished:

the main composition of the NP - it includes only the necessary signs of a violation defined by law, and additional ones are not provided (examples: failure to comply with the deadlines for registration with the tax authority, late payment of tax, etc.);
qualified composition of the NP - along with the main ones, there are additional signs of the public danger of the committed act (for example, a long delay in filing a declaration);
privileged composition of the NP - the main signs are present, but along with them there are also extenuating circumstances, due to which the level of public danger of the act turns out to be lowered (for example, it was not an individual entrepreneur who overdue the tax return, but just an individual).

Code of Responsibility

A guilty act relating to the tax sphere may be accountable to various branches of law.

1. Tax crimes for which criminal law provides. The most serious of the NPs, bearing negative consequences for the state financial system and a threat to its functioning:

evasion of customs payments;
evasion of taxes and fees for individuals;
the same for organizations.

FOR YOUR INFORMATION! The scale of the NP matters - for a crime it must be committed on a large or especially large scale.

Punishment for a criminal offense can be the following sanctions:

monetary penalty;
a ban on holding certain positions for a specified period;
deprivation of titles, privileges, awards;
forced corrective labor;
restriction or deprivation of liberty;
placement under arrest;
military service limitation.

ATTENTION! The amendment to the Federal Law No. of December 29, 2009 makes it possible to avoid criminal liability for those who committed a violation for the first time, if he atoned for his act with full compensation for arrears.

2. Tax offenses- violations in which there are no signs of a tax crime, qualified by the Tax Code of the Russian Federation itself or the Administrative Code. These can be such NPs:

violation of the deadlines for reporting, registration, payments;
lack of mandatory registration;
failure to provide the required documentation or missed deadlines;
violation of the rules and procedures of tax and accounting;
non-payment or incomplete payment of tax fees in small amounts.

Punishments for such misconduct, provided for by the Tax Code of the Russian Federation, consist mainly in monetary fines, the amount of which is calculated depending on the amount of arrears or damage.

When a legal entity or individual is innocent

It is impossible to hold a person or organization liable for IR if the guilt is not proven by the relevant competent authority. No one is obliged to prove his innocence, only guilt is subject to proof. If doubts are unremovable, they must be interpreted in favor of the accused party. The following factors are completely excluded:

committing an act in an emergency situation (catastrophe, natural disaster, etc.);
legal incompetence of the person who committed the NP (for example, a disease state);
a written justification for the action or omission committed before it is assessed by the competent authorities.

Extenuating circumstances for NP

If a person or organization is characterized by one or more of the following factors, the responsibility for committing an NP can be somewhat mitigated:

repentance;
voluntary appearance with information about the violation committed;
self-prevention of harmful consequences;
compensation for damage caused by one's own free will;
special personal condition (affect), difficult circumstances;
present threat, coercion, objective dependence.

IMPORTANT! Authorities making decisions regarding NP may expand the list of extenuating or exonerating circumstances.

Aggravating circumstances for NP

Sanctions for a violation may be increased if the following circumstances are established in relation to the person who committed the illegal act:

recurrence of the violation committed in the same year;
continuation of the act, despite the warning about the need to stop;
group form NP;
involvement in the act of minors;
committing NP in a state of intoxication, etc.

General requirements for liability for NP

The statute of limitations for tax offenses is a three-year period, after which it is impossible to be held accountable for NP.
One year is the period during which the sanction imposed for the IR is considered valid. If a repeated AP is committed during this year, it will be recognized as an aggravating circumstance, entailing the strengthening and extension of sanctions.
A person guilty of the same offense cannot be sentenced to sanctions twice.
Liability for tax crimes or misdemeanors does not relieve the perpetrators of the obligation to pay arrears.

Types of tax offenses and liability for their commission are established by Chapter 16 of the Tax Code of the Russian Federation.

All tax offenses can be divided into groups:

1) related to violation of the procedure for registration with the tax authority:

2) related to violation of the procedure and method for submitting a tax return and other information:

Article 118
Article 119
Article 119.1. Violation of the established method of submitting a tax return (calculation).

3) related to the submission of false financial information to the tax authority (tax agent), or failure to provide the necessary information:

Article 119.2. Submission to the tax authority by the managing partner responsible for maintaining tax records, the calculation of the financial result of the investment partnership, containing false information;
Article 120
Article 122.1. Report by a member of a consolidated group of taxpayers to the responsible member of this group of false data (non-disclosure of data), which led to non-payment or incomplete payment of corporate income tax by the responsible participant;

4) related to non-payment or incomplete payment of taxes (fees), including by a tax agent:

Article 122
Article 123

Separately, one can single out article 125 “Failure to comply with the procedure for possession, use and (or) disposal of property that has been seized or in respect of which the tax authority has taken interim measures in the form of a pledge.”

Sanctions provided for by the Tax Code of the Russian Federation for committing tax offenses:

1. a fine in a specific amount;
2. penalty as a percentage of income received for a certain period, but not less than the amount specified in the law;
3. penalty as a percentage of the unpaid amount of tax;
4. penalty as a percentage of the amount to be withheld and (or) transferred.

Characteristics of tax offenses

According to Art. 106 Tax Code of the Russian Federation tax offense an unlawful (in violation of the legislation on taxes and fees) act (action or inaction) of a taxpayer, tax agent and other persons, for which liability is established by the Tax Code of the Russian Federation, is recognized.

This definition contains the following set of the most important legal features of a tax offense.

Wrongfulness of the act

A tax offense is an act that violates the norms of legislation on taxes and fees. Wrongfulness is a legal form (expression) of the material characteristic of the social property of a tax offense. Only an act provided for by the legislation on taxes and fees is considered a tax offense. Consequently, acts that contain elements of offenses listed in chapters 16 and 18 of the Tax Code of the Russian Federation, but do not violate the legislation on taxes and fees, cannot be classified as tax offenses.

An illegal act can be committed in the form of an action (for example, preventing tax officials from accessing the taxpayer’s territory; refusing to provide the tax authorities with the necessary information, etc.) or inaction (for example, failure to submit reports to the tax authorities; failure by the taxpayer to pay the amount of tax due; failure to transfer the bank to the budget of relevant tax payments on behalf of their clients, non-withholding by a tax agent of the amount of personal income tax, etc.).

Guilt

A tax offense is committed guilty (intentionally or negligently). Guilt means the mental attitude of a person in the form of intent or negligence to what is being committed, provided for by the Tax Code of the Russian Federation.
action and its consequences. The form of guilt is an obligatory sign of a tax offense, since one or another of its types is always contained in the norms of the Tax Code of the Russian Federation that determine the offenses, and most of the offenses
tax offenses established in it, presupposes the presence of a negligent form of guilt.

With regard to tax offenses, the volitional signs of a guilty mental attitude are expressed in the desire for an offensive, in a conscious assumption, counting on the prevention of consequences. If the offender does not have the will to commit a tax offense, he is responsible for not using his abilities to prevent harmful consequences;

Punishability of the act

The commission of a tax offense entails negative consequences for the violator in the form of tax sanctions. Punishability is a formal sign of a tax offense, since a tax offense is a committed illegal act of fiscally liable persons, the responsibility for which is provided for by the Tax Code of the Russian Federation. The establishment of liability for tax offenses only by the Code is an imperative norm, and, thus, no other regulatory legal acts may contain provisions relating to tax liability.

The essence of punishability as a formal sign of a tax offense lies in the threat of punishment to the perpetrators if they violate the prohibition to commit any acts or not to perform actions, the legal features of which are enshrined in chapters 16 and 18 of the Tax Code of the Russian Federation.

The determination by the authorized bodies in the behavior of the person held liable of all legal signs of a tax offense provides grounds for qualifying the act committed by him as a tax offense and applying appropriate measures of influence.

A tax offense is the actual legal basis of legal liability and, therefore, is characterized by a set of objective and subjective features that form the composition of a tax offense, which is the signs (elements) established by the norms of tax law, the totality of which allows us to consider an illegal act as a tax offense.

Composition of a tax offense

The structure of a tax offense is formed by four elements:

1. an object,
2. objective side,
3. subject and
4. subjective side.

Object of the tax offense constitute public relations protected by law that develop in the tax sphere. The object of the offense is that which it infringes upon, causes or may cause any harm. Tax offenses are characterized by the generality of the object of encroachment - this is the fiscal competence of the state and its legitimate interests in tax relations, protected by tax legislation. The common object of tax offenses can be both substantive and procedural rights of the state: violations of tax legislation prevent the full formation of revenues of budgets and extra-budgetary funds, do not allow tax control, violate the rights of law-abiding taxpayers, etc.

The direct objects of a specific tax offense may be imperatively established relations for the collection of taxes and fees, relations for the implementation of tax control, as well as in cases expressly provided for by the Tax Code of the Russian Federation, relations in the process of exercising control over the payment of customs payments.

objective side- a set of signs of illegal acts provided for by the norms of tax law and characterizing the external reflection (manifestation) of tax offenses in reality. The grounds for bringing to responsibility for tax offenses, as well as for violations by banks of the legislation on taxes and fees, are established by the Tax Code of the Russian Federation.

Signs of illegality of acts provided for by the norms of tax law:

1) mandatory;

Mandatory signs of the objective side of tax offenses should be considered:

the wrongful act itself and its result,
the presence of a causal relationship between the act and the result (consequences).

The violator of the tax legislation is subject to liability only if the socially dangerous consequences that have occurred are in direct causal connection with the committed illegal act. With regard to tax offenses with a material composition, it should be taken into account that the absence of a causal relationship is the basis for exempting a person from tax liability.

2) optional.

Optional features of the objective side of tax offenses are:

a place,
way,
situation,
time,
systematic and
repetition of the offense.

The situation in which the offense was committed is taken into account to qualify a number of tax offenses. For example, the conduct of activities by the organization without registration with the tax authority.

The time of the tax offense is important for its qualification, since it allows you to determine the tax period in which the violation occurred, and, thus, correctly choose the tax law norm to be applied. For example, a gross violation by the organization of the rules for accounting for income, expenses and objects of taxation, committed during more than one tax period.

Systematic also named by the legislator as one of the signs of a tax offense. For example, paragraph 3 of Art. 120 of the Tax Code of the Russian Federation qualifies a gross violation of the rules for accounting for income, expenses and objects of taxation as a systematic untimely or incorrect reflection on the accounts and statements of business transactions, cash, material values, intangible assets and financial investments of the taxpayer.

The repeated commission of a tax offense is classified by the Tax Code of the Russian Federation as a qualifying feature that affects the size of the tax sanction.

Acts constituting the objective side of tax offenses can be expressed both in actions and inaction. With regard to tax offenses, the legal characteristic of inaction does not differ from an unlawful act, since the essence of inaction in tax law lies in the failure of a fiscally liable person to comply with imperative prescriptions of legal norms, although he is obliged and can commit them. Committing an offense in the form of inaction, the subject of tax relations does not pay due taxes, does not submit declarations to the tax authorities, does not keep financial records, etc. In this case, an unscrupulous participant in tax legal relations is subject to liability for legal inaction, expressed in failure to comply with the actions established by the legislation on taxes and fees.

Subject of a tax offense- a person who has committed a violation of tax laws and who, in accordance with applicable law, may be held liable.

The general subject is determined on the basis of the provisions of the Tax Code of the Russian Federation. Since tax offenses are committed by individuals and organizations, the common subjects of tax offenses can be individual entrepreneurs and legal entities:

- taxpayers - Russian organizations, foreign and international organizations, branches and representative offices of foreign and international organizations established on the territory of the Russian Federation, citizens of the Russian Federation, foreign citizens and stateless persons;
- fee payers;
- tax agents - Russian and foreign organizations, as well as individual entrepreneurs;
- legal representatives of a taxpayer - an individual;
- witnesses, translators, experts, specialists and other fiscally liable persons;
- organizations and individuals who are recipients of imperatives (restrictions and government orders) established by tax legislation that are not directly related to the payment of taxes and fees.

A special subject of a tax offense can only be a person directly named in the norm of the Tax Code of the Russian Federation describing the specific composition of a tax offense. For example, the subject of such an offense as tax evasion can only be an organization or an individual entrepreneur.

The subjective side of the tax offense represents a set of signs that reflect the inner side of the unlawful act (action or inaction) and characterize the internal mental processes occurring in the mind of the offender regarding the deed and its consequences.

The principle of bringing to legal responsibility only for the commission of a guilty act is the starting point for all public branches of law, including tax law. According to paragraph 1 of Art. 110 of the Tax Code of the Russian Federation, a tax offense can be completely intentional or negligent.

Classification of elements of tax offenses

according to the degree of public danger:
- main (simple) - contains the minimum necessary set of objective and subjective features;
- qualified - contains signs that increase the level of public danger of the deed;
- privileged - contains signs that reduce the level of public danger of the deed.
according to the design features of the objective side:
- material;
- formal.
according to the form of committing an unlawful act:
- actions taken as a result;
- committed as a result of inaction;
- committed as a result of a combination of actions and inaction (with a mixed objective side).
on the direct object of the offences:
- on the material fiscal rights of the state, i.e. violating public relations regulated by tax legislation, ensuring the payment or withdrawal of tax;
- on the procedural fiscal rights of the state, i.e. violating public relations regulated by tax legislation, ensuring the registration of taxpayers, the production of tax control, the implementation of proceedings in cases of tax offenses.

Tax offenses are intentionally or negligently committed actions or omissions of a taxpayer, payer of insurance premiums, a tax agent and other persons that violate the legislation on taxes and fees and give rise to liability under the Tax Code of the Russian Federation. Let's talk about the concept, functions and features of tax liability, its grounds. Let us explain in what order they are attracted to it, what circumstances free it from it. Let's talk about what can mitigate it or, conversely, aggravate it. We will also look into the types of liability that threatens for violation of tax laws.

What does NK say?

Tax offenses and liability for their commission - this is literally the name of section VI of part one of the Tax Code of the Russian Federation ( ch. 15- ). The first of them regulates the general provisions on responsibility for the relevant acts. The tax liability of the Tax Code of the Russian Federation is regulated in ch. 16 and 18, which describes specific violations with subsequent penalties for their commission.

The concept, functions and signs of tax liability

The concept of tax liability is as follows: it is the use by the competent authorities in relation to taxpayers and other persons facilitating the payment of mandatory payments who have committed a fiscal offense of appropriate sanctions. The Tax Code uses the term "tax liability" and the term "responsibility for committing tax offenses" as equivalent.

In this case, there are two functions:

legal, with two aspects - punitive and remedial;
social, which is expressed in the general and particular prevention of fiscal violations, i.e., in encouraging persons involved in the relevant relations to adhere to the rules provided for by the relevant norms.

Its features are the following:

state coercion, as a basis and a specific form of implementation in the form of sanctions defined in financial and legal norms;
offensive after the commission of an act, with signs of a fiscal offense (illegality - a violation of current tax legislation; reality - threatens only for actual acts, i.e. actions for non-compliance with prohibitions or inaction for dereliction of duty; harmfulness - the state loses income; guilt - committing intentionally or through negligence, punishability - a fine is imposed for their commission);
applies to organizations, individuals and individual entrepreneurs;
the offender is waiting for certain material losses;
is embodied procedurally (in the prescribed manner).

Grounds for tax liability

According to paragraph 3 Art. 108 NK, the basis for bringing a person for violation of fiscal legislation is the actual proof of the commission of this violation by the decision of the tax authorities that has entered into force.

Thus, there are three reasons:

normative - a description of a specific violation in the law (say, Art. 129.11 NK ", part 1 of which states that failure to provide documentation by the taxpayer within the prescribed period is punishable by a fine of 100,000 rubles;
actual - means the reality of the violation committed;
procedural - the relevant act of the Federal Tax Service or the court, which has entered into force.

Types of liability for violation of tax laws

Violators of the law are subject to the following types of sanctions:

tax - a measure of tax liability is the collection of solid or percentage (of a specific amount) fines (chapter 16, 18 of the Tax Code). In other words, the measure of responsibility for committing a tax offense is the appropriate sanction, which is established and applied as a monetary penalty, prescribed in the articles of these chapters. The amount of fines varies from 200 rubles. up to half a million, and percentage - from 0.2 to 100%. It is also possible to enforce the collection of arrears on mandatory payments under Art. 46-48 of the Tax Code: with organizations - no doubt, with individuals - through the court or appear as interim measures ( ch. 11 NK) (property pledge, surety, penalty interest, suspension of operations on bank accounts, seizure of property, bank guarantee). About the age at which tax liability begins, says paragraph 2 Art. 107 NK is 16 years old. The statute of limitations, when it can be brought to it, is three years (from the moment the violation was committed). Other nuances associated with this time period are spelled out in Art. 113 NK. The issue of the statute of limitations on the collection of fines regulates Art. 115 NK;
disciplinary ( Art. 192 TK) by order of the employer are possible, say, for accountants who did not submit the necessary reports on time;
administrative liability for violation of tax legislation is settled ch. 15 Code of Administrative Offenses;
criminal (art. - 199.2 of the Criminal Code of the Russian Federation).

The procedure for bringing to tax liability

The designated mode consists of four stages:

Identification by officials of regulatory bodies (within their competence, through appropriate audits, obtaining explanations from taxpayers, fiscal agents and payers of fees, insurance premiums, checking accounting data and reporting, examining premises and territories used to generate income, as well as in other forms, provided for by the Tax Code) facts of violation of tax legislation.
Consideration of the materials of the case and making a decision. The detection of relevant violations due to inspections (desk or field) means that the specified procedure will be regulated by Art. 101 NK. It is also used when it comes to violations of Art. , And 123 NK. Identification of the relevant acts by other measures of fiscal control (by calling the taxpayer with a written notification to give explanations on the payment of mandatory payments, inspection, inventory of his property, outside of fiscal audits) indicates the regulation of the procedure under consideration already after Art. 101.4 NK.
Appeal against decisions of the Federal Tax Service. In this case, it is necessary to use separate provisions of Ch. , 20 NK, namely Art. 137, in part, on the right and mode of appeal - Art. - the procedure and deadline for filing a complaint, 139.2 - its form and content, 139.3 - cases of leaving without consideration, - consideration of the complaint.
Execution of decisions of the tax authorities ( Art. 101.3 NK).

Exemption from tax liability

By Art. 109 NK, the violator is not held liable when at least one of the following factors is present:

there is no event of a proper offense;
the person is innocent of committing it;
the offender is under 16 years of age;
passed the statute of limitations Art. 113 NK).

Also, it will not involve a violator who has broken the law in an attempt to acquire, use, dispose of property and (or) inspected foreign enterprises plus accounts (deposits) noted in a separate declaration and (or) its annexes and (or) information that is presented according to Art. 3 FZ dated 06/08/2015 No. 140. To avoid sanctions in this situation, the provision of a copy of such a special declaration and its annexes or data with a mark of acceptance by the tax authorities will help.

Circumstances excluding the fault of the violator for a fiscal violation, according to Art. 111 NK, are:

natural disaster, other emergency (insurmountable) conditions that do not need to be specially proved, since they are established through well-known facts, publications in the media, in another way;
illness of a person, which does not allow him to control his actions, is confirmed by documents related to the billing period in which the violation took place;
execution by the violator of any written explanations from the competent state body (the indicated circumstances are established by the relevant document of this body, which relates to the settlement periods when the offense occurred, regardless of the date of its publication). Those who cannot properly confirm the indicated circumstances should not wait for release;
other circumstances excluding guilt, which are recognized by the court or tax authorities when considering the case.

Softening and aggravation

Liability for tax violations is mitigated or aggravated due to the presence of the circumstances listed in Art. 112 NK. Soften it:

a combination of difficult family or individual circumstances;
threats or coercion, as well as official, financial or other dependence;
difficult financial situation - for an individual;
other circumstances that are recognized as such in a particular situation.

Aggravates liability for recidivism.

Updated 03/13/2020

2018-09-11T15:42:16+03:00

Tax offenses and liability for their commission are established in the Tax Code of the Russian Federation. The concept of a tax offense and the procedure for applying tax sanctions.

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tax offense According to Article 106 of the Tax Code of the Russian Federation, this is an unlawful (in violation of the legislation on taxes and fees) act (action or inaction) of a taxpayer, for which liability is established by the Tax Code of the Russian Federation. What are the tax offenses and liability for their commission?

Both organizations and individuals can be held liable in cases provided for in Chapter 16 of the Tax Code. The latter can be prosecuted sixteen years of age. Art. 108 of the Tax Code of the Russian Federation reveals the general conditions for bringing to responsibility for committing a tax offense:

no one can be held liable for committing a tax offense otherwise than on the grounds and in the manner provided for by the Tax Code of the Russian Federation;
liability for a tax offense committed by an individual occurs if this act does not contain elements of a crime under the Criminal Code of the Russian Federation;

The Tax Code of the Russian Federation distinguishes between the degree of guilt of taxpayers for committing tax offenses. Thus, an illegal act can be committed intentionally or by negligence. A tax offense is recognized as committed intentionally if the person who committed it was aware of the unlawful nature of his actions (inaction), wished or consciously allowed the harmful consequences of such actions (inaction) to occur. A tax offense is recognized as committed through negligence if the person who committed it was not aware of the unlawful nature of his actions (omissions) or the harmful nature of the consequences arising from these actions (omissions), although he should and could be aware of this.

According to Art. 114 of the Tax Code of the Russian Federation, a tax sanction is a measure of responsibility for committing a tax offense. Tax sanctions are established in the form of monetary penalties (fines) by Chapter 16 of the Tax Code of the Russian Federation.

If the taxpayer has committed two or more tax offenses, then tax sanctions are levied for each offense.

Types of tax offenses

Types of tax offenses that prove an intentional guilty act or such as committed through negligence:

Failure to comply with the registration deadline.
Evasion of registration in the territorial INS.
Failure to meet deadlines for filing information about opening and closing a bank account.
Failure to submit mandatory declarations.
Violation by the object of accounting of the income and expenditure part of the conduct of activities.
Complete non-payment of taxes or partial (underestimated).
Failure to comply with the rules for tax deductions.
Refusal to testify during the inspection or false testimony to the employees of the control service.
Failure to provide the necessary information at the request of the inspector.
Unauthorized access, use or disposal of seized property.
Fixation of non-fulfillment of the procedure for opening a gambling business object.

Important

A tax audit (desk or field audit) may cover a period not exceeding three previous years of activity. During one calendar year in a similar direction, a repeated (second) check is not allowed. An exception is the case of liquidation or reorganization of a taxpayer.

The concept of a tax offense and the procedure for applying tax sanctions

For the first time in Russian tax practice, the Tax Code of the Russian Federation gives a clear definition of the concepts of "tax offense" and "tax sanction".

A tax offense is a culpably committed illegal (in violation of tax legislation) action (inaction) of a taxpayer, for which the Tax Code of the Russian Federation establishes appropriate liability measures.

Tax sanctions are applied to taxpayers whose guilt in committing a tax offense is proven. A tax sanction is a measure of responsibility for committing a tax offense. It is established and applied in the form of monetary penalties (fines) in the amounts established by the Tax Code of the Russian Federation.

At the same time, it is important to emphasize that the Tax Code of the Russian Federation stipulates the fundamental principles for bringing a taxpayer to tax liability. The main ones are the following:

- any taxpayer can be held liable for committing a tax offense only on the grounds and in the manner provided for by the Tax Code of the Russian Federation;

- measures of tax liability cannot be repeatedly applied to a taxpayer for committing the same violation of tax legislation;

- holding a taxpayer - a legal entity liable for committing a tax violation cannot release its officials from administrative, criminal or other liability;

– bringing a taxpayer to responsibility for violation of tax legislation does not relieve him of the obligation to pay the due amounts of taxes;

- the basis for holding a person liable for a tax offense is the establishment of the fact of this violation by a decision of a tax authority that has entered into legal force;

- the taxpayer is not required to prove his innocence in committing a tax offense (such an obligation is assigned to the tax authorities);

- all doubts about the guilt of the taxpayer in committing a tax offense should always be interpreted in his favor.

1. The guilt of the taxpayer excludes actions committed by an official as a result of a natural disaster or other extraordinary and insurmountable circumstances.

2. The taxpayer shall not be liable for violations of the tax legislation in the event that he was guided by written explanations of financial or other authorized state bodies and their officials. When these written explanations were based on incomplete or inaccurate information provided by the taxpayer, this provision does not apply.

3. Guilt is excluded from actions containing signs of a tax offense committed by a taxpayer - an individual who was at that moment in a state in which this person could not be aware of his actions or manage them due to a diseased state.

In addition to these three provisions, a court or a tax authority, in the course of considering relevant cases, may also recognize other circumstances that exclude the taxpayer's guilt in committing a tax offense.

The application of one or another amount of financial sanctions for violation of tax legislation depends on circumstances mitigating or, conversely, aggravating responsibility for committing a tax offense.

A circumstance mitigating liability for violation of a tax offense is, in particular, committed as a result of a combination of difficult personal or family circumstances; under the influence of threat, coercion or due to material, official or other dependence; difficult financial situation of an individual. These circumstances are established by the court. At the same time, the court may recognize other circumstances not named in the Tax Code of the Russian Federation as mitigating. In the presence of at least one circumstance mitigating liability, the amount of the financial fine is reduced by at least two times compared to the amount established by the Civil Code of the Russian Federation.

An aggravating circumstance is the commission of a tax offense by a person who has previously been held liable for a similar offense. In the presence of aggravating circumstances, the amount of the fine is doubled. If the taxpayer has committed at least two tax offenses, then tax sanctions are applied to him for each such offense separately.

Types of tax offenses and liability for their commission

INid of the tax offense	Responsibility
Art. 122. Non-payment or incomplete payment of tax (fee) amounts (as a result of an underestimation of the tax base, other incorrect calculation of the tax (fee) or other illegal actions (inaction)) (see the text in the previous edition)	a fine of 20% of the unpaid tax (fee). the same acts committed intentionally - a fine of 40% of the unpaid amount of the tax (fee)
Art. 125. Failure to comply with the procedure for possession, use and (or) disposal of property, which is seized	(see text in previous edition) collection of a fine in the amount of 10,000 rubles
Art. 128. Responsibility of a witness (non-appearance or evasion from appearance without good reason of a person called in a case of a tax offense as a witness; unlawful refusal of a witness to testify, as well as giving knowingly false testimony)	collection of a fine in the amount of 3,000 rubles
Art. 116. Violation of the deadline for registration with the tax authority (for an individual entrepreneur)	a fine of 5,000 rubles violation of the registration deadline for more than 90 days - a fine of 10,000 rubles
Art. 117. Evasion of registration with the tax authority (conducting activities by an individual entrepreneur without registration with the tax authority)	a fine in the amount of 10% of the income received during the specified time as a result of such activities, but not less than 20,000 rubles conducting activities without registration for more than 90 calendar days (see the text in the previous edition) a fine in the amount of 20% of income received during the period of activity without registration for more than 90 calendar days, but not less than 40,000 rubles
Art. 119. Failure to file a tax return (for taxpayers required to file returns)	in the absence of signs of a tax offense - (see the text in the previous edition) a fine in the amount of 5% of the amount of tax payable (surcharge) on the basis of this declaration, for each full or incomplete month from the date set for its submission, but not more than 30% of the specified amount and not less than 100 rubles non-submission by a taxpayer of a tax return to the tax authority for more than 180 days after the expiration of the deadline established by tax legislation for the submission of such a return - (see the text in the previous wording) a penalty of 30% of the amount of tax payable on the basis of this declaration, and 10% of the amount of tax payable on the basis of this declaration, for each full or partial month starting from the 181st day (see the text in the previous edition)

Characteristics of tax offenses

This definition contains the following set of the most important legal features of a tax offense.

Wrongfulness of the act

Guilt

Punishability of the act

Violation of the rules for preparing a tax return

Instructions for filling in tax returns for federal, regional and local taxes are issued by the Ministry of the Russian Federation for Taxes and Duties in agreement with the Ministry of Finance of Russia, unless otherwise provided by the legislation on taxes and fees.

In case of violation of the rules by a legal entity, liability arises in accordance with paragraph 4 of article 120 of the Tax Code of the Russian Federation.

Violation must be expressed in untimely or incorrect reflection in the declaration of income and expenses of the taxpayer, sources of income, the calculated amount of tax and (or) other data related to the calculation and payment of tax. According to this rule, liability comes in the form of a fine in the amount of three thousand rubles.

In the event of a violation by an individual, liability arises in accordance with Article 121 of the Tax Code of the Russian Federation.

If an individual is obliged to file a declaration, he must first of all collect all documents confirming the income received and the expenses incurred related to their receipt, the right to a reduction total income and eligibility for income tax relief. It should be borne in mind that when declaring, not any expenses are taken into account and accepted by the tax authorities, but only those that are provided for by the legislation on income taxation.

The subject of violations of the rules for drawing up a tax return is an individual who is obliged to submit a tax return.

The form of guilt can be both intentional and reckless.

Signs of a violation of the rules for compiling a tax return are failure to reflect or incomplete reflection of income (expenses), as well as errors that lead to an underestimation of the amount of taxes payable.

The above acts entail the collection of a fine in the amount of five thousand rubles.

Administrative liability for tax offenses

An administrative offense is an unlawful, guilty action (inaction) of an individual or legal entity, for which the Code of Administrative Offenses of the Russian Federation establishes administrative responsibility, while individual entrepreneurs are equated with officials.

A person is presumed innocent until his guilt is proven and established by the body that has considered the case. Irremovable doubts about the guilt of a person shall be interpreted in favor of this person.

Circumstances mitigating administrative responsibility are recognized: repentance; voluntary reporting by a person of an offense committed by him; prevention by the person who committed the offense of its harmful consequences, voluntary compensation for the damage caused or elimination of the damage caused; commission of an offense in a state of strong emotional excitement (affect) or in the event of a combination of difficult personal or family circumstances; commission of an offense by a minor or by a pregnant woman or a woman with a small child.

The body considering the case of an administrative offense may recognize other circumstances as mitigating. Under these circumstances, you can apply minimum size fine.

Circumstances aggravating administrative responsibility are recognized as follows: continuation of unlawful behavior, despite the requirement of authorized persons to stop it; repeated commission of a homogeneous offense within a year; involvement of a minor in the commission of an offense; commission of an offense by a group of persons; committing an offense in a natural disaster or other emergency circumstances, in a state of intoxication. Under these circumstances, a maximum fine may be applied.

It is also possible to simultaneously hold the organization and the official of the organization liable if the article of the Code of Administrative Offenses provides for both the official and the legal entity as a subject.

Responsibility for administrative offenses in the field of taxation is established by articles 15.3 - 15.9 and 15.11 of the Code of Administrative Offenses.

table 2

Administrative responsibility

№	Type of offense	Base	Who is responsible	Fine
1	Violation of the deadline for registration with the tax authority	Art. 15.3 Code of Administrative Offenses of the Russian Federation		500 - 1000 rubles.
2	Violation of the deadline for registration with the tax authority, associated with the conduct of activities without registration with the tax authority	Art. 15.3 Code of Administrative Offenses of the Russian Federation	Officials, except for individual entrepreneurs	2000 - 3000 rubles.
3	Violation of the deadline for submitting to the tax authority or the authority of the state off-budget fund information on opening or closing an account with a bank or other credit organization	Art. 15.4 of the Code of Administrative Offenses of the Russian Federation	Officials, except for individual entrepreneurs	1000 - 2000 rubles.
4	Violation of the deadlines for submitting a declaration to the tax authority	Art. 15.4 of the Code of Administrative Offenses of the Russian Federation	Officials, except for individual entrepreneurs	300 - 500 rubles.
5	Failure to submit on time or refusal to submit to the tax authorities, customs authorities and authorities of the state off-budget fund of documents or other information necessary for the implementation of tax control. Or the presentation of such information in an incomplete or distorted form	Part 1 Art. 15.6 of the Code of Administrative Offenses of the Russian Federation	citizens	100 - 300 rubles.
6	Same	Part 1 Art. 15.6 of the Code of Administrative Offenses of the Russian Federation	Officials, except for individual entrepreneurs	300 - 500 rubles.
7	Gross violation of the rules of accounting and reporting	Art. 15.11 Administrative Code of the Russian Federation	Officials, except for individual entrepreneurs	2000 - 3000 rubles.

An administrative case is considered initiated from the moment the protocol is drawn up. The Code of Administrative Offenses provides for both open and closed consideration of cases. The person in respect of whom proceedings are being conducted on the case of an administrative offense shall have the right: to get acquainted with all the materials of the case; give explanations; present evidence; make motions and challenges; use the legal assistance of a lawyer; enjoy the right to protection of rights and legitimate interests by legal representatives; participate in the proceedings.

A protocol on offenses in the field of taxes has the right to draw up: judges; officials of internal affairs bodies, tax and customs authorities. The protocol shall indicate the date and place of its compilation, position, surname and initials of the person who drew up the protocol, information about the person against whom the case has been initiated, surnames, first names, patronymics, addresses of the place of residence of witnesses, if any, place, time of commission and event offenses, an article of the Code of Administrative Offenses providing for liability, an explanation of the person against whom the case has been initiated. In addition, the protocol must indicate that the person against whom the case has been initiated has been explained their rights and obligations.

The protocol is signed by the official who drew it up, the person against whom the case has been initiated. These persons have the right to refuse to sign the protocol, about which an appropriate entry must be made in it. A copy of the protocol, at the request of the person against whom the case has been initiated, may be handed over against receipt. The person against whom the case has been initiated has the right: to get acquainted with the protocol; provide explanations and comments to be attached to the protocol.

The protocol is drawn up immediately after the discovery of the offense. If additional clarification of the circumstances of the case or data on the person against whom the case is initiated is required, then the protocol is drawn up within two days from the moment the offense was discovered.

Criminal liability

№	Type of crime	Base	Who is responsible	Fine	Arrest	Deprivation of liberty	Deprivation of the right to a position or activity	Limitation period
1	Evasion of taxes from an individual by not submitting a tax return, or by including deliberately false information in a tax return, committed on a large scale	Part 1 Art. 198 of the Criminal Code of the Russian Federation			4 to 6 months	Up to 1 year	—	2 years
2	The same, done on a large scale	Part 2 Art. 198 of the Criminal Code of the Russian Federation	Individual entrepreneurs, lawyers, notaries, other individuals	from 200,000 to 500,000 rubles. or income for a period of 18 months to 3 years	—	Up to 3 years	—	6 years
3	Evasion of taxes from the organization by failure to submit a tax return or other documents, or by including deliberately false information in a tax return or such documents, committed on a large scale	Part 1 Art. 199 of the Criminal Code of the Russian Federation		from 100,000 to 300,000 rubles. or income for a period of 1 to 2 years	4 to 6 months	Up to 2 years	Up to 3 years	2 years
4	The same, committed by a group of persons by prior agreement on an especially large scale	Part 2 Art. 199 of the Criminal Code of the Russian Federation	Gene. director, chief accountant, and other responsible persons	from 200,000 to 500,000 rubles. or income for a period of 1 to 3 years	—	Up to 6 years	Up to 3 years	10 years
5	Failure to fulfill the duties of a tax agent in personal interests, committed on a large scale (Large amount is determined by Article 199 of the Criminal Code of the Russian Federation, footnote 4)	Part 1 Art. 199.1 of the Criminal Code of the Russian Federation		from 100,000 to 300,000 rubles. or income for a period of 1 to 2 years	4 to 6 months	Up to 2 years	Up to 3 years	2 years
6	The same, committed on an especially large scale (Especially large amount is defined by Article 199 of the Criminal Code of the Russian Federation, footnote 5)	Part 2 Art. 199.1 of the Criminal Code of the Russian Federation	IP, gen. director, chief accountant, and other responsible persons	from 200,000 to 500,000 rubles. or income for a period of 2 to 5 years	—	Up to 6 years	Up to 3 years	10 years
7	Concealment of funds or property of an organization or individual entrepreneur, at the expense of which taxes should be collected	Art. 199.2 of the Criminal Code of the Russian Federation	The founders of the organization, Gen. director (manager) and other responsible persons	from 200,000 to 500,000 rubles, or income for a period of 18 months to 3 years	—	Up to 5 years	Up to 3 years	6 years

Thus, from January 1, 2010, the Criminal Code of the Russian Federation has been in effect in a new, more acceptable version for taxpayers. Federal Law No. 383-FZ of December 29, 2009 provides that a person who has committed a crime for the first time is exempted from criminal liability if he has fully paid the amounts of arrears, penalties and fines (Articles 198, 199, 199.1 of the Criminal Code of the Russian Federation). This amendment applies to persons who are under investigation or who are serving sentences.

Since January 1, 2010, the amount of arrears has been significantly increased, which can lead to criminal liability (Articles 198, 199 of the Criminal Code of the Russian Federation). For legal entities - three times, for individuals - six times (Table 3).

Article 116. Violation of the deadline for registration with a tax authority

1. Violation by a taxpayer of the deadline established by Article 83 of this Code for filing an application for registration with a tax authority in the absence of signs of a tax offense provided for in paragraph 2 of this Article,

2. Violation by a taxpayer of the deadline established by Article 83 of this Code for filing an application for registration with a tax authority for a period of more than 90 days

Article 117. Evasion from registration with a tax authority

1. Conducting activities by an organization or individual entrepreneur without registration with a tax authority

entails the collection of a fine in the amount of ten percent of the income received during the specified time as a result of such activity, but not less than twenty thousand roubles.

2. Conducting activities by an organization or individual entrepreneur without registration with a tax authority for more than three months

entails a fine in the amount of 20 percent of the income received during the period of activity without registration for more than 90 days.

Article 118

1. Violation by the taxpayer of the deadline established by this Code for submitting to the tax authority information on the opening or closing of an account by him in any bank

entails the recovery of a fine in the amount of five thousand roubles.

2. Excluded

Article 119. Failure to submit a tax return

1. Failure by a taxpayer to submit a tax declaration to the tax authority at the place of registration within the period established by the legislation on taxes and fees, in the absence of signs of a tax offense provided for in paragraph 2 of this article,

entails the collection of a fine in the amount of 5 percent of the amount of tax payable (surcharge) on the basis of this declaration for each full or incomplete month from the day set for its submission, but not more than 30 percent of the specified amount and not less than 100 rubles.

2. Failure by a taxpayer to submit a tax return to the tax authority within more than 180 days after the expiration of the deadline for submitting such a return established by tax legislation

attracts a penalty in the amount of 30 percent of the amount of tax payable on the basis of this declaration, and 10 percent of the amount of tax payable on the basis of this declaration, for each full or incomplete month starting from the 181st day.

3. Excluded

Article 120

1. A gross violation by an organization of the rules for accounting for income and (or) expenses and (or) objects of taxation, if these acts were committed within one tax period, in the absence of signs of a tax offense provided for in paragraph 2 of this article,

entails the recovery of a fine in the amount of five thousand roubles.

2. The same acts, if committed during more than one tax period,

entail the recovery of a fine in the amount of fifteen thousand roubles.

3. The same acts, if they led to an underestimation of the tax base,

entail the collection of a fine in the amount of ten percent of the amount of the unpaid tax, but not less than fifteen thousand roubles.

A gross violation of the rules for accounting for income and expenses and objects of taxation for the purposes of this article means the absence of primary documents, or the absence of invoices, or accounting registers, systematic (twice or more during a calendar year) untimely or incorrect reflection on accounting accounts and in the reporting of business transactions, cash, material values, intangible assets and financial investments of the taxpayer.

4. Eliminated

Article 121 Excluded.

Article 122. Non-payment or incomplete payment of tax amounts

1. Non-payment or incomplete payment of tax amounts as a result of understatement of the tax base, other incorrect calculation of tax or other illegal actions (inaction)

entail the collection of a fine in the amount of 20 percent of the unpaid amounts of tax.

3. The acts provided for by paragraph 1 of this article, committed intentionally,

entail the collection of a fine in the amount of 40 percent of the unpaid amounts of tax.

Article 123

Illegal non-transfer (incomplete transfer) of tax amounts subject to withholding and transfer by a tax agent,

entails the collection of a fine in the amount of 20 percent of the amount to be transferred.

Article 125

Failure to comply with the procedure established by this Code for the possession, use and (or) disposal of property that has been seized,

entails the collection of a fine in the amount of 10 thousand rubles.

Article 126

1. Failure to submit documents and (or) other information provided for by this Code and other acts of legislation on taxes and fees to the tax authorities within the prescribed period,

entails the collection of a fine in the amount of 50 rubles for each non-submitted document.

2. Failure to provide the tax authority with information about the taxpayer, expressed in the refusal of the organization to provide the documents it has, provided for by this Code, with information about the taxpayer at the request of the tax authority, as well as other evasion from providing such documents or providing documents with knowingly false information, if such the act does not contain signs of a violation of the legislation on taxes and fees, provided for in Article 135.1 of this Code,

entails the recovery of a fine in the amount of five thousand roubles.

Article 127 Excluded.

Article 128. Responsibility of a witness

Non-appearance or evasion from appearance without good reason of a person called in a case of a tax offense as a witness,

entail the collection of a fine in the amount of one thousand roubles.

Unlawful refusal of a witness to testify, as well as giving knowingly false testimony

entail a fine in the amount of three thousand roubles.

Article 129

1. Refusal of an expert, translator or specialist to participate in a tax audit

entails the collection of a fine in the amount of 500 rubles.

2. Giving by an expert a knowingly false conclusion or making a knowingly false translation by an interpreter

entails the collection of a fine in the amount of one thousand roubles.

Article 129.1. Illegal failure to report information to the tax authority

1. Unlawful failure to report (untimely communication) by a person of information that, in accordance with this Code, this person must report to a tax authority, in the absence of signs of a tax offense provided for in Article 126 of this Code,

entails the collection of a fine in the amount of 1000 rubles.

2. The same acts committed repeatedly during a calendar year,

entail a fine in the amount of 5000 rubles.

Responsibility in the tax area- a complex institution that combines the norms of various branches of law aimed at protecting tax legal relations. Therefore, liability is regulated by various branches of law:

the Tax Code of the Russian Federation in the presence of signs of tax offenses;

Code of the Russian Federation on Administrative Offenses (CAO);

Criminal legislation of the Russian Federation in the presence of signs of a crime.

Tax Liability- application by authorized bodies to taxpayers and persons facilitating the payment of taxes, tax sanctions for committing a tax offense. A tax sanction is a measure of responsibility for committing an offense.

Organizations and individuals who have reached the age of sixteen are legally liable for committing tax offenses.

The subjects of tax liability are taxpayers (organizations and individuals), tax agents (legal entities and individual entrepreneurs), collectors of taxes and fees.

The legislation recognizes two circumstances that exclude the guilt of a legal entity in relation to a tax offense:

Its commission due to a natural disaster or insurmountable circumstances;

Execution by the taxpayer (tax agent) of written explanations on the application of legislation on taxes and fees given to the tax authorities.

When applying tax liability, the legislation takes into account the signs of repetition and intent; there are circumstances mitigating and aggravating liability for committing a tax offense.

The statute of limitations for bringing to responsibility for committing a tax offense is three years. For tax authorities, the statute of limitations for collecting sanctions is set no later than three months from the date of discovery of a tax offense and the drawing up of an appropriate act.

depending from the object to which illegal actions are directed, The following groups of violations are distinguished:

1) concealment or underestimation of objects of taxation;

2) violation of the established procedure for accounting for objects of taxation;

3) violation of the procedure for submitting documents to the tax authority;

4) violation of the tax payment procedure;

5) other violations.

In accordance with the Code, organizations have the following responsibilities:

fines- for committing tax offences. The fine can be paid voluntarily, otherwise it can be collected from the taxpayer by force only by a court decision that has entered into legal force. (In 2006, a fine not exceeding 5,000 rubles for individual entrepreneurs, and 50,000 rubles for organizations, the tax authorities can recover in out of court. With regard to individuals who are not individual entrepreneurs, the judicial procedure for collecting mandatory payments and sanctions remains);

penalties- for untimely transfer of taxes and fees. Unlike fines, penalties can be collected from the taxpayer (tax agent) forcibly in an indisputable manner. Penalties are charged for each calendar day of the installment payment of tax in the amount of 1/300 of the current CBRF refinancing rate.