Article 199 of the Criminal Code. Avoiding taxes and fees from the organization

As a tax agent, under the current domestic legislation, a person who is charged with charging, withholding from the payer and transferring payments to the budget is acting. He must calculate the amount that must be paid when performing a certain operation. The agent must keep the calculated value. This amount is excluded from the funds owed to any persons and is sent to the budget.

Duties of tax agents

These persons carry out the calculation, retention and transfer of mandatory payments, regardless of whether they themselves are payers. In addition, agents are required to:

• To send written notification to the tax inspectorate of the impossibility of withholding;
• Keep records of calculated and paid income, calculated, withheld and sent to the budget amounts for each taxpayer separately;
• To provide documents to the supervisory authority that are necessary to control the calculation, withholding and sending of amounts to the budget;
• Keep the documentation for 4 years.

These duties are established by Article 24 of the Tax Code. Regardless of the taxation system used, the organization can perform agent functions by:

1. VAT.
2. Personal Income Tax.
3. Profits tax.

Hold

Regardless of the form of income payment (natural or monetary), the agent must calculate the amount of tax. However, it is retained only from the funds paid to the counterparty. This rule is set in the sub. 1 of point 3 of the above-mentioned article. Not later than one month after the tax agent learned of the impossibility of withholding, he must send a written notice to the tax authority. This can be a statement made in an arbitrary form. The moment, from which the countdown of the month begins, is determined in a particular situation individually. For example, as it may be the issue of prizes to citizens in kind.

A responsibility

It is established for violation of obligations imputed to tax agents, and is provided for in art. 199 of the Criminal Code. Crimes in the sphere of economic activity today are one of the urgent problems of the state. As you know, deductions of enterprises and citizens form the revenue side of the budget. Non-fulfillment of obligations of payers or agents causes significant damage to the financial condition of the country.

Art. 199 of the Criminal Code: the nature of the crime

Normally, a penalty is imposed for failure to fulfill in one's own interests the duties of the agent for calculating, withholding and transferring payments that are subject to calculation and redirection to the budget or extra-budgetary type fund, failure to submit the accounting documentation, on a large scale. The sanctions for this act are as follows:

• A fine in the amount of 100-300 thousand rubles. Or income (salary) for 1-2 years;
• Arrest up to 6 months;
• Up to 2 years of forced labor;
• Up to two years of imprisonment.

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

Qualifying signs

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

• By prior agreement by a group of persons;
• In especially large amounts.

In this case, the agent is punished:

• A fine of 200-500 thousand rubles. Or in the amount of income (salary) for 2-5 years;
• Imprisonment up to 6 years;
• Forced labor up to 5 years.

In the last two cases, an additional prohibition may be imposed on holding certain posts or carrying out specific activities for a period of up to 3 years.

Art. 199 of the Criminal Code with comments

In general, these signs of misconduct coincide with those established in another norm - 198. But, unlike Art. 199 of the Criminal Code of the Russian Federation, evasion from payment of taxes and (or) charges from the organization assumes another subject of an illegal act. In addition, there is a difference in the amounts by which a large or particularly large amount is formed. In Art. 199 of the Criminal Code establishes large in comparison with the previous norm of magnitude.

Explained the Plenum of the Sun

They are given regarding the subjects who are prosecuted under Art. 199 of the Criminal Code. Judicial practice is guided by the provisions of the norm 11 of the Tax Code. In accordance with this, agents should be classified as legal entities established in accordance with domestic law, foreign companies and other corporate associations with civil legal capacity, or formed in the manner prescribed by the legal system of foreign states, international entities, their representative offices / branches located on the Territory of Russia.

The objective part

It is characterized by the characteristics specified in norm 198. Legislation establishes a list of mandatory documents for submission to the supervisory authority. Among them, in particular, there is a report on losses and profits or purposeful use of funds, balance sheet, etc. Enterprises (other than public and budgetary associations, as well as their structural units that do not carry out commercial activities and have no turnover in the sale of material values, Except for the retired property) are obliged to provide quarterly (within a month after its completion) and annual (no later than 90 days after its completion) reporting, unless otherwise provided for in the law.

FZ No. 402

The accounting reporting of the enterprise can be given to the interested person directly or to be transferred through the representative of the company, sent by mail with the list of investments or by telecommunication channels. The user of the documentation has no right to refuse to accept it and must, at the request of the performer, put a mark on the copy indicating the date of receipt. In case of receiving reports on telecommunication channels, the entity is obliged to transfer to the enterprise a receipt for its receipt in electronic form. The date of submission of the documentation is considered to be the date of dispatch or actual transfer.

Construction of the act

The crime is formal. The termination of the act is connected with the performance of actions, which are given in the dispositions. The intent of the guilty subject is to realize that he is evading payment of tax or insurance premiums on a large scale. This amount is recognized as an amount of 2 million rubles. For three years in a row, provided that the share of the compulsory mandatory payments exceeds 10% of all deductions to the budget, or more than 6 million rubles.

The subjective part

Guilty can be a sane individual, whose functional duties provide for mandatory budgetary allocations from the enterprise. Other entities can not be held accountable under Art. 199 of the Criminal Code. The practice of dealing with cases indicates that the executors of the paying company are the accused, the accountant (chief among them) whose duties include the signing of reports submitted to the supervisory authorities, ensuring timely and full deductions to the budget. Other physical persons may be liable for liability, if they have received special powers for such actions by the managing body of the enterprise. In the circle of subjects of Art. 199 of the Criminal Code also includes citizens who in fact replace as accountant or manager. If the said persons have previously agreed to commit an unlawful act aimed at non-submission of reports or the inclusion of knowingly false data into it, their behavior is qualified in accordance with clause "A", part 2 of the said article.

Classification of subjects

Other employees of the payer company, whose duties, for example, include the preparation of primary accounting records, may, if there are grounds, be held responsible for the relevant part of the rule in question as accomplices who intentionally assisted in the commission of an unlawful act. A person who organized or inclined a manager, an accountant or another employee of the company, and also facilitated the commission of an act by instructions, advice and so on, may be punished as an organizer, an accomplice or instigator. In these cases, the provisions of Art. 33.

Extra large sizes

This qualifying feature, established in cl. "B" part 2 of Art. 199 of the Criminal Code of the Russian Federation, acquires an appropriate value only when the amount of sums not deducted to the budget exceeds 2.5 million rubles. The calculation in this case is carried out within 3 fiscal years, running in a row. At the same time, the condition should be observed that the share of unpaid taxes / fees is more than 20% of the total amount to be transferred to the budget. If this percentage is not met, then the size exceeding 30 million rubles is recognized as particularly large.

Conclusion

The category of economic crimes, according to a number of lawyers, is fully justifiably included in the Criminal Code. The presence in the legislation of more severe liability allows to prevent violations of financial discipline and ensure the stability of budget revenues. At the same time, it should be noted that criminal liability occurs only in cases of large amounts of unpaid amounts. To establish its legislator determines the time limits, which are not less than 3 years, consecutive. From this it follows that criminal punishment arises when a systematic violation of financial discipline. In such cases, the guilty persons are directly guilty.