The amount of the penalty for late payment of VAT. Penalty for non-payment of taxes for individuals and individual entrepreneurs Tax fines are paid with VAT

02.08.2021

Penalty for non-payment or late payment VAT depends on who transfers the tax: the taxpayer or the tax agent. For non-payment of VAT, the taxpayer faces a fine of 20% of the amount owed. In some cases, the fine can be avoided. For example, if the tax is calculated correctly and reflected in the timely filed declaration. The taxpayer is not entitled to a penalty for late payment of taxes. The withholding agent will be fined both for the transfer of withheld tax later than the deadline, and for its non-payment or incomplete payment.

Penalty for non-payment of VAT by the taxpayer

The penalty for non-payment of VAT is 20% of the tax arrears. If it turns out that the tax was not paid intentionally, then the fine is 40% (clauses 1, 3 of article 122 of the Tax Code of the Russian Federation, clauses 5, 8, 22 of Appendix No. 18 to the Treaty on the EAEU).

A fine will be issued to you if VAT is not paid due to an understatement of the tax base, incorrect calculation of the amount of tax, or your other illegal actions (inaction) (clause 1, article 122 of the Tax Code of the Russian Federation).

The penalty for non-payment of VAT does not apply if:

you correctly calculated the amount of tax and indicated it in the declaration, but did not pay it to the budget (clause 19 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 N 57);
you have an overpayment of VAT for previous quarters, its amount is equal to or exceeds the arrears and this overpayment is not offset against your other debts (clause 20 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 N 57).

Despite the fine issued, you will also have to pay arrears and penalties (clause 5, article 108 of the Tax Code of the Russian Federation).

Responsibility for understatement of the tax base for VAT

Understatement of the tax base for VAT may entail such types of liability as gross violation of accounting rules (Article 120 of the Tax Code of the Russian Federation) or non-payment of tax (Article 122 of the Tax Code of the Russian Federation).

Penalty for gross violation of accounting rules income, expenses or objects of taxation - 20% of the amount of tax debt, but not less than 40,000 rubles. (Clause 3, Article 120 of the Tax Code of the Russian Federation).

A gross violation of the rules for accounting for income, expenses or objects of taxation includes the following situations (Article 120 of the Tax Code of the Russian Federation):

you late or incorrectly reflected business transactions in accounting and (or) tax accounting and reporting. Such errors are subject to a fine if you make them more than once during the calendar year;
you do not have primary documents, invoices, accounting registers or tax accounting.

Penalty fornon-payment of VAT due to underestimation of the tax base will be 20% of the amount of arrears or 40% if the tax is not paid intentionally (clauses 1, 3 of article 122 of the Tax Code of the Russian Federation).

For example, such an underestimation may be due to an arithmetic error.

When underestimating the tax base for VAT, it is impossible to simultaneously fine under Art. 120, and Art. 122 of the Tax Code of the Russian Federation (Clause 2, Article 108 of the Tax Code of the Russian Federation, Determination of the Constitutional Court of the Russian Federation of January 18, 2001 N 6-O).

Penalties are also charged on arrears (clause 1, article 75 of the Tax Code of the Russian Federation). It does not matter, according to Art. 120 or art. 122 of the Tax Code of the Russian Federation you are fined.

Is it possible to fine a taxpayer for late payment of VAT?

You cannot be fined for paying VAT later than the due date. This is not provided for in Art. 122 of the Tax Code of the Russian Federation.

However, you will have to pay penalties (clause 1, article 75 of the Tax Code of the Russian Federation).

Penalty for non-payment of VAT by a tax agent

The amount of the fine in case of non-payment of VAT by a tax agent is 20% of the amount of tax that is not transferred to the budget (Article 123 of the Tax Code of the Russian Federation).

Such a fine threatens you if you (Article 123 of the Tax Code of the Russian Federation):

they did not withhold the tax and, as a result, did not transfer it to the budget;
withheld tax, but did not transfer it to the budget;
withheld the tax, but transferred not all of its amount.

You will not be fined if you did not have the opportunity to withhold VAT (paragraph 21 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 N 57).

Penalty for late transfer of VAT by a tax agent

The amount of the fine for late transfer of VAT by a tax agent is 20% of the amount of tax not transferred on time (Article 123 of the Tax Code of the Russian Federation).

In this case, a fine will be issued to you regardless of how much you delayed the VAT transfer: for one day or for a year (Letters of the Ministry of Finance of Russia dated 08.11. 59771).

Also, in case of untimely transfer of VAT, the tax agent charges penalties (clauses 1, 7, article 75 of the Tax Code of the Russian Federation).

We touched on the topic of subsidiary liability for tax violations, but what if the problem takes a very bad turn and goes into the criminal law plane? Who is responsible for the tax composition? When will you answer Chief Accountant? I will answer all these questions, plus there will be several practical advice how not to become extreme.

Statistics

First, about the scale of the problem. This will require some official statistics. The Judicial Department in its statistics does not single out tax crimes separately, including them in the block of crimes in the sphere of the economy (and this is already 54 corpus delicti and, attention (!), this does not include such a crime as fraud), in 2016 such criminal cases were received in courts of first instance (district) - 6100 pcs.

Convicted to various types of punishments in 5667 criminal cases, and our most humane court in the world delivered acquittals in 32 criminal cases. The conclusion is obvious - if the case went to court, it will be practically impossible to justify oneself. By the way, they admitted that it is useless to fight in court and hoping for a mitigation of punishment, the defendants in 3374 criminal cases agreed to a special judicial procedure (the defendant agrees with the accusation, the evidence is not considered by the court).

But what is the situation with sentences specifically for tax crimes? State automated system"Justice" indicates that for the whole of 2015 in the Russian Federation under Article 199 of the Criminal Code of the Russian Federation (Evasion of taxes and (or) fees from an organization) only 300 sentences were passed, in 2016 - 165. According to Art. 199.1 of the Criminal Code of the Russian Federation (Failure to fulfill the duties of a tax agent) in 2015 - 22, in 2016 - 15. According to Article 199.2 of the Criminal Code of the Russian Federation (Concealment Money or property of an organization or an individual entrepreneur, at the expense of which taxes and (or) fees should be collected) in 2015 - 98, in 2016 - 31.

The leader for 2015-2016 in terms of sentences handed down under Art. 199 of the Criminal Code of the Russian Federation turned out to be Krasnodar region(34), in second place is Stavropol (32), in Moscow - 8, and in St. Petersburg only 3. The statistics as a whole are not terrifying. Maybe there is no problem at all and it was invented by lawyers and tax optimization trainers to scare directors and accountants?

According to the official data of the Ministry of Internal Affairs, published on the agency's website, 9,041 tax crimes were detected in 2015, and 9,283 in 2016. In total, 18,324 tax crimes were detected in 2015-2016. But there were only 631 sentences during this period of time! But somewhere in the bowels of the Ministry of Internal Affairs, statistics are also hidden on business inspections as part of the inspection material (KUSP) or operational-search measures (ORM), which have not even reached the initiation of a criminal case! Of course, we can’t get this statistics (this is nothing less than a state secret!), and it’s not really needed, but I’ll assume that in 2015-2016, there were at least two hundred thousand of all business inspections by the police only on tax structures.

It would be possible to end this part of the article with an optimistic statement - do not be afraid of police checks, anyway, the likelihood of initiating a criminal case is small, and it takes a lot of effort to bring this to a court verdict, but in all the statistics given there is not enough information about tax crimes that qualified as fraud , and this is a significant array of crimes related to the illegal optimization of VAT. It is very difficult to single out statistics on such “tax” frauds from all frauds in general, however, in the following parts of the article I will analyze this situation with specific examples, as well as give practical advice on how to avoid criminal liability for tax crimes to chief accountants and directors of organizations in our troubled times.

In the first part of the article, we touched on statistics and found out that the number of court decisions in criminal cases for tax crimes is 29 times less than the number of criminal cases initiated. What is the reason, do the economic police and the investigation really work so poorly that cases simply do not reach the court?

Without delving into the legal jungle, let me remind you that our Code of Criminal Procedure contains Article 28.1, which business owners, directors and chief accountants need to know. It is called "Cessation of criminal prosecution in cases of crimes in the field of economic activity". The meaning is simple: if before the appointment of a court session on a criminal case, the accused are fully compensated for the damage to the budget, the criminal prosecution is terminated. Full compensation involves not only the payment of arrears, but also penalties and fines, and the accused himself must commit such a crime for the first time. This is how a “legal” payoff is implemented, that is, even if you have already been pressed, the problem can be solved legally.

But what if the case goes to court? I studied dozens of court decisions on tax crimes for 2015-2016, learned the opinion of law enforcement officers and lawyers, and here are the conclusions that can be drawn:

1. Most tax cases have a high inertia: in the sentences passed in 2015-2016, the crimes were committed in 2010-2012. That is, sentences for tax crimes in 2017 will begin to appear in 2019 and (it’s scary to say) in 2023, which gives some business owners and directors reason to take optimization issues lightly, guided by the saying: “Man proposes, but God disposes.”

2. The verdicts of 2015-2016 for tax crimes, from the point of view of criminal law, are toothless, but this is not the humanity of Russian legal proceedings - the point is the amnesty, under which almost all the defendants fell. A new large-scale amnesty is expected by 2025, so for those who like to take risks, you can dream of suing no earlier than this year.

3. Criminal cases under Article 199 Part 1 (if they evaded from 5 to 15 million rubles for 3 consecutive years, while exceeding 25% of the amount of all taxes payable or in the amount of more than 15 million) are terminated in court for expiration of the term for bringing to criminal responsibility: if 2 years have passed from the date of the commission of the crime to the entry into force of the sentence. Given the complexity and volume of criminal cases, this often happens, so one of the defense tactics that works is to delay the investigation.

4. Many criminal cases under Article 199 Part 1 are committed by directors extremely stupidly or out of ignorance (which the truth does not exempt from liability) - for example, a common crime is the issuance of invoices with VAT by organizations using the simplified tax system, without subsequent payment of VAT to the budget. Therefore, I advise directors who consider bookkeeping to be exclusively a matter of bookkeeping, I advise you to change your mind.

5. Absolutely any punishment does not exempt from paying arrears, penalties and fines to the budget. Entrepreneurs tried to prove in courts that, being brought to criminal liability, they should not compensate for damage to the budget, since in this way they are held liable twice for the same violation, the case went to the Constitutional Court, but the court found that there is no double liability and will have to pay. And here the law No. 401-FZ works on liability with all personal property of the founders of the organization.

6. Tax crimes are almost always held accountable CEO, in rare cases, together with the chief accountant. Moreover, usually the chief accountant “not suspecting the criminal intent of the latter (director) and the discrepancy between the reality of the documents provided to him on relations with OOO N, reflected in the accounting a deal with ...”, etc. That is, for the chief accountant, the main thing is to prove the absence of intent to evade. In rare cases, the chief accountant is also involved, his participation in illegal optimization is proved both by testimonies (hello to subordinates, including accounting staff) and by wiretapping (“talker is a godsend for a spy”). Often, the cashiers themselves give testimony, indicating that they communicated with the chief accountants on the preparation of documents and the delivery of cash.

7. Evidence of director or accountant intent revolves around the hackneyed theme of lack of due diligence in selecting contractors. So don't be lazy to do your due diligence. This may not save you from tax liability, but from criminal liability - yes.

8. All the liberality of the legislation ends if the money not only did not go to the budget (this is the tax composition), but was illegally received from the budget (VAT refund) - this is Art. 159 of the Criminal Code (fraud), most sentences are passed to a group of persons, where not only the director and chief accountant, but often the founders are recognized as accomplices. It’s easy to get the chief accountant four or five years of real imprisonment for this, and here the arguments that pass with the tax structures (“I don’t know anything, it’s all the director, I carried out binding decisions”) no longer pass, and the case of compensation for damage does not stops. If you don't want to sit, don't.

9. The absolute primacy among taxes, whose optimization led to the initiation of a criminal case and the court, is VAT.

Colleagues, the amnesty is over, and the fiscal function of the state is being strengthened. Upgrading to a bench in a cage of some district court is not as difficult as it seems. Don't be the one to create new jurisprudence on tax crimes.

LLC "Organization" when submitting a VAT return for the 4th quarter. 2013 did not take into account on line 110 the amount of VAT (39,541 rubles) previously taken into account from paid advances reflected in the 3rd quarter. 2013 on line 150. At the moment, in 2016. the accountant found an error and sent an updated declaration for 04 sq. 2013 Question: What threatens this error to the company? Will there be a fine for this violation?

For late payment of VAT, your organization will be charged penalties, as well as a fine. The amount of the fine will be 20% of the amount of the arrears. If inspectors prove that non-payment was intentional, the fine will increase to 40 percent.

Sergei Razgulin, Acting State Councilor of the Russian Federation, 3rd class

How organizations transfer tax to the budget

Penalty for late payment

If the tax (including advance payments) was transferred later than the established deadlines, the tax office will charge the organization a penalty fee ().*

The fees are calculated as follows:

Penalties will accrue for each calendar day of delay in payment. Including weekends and public holidays. The entire period will be taken into account - from the next day after the deadline for paying tax until the date when the arrears are paid off. For the day when the obligation to pay the tax was fulfilled, penalties are not charged. This is due to the fact that they are charged only on debt to the budget. On the day when they presented to the bank payment order(carried out a set-off, etc.), the tax debt is considered already repaid. So it turns out that there is nothing to charge interest on: the basis for calculation on this day is zero.

Penalties are not charged if the arrears arose for the following reasons:

the property of the organization is arrested by the decision of the tax inspectorate;
operations on the organization's accounts were suspended, money and other property were arrested by a court decision as an interim measure.

In these cases, penalties are not charged for the entire period in which such decisions are in effect.

By submitting an application for a deferment (installment plan) or an investment tax credit, the organization will not suspend the accrual of interest on arrears. This is stated in paragraph 2 of paragraph 3 of Article 75 of the Tax Code of the Russian Federation.

In addition, penalties are not charged if the arrears arose due to the fact that, when calculating taxes, the organization was guided by written explanations from regulatory agencies and (or) adhered to the instructions (reasoned opinion) of the tax inspectorate sent to it in the process of tax monitoring (paragraph 8 of Art. 75 of the Tax Code of the Russian Federation).

Situation: can the tax inspectorate charge penalties for late payment of tax if it has not notified the organization about the change in the details of the account to which the tax should be transferred

No, he can not.

After all, if the organization was not notified of the change in the details, it has the right to transfer tax according to the previous details of the accounts of the Treasury of Russia. In general, the tax inspectorate is obliged to inform organizations about changes in the details of the accounts of the Treasury of Russia. The notification form was approved by order of the Federal Tax Service of Russia dated November 9, 2006 No. SAE-3-10 / 776. This document is a written explanation of the tax inspectorate. And the execution of such documents releases the organization from liability and penalties (subclause 6, clause 1, article 32, clause 8, article 75, clause 3, clause 1, article 111 of the Tax Code of the Russian Federation).

A similar point of view is reflected in the letter of the Ministry of Finance of Russia dated February 9, 2007 No. 03-02-07 / 1-60.

Penalties for non-payment of taxes

Attention: for non-payment of taxes, the organization and its officials will be punished. For this offense, tax, administrative and even criminal liability is provided.

Tax Liability

tax inspectors has the right to fine the organization. However, they can do this only for full or partial non-payment of tax at the end of the tax period. * No fines are charged on the amount of unpaid advance payments (clause 3 of article 58 of the Tax Code of the Russian Federation).

The penalty will be 20 percent of the amount of the arrears.* If the inspectors prove that the non-payment was intentional, the fine will increase to 40 percent. This follows from the Tax Code of the Russian Federation.

If the organization does not transfer tax, acting as a tax agent, then it will also be fined 20 percent of the amount ().

The tax inspectorate will send the demand for the payment of penalties to the organization within 20 working days from the date the decision on the results of the tax audit comes into force (clause 6, article 6.1 of the Tax Code of the Russian Federation).

Administrative responsibility

It happens that the tax was not paid due to a gross violation of accounting rules: when the tax was incorrectly calculated and its amount was distorted by at least 10 percent. Then the court may additionally bring the head of the organization or the chief accountant to administrative responsibility. The fine in this case will be from 2000 to 3000 rubles. ().

In each case, the perpetrator of the offense is determined individually. At the same time, the courts proceed from the fact that the head is responsible for organizing accounting, and the chief accountant for its correct maintenance and timely reporting ().

Usually the chief accountant or the one to whom his duties are transferred is recognized as guilty. The head of the organization is found guilty in the following cases:

if the organization did not have a chief accountant at all (decree of the Supreme Court of the Russian Federation of June 9, 2005 No. 77-ad06-2);
if accounting is maintained and taxes are calculated by a specialized organization. For example, an audit company (clause 26 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated October 24, 2006 No. 18);
if the cause of the violation was a written order of the head, with which the chief accountant did not agree (Code of the Russian Federation on Administrative Offenses.
In the future, fines can be challenged in court. And if the arbitration court cancels the tax liability in respect of the organization, then the magistrate's court, to which the director or accountant applies, must remove liability from these officials as well. Reason: confirmed arbitration court absence of corpus delicti (clause 2, part 1, article 24.5 of the Code of Administrative Offenses of the Russian Federation). This conclusion was reached by the Supreme Court of the Russian Federation in its decision of December 1, 2014 No. 80-AD14-8.

Criminal liability

If the inspection proves that non-payment of tax was the result of a crime, the court can sentence the perpetrators to criminal liability under articles and the Criminal Code of the Russian Federation.

At the same time, not only the head and chief accountant of the organization, but also other persons can be found guilty. Those who contributed to the crime. In simple terms, accomplices and instigators. For example, accountants who deliberately distorted primary documents, or tax consultants whose advice led to the commission of a crime. Such instructions are contained in the resolution of the Plenum of the Supreme Court of the Russian Federation dated December 28, 2006 No. 64.

Punishment for tax crimes can range from a small fine to a term of imprisonment. And criminal liability for non-payment of taxes can sometimes be brought even for unpaid tax when selling an apartment. About who and when the sanctions of the tax legislation can be applied, who is brought to administrative responsibility and when a criminal case is initiated about a tax crime, we will tell in this article.

General rules of liability for non-payment of taxes and fees

The essence of tax offenses is the illegality of the actions of a person who is obliged to pay fees established by the legislation of the Russian Federation. This is expressed both in action (submission of a declaration with a deliberately low tax base) and inaction (failure to provide a reporting declaration, non-transfer of funds to the state).

The grounds for liability of a taxpayer imply that a person can be held liable only for an offense provided for by the tax code. The basic rules for bringing to responsibility for the facts of committing tax offenses are provided for in Article 108 of the Tax Code of the Russian Federation. In general, the list of violations provided for by tax legislation is limited and is not subject to broad interpretation. At the same time, tax authorities who initiate prosecution of the violator should follow the procedure for applying penalties. Otherwise, the actions of their actions can be appealed and declared illegal.

Responsibility may come if there is an appropriate decision of the tax authority. It must be valid and contain a violation of tax laws. The decision is made based on the results of an audit (on-site or in-house) organized by the Federal Tax Service. It can be appealed by an interested person to a higher tax authority and court. If the decision of the tax authorities is not canceled, then we can talk about holding the taxpayer liable.

For violation of the Tax Code of the Russian Federation related to the obligation to pay taxes, the following may occur:
- tax liability(that is, financial, on the basis of the articles of the Tax Code of the Russian Federation, in relation to any taxpayers);
- administrative responsibility(in accordance with the Code of Administrative Offenses of the Russian Federation, in relation to officials and, in some cases, citizens);
- criminal liability(according to the articles of the Criminal Code of the Russian Federation, in relation to both citizens of individuals and representatives of organizations).
Regardless of the type of liability, in relation to the culprit, there may be a compulsory procedure for collecting debts resulting from non-payment to the state.

The taxpayer is not required to prove his non-involvement in the commission of a tax violation. The duty to confirm guilt rests with the inspection staff. In tax law, as well as in criminal or administrative law, any doubts about guilt are interpreted in favor of the taxpayer. The guilt of the violator who allowed non-payment of taxes can be in the form of:
- intent(deliberately ignoring the requirements of the Tax Code of the Russian Federation);
- imprudence(the perpetrator had to be aware of the illegality of his actions and foresee the onset of negative consequences, but was not attentive enough to comply with the requirements of the law).
Example #1. Nekrasov A.L. For many years he rented out his house for rent from which he had income. But he did not pay the tax, although he was well aware of the need to pay the 13% income tax. In this case, Nekrasov A.L. is subject to liability (tax or criminal, depending on the amount of non-payment), because he acted intentionally.

Example #2. Pokrynov I.M. also rented out his one-room apartment for rent, immediately for 2 years. Pokrynov was a law-abiding taxpayer. And right in the lease agreement he provided for a clause according to which the tenant was obliged to transfer 13% of the contract price to the details specified in the text. That is, he must pay tax for Pokrynov I.M. Thus, in total cost the rent has already included the amount of income tax. In 2017 Pokrynov I.M. checked the receipt of funds in personal account taxpayer on the website of the Federal Tax Service, but in 2018 did not check. Meanwhile, for 2017, the tax on income from renting an apartment by Pokrynov I.M. entered the budget, in violation of the very clause of the lease agreement. There was no payment for 2018. Thus it is Pokrynov AND.M. had no direct intent to evade tax. But with the required care, he had to prevent the consequences in the form of incomplete receipt of payments. In this case, Pokrynov's behavior is careless and he is responsible (in the given situation, tax).

There are circumstances that exclude guilt in committing tax violations, including those related to non-payment:
- forced actions that violate the law, caused by a natural disaster or other emergency event that does not depend on the will of a person;
- committing an offense individual whose mental or physical condition made it impossible to comply with the legal requirements of the law;
- violation of the Tax Code of the Russian Federation due to incompetent consultations of representatives of the Federal Tax Service or other authorized state authorities.
Of course, the listed reasons must be supported by evidence (a natural disaster - by the relevant services, media reports; a painful condition - by medical documents, expertise, etc.).

Sanctions for violation of the requirements of the Tax Code cannot be applied if the statute of limitations has passed ( 3 years) from the moment the offense was committed.

It is worth dwelling in more detail on the issue of calculating the statute of limitations for paying taxes: there are some peculiarities here. So, in 2016, the Federal Tax Service of Russia posted on its official website clarifications regarding the calculation of statute of limitations for tax offenses. Three years must be counted from the first day following the tax reporting period. Since the deadlines for submitting declarations to the IFTS are different depending on the type of taxation, the limitation period in a particular case may be different.

Example #3. In accordance with the norms of the Tax Code of the Russian Federation, the deadline for paying property tax for 2018 is limited to December 1 of the next year, that is, 12/01/2019. Thus, from December 2, 2022, it is impossible to hold a citizen accountable, since a three-year statute of limitations will expire (from December 2, 2019 to December 2, 2022).

Tax Liability

According to Article 107 of the Tax Code of the Russian Federation, both legal entities and individuals over the age of 16 can be held liable for tax evasion.

When an organization is liable to the tax inspectorate for non-payment of fees, it is not excluded that its head will be held administratively or criminally liable.

Tax liability is financial sanctions, that is, fines by decision of the tax authority that revealed violations. At the same time, it is possible to significantly reduce the fine (at least twice) if there is extenuating circumstances: non-payment due to special circumstances (serious illness of a family member, for example), under the influence of a threat or due to service dependence, etc. Conversely, the monetary sanction can be doubled in the presence of such an aggravating circumstance as the commission of a similar offense repeatedly. The recalculation of the fine, taking into account mitigating or aggravating circumstances, is entitled to be carried out either by the appellate instance of the tax authority or by the court.

The main types of tax offenses related to non-receipt of tax payments to the budget are:
1. activities of an individual entrepreneur or organization without registration with the Federal Tax Service. In fact, this is a hidden non-payment of taxes, for this there may be liability in the form of a sanction in the amount of 10% of the income for the unaccounted period (but not less than 40,000 rubles) - Part 2 of Art. 116 of the Tax Code of the Russian Federation.
2. Significant violations of the rules for calculating income and expenses for objects of taxation (a fine of 10,000-30,000 rubles) - Art. 120 of the Tax Code of the Russian Federation.
3. Failure to provide the IFTS with a declaration and other information required for tax control. This is one of the frequently used ways not to pay the state, the fine can be in the form of 5% of the amount to be declared for each month, but not more than 30% and not less than 1000 rubles - art. 119 of the Tax Code of the Russian Federation.
  Example #4. Karpov E.N. sold his car, which was in his possession for less than 3 years, but did not file a declaration. Based on the decision of the Federal Tax Service Inspectorate, Karpov may be held liable under this article if the value of the car sold exceeds 250,000 rubles.
4. Complete non-payment or illegally reduced payment of taxes. A sanction is imposed in the form of a fine of 20 to 40% of the unpaid amount.
  Example #5, in case of non-payment transport tax(for 2019 payment must be made before December 1, 2020), the tax authorities will charge penalties and may be subject to tax liability under Art. 122 of the Tax Code of the Russian Federation. If the amount of tax, for example, amounted to 10,000 rubles, then the penalty may be 2,000 rubles. If there is evidence of direct intent, the tax authorities can impose a fine of 4,000 rubles.
5. Violation by a tax agent of the requirements to withhold amounts from income (for example, non-payment of personal income tax - a fine of 1,000 rubles for each month of the reporting period is provided for this).
6. Refusal to provide tax authorities with documents upon request, as well as failure to provide information about the taxpayer. An offense of this kind can be both in the form of an official refusal to provide the required documents, and in the form of evasion of the request. The fine for organizations and individual entrepreneurs in such cases is 10,000 rubles, for individuals - 1,000 rubles.
By the nature of the listed violations of the tax law, one way or another, they are connected with non-payment of taxes and fees. So, if an individual entrepreneur provides a distorted income statement to the IFTS, in most cases this is the way to avoid paying tax. Then there are grounds for a financial sanction.

Administrative responsibility

The general conditions of administrative liability for non-payment of taxes are the same:
- presumption of innocence;
- for the same offence, a person may be prosecuted only once;
- all doubts are interpreted in favor of the person;
- it is necessary to comply with the procedural procedures for bringing to responsibility.
Violations in the payment of taxes and councils are contained in articles 15.3 - 15.9, as well as 15.11 of the Code of Administrative Offenses of the Russian Federation.

Officials are held accountable under administrative law. This does not exclude tax liability and the application of a fine under the Tax Code of the Russian Federation in relation to the organization of which this person is a representative.

Citizens, including individual entrepreneurs, cannot be the subject of administrative violations (an exception is Art. 15.6). We are talking only about the management personnel of the organization, which disposes, manages property, keeps records (Article 2.4 of the Code of Administrative Offenses of the Russian Federation).

The basis for bringing to responsibility under administrative law is a protocol on violation. It is compiled by employees of the IFTS. The person in respect of whom the inspection was carried out and the protocol was drawn up has the full right to get acquainted with all the materials of the inspection, to appeal against them in court.

The most common administrative offenses in the field of taxation are:

1. violation of the terms of registration with the tax authority. FROM Article 15.3 of the Code of Administrative Offenses of the Russian Federation provides for a fine of 500-1000 rubles, and for those who conducted their activities in such an “unrecorded” period, the amount of the fine increases to 3000 rubles. Officials involved for the first time under such an article may only be issued a warning without the application of a penalty. But if the violation of the staging period does not exceed 2-3 weeks.

The specified norm of administrative legislation "refers" to Articles 23.83 of the Tax Code, which refer to the rules for registering organizations and individual entrepreneurs. So, the organization is obliged to register with the IFTS at the location within 10 days after registration. In case of violation of this requirement, the official legal entity subject to liability under Art. 15.3 of the Code of Administrative Offenses of the Russian Federation, which does not exclude the application of a tax sanction under Art. 116 of the Tax Code of the Russian Federation to the enterprise itself.

2. violation of reporting deadlines (that is, filing a declaration) with the IFTS. Article 15.5 of the Code of Administrative Offenses of the Russian Federation provides for a soft sanction - a warning or a fine of 300-500 rubles. Usually, the chief accountant or another person who is entrusted with the function of submitting a declaration to the inspection is recognized as guilty under this rule. In addition, individuals are liable for the same actions and on the basis of Art. 119 of the Tax Code of the Russian Federation.

3. Refusal to provide the documents required by the IFTS employees for the implementation of control measures of a tax nature. This is Article 15.6 of the Code of Administrative Offenses of the Russian Federation with a fine for officials in the amount of 300-500 rubles. In addition, in part 1 of Art. 15.6 of the Code of Administrative Offenses of the Russian Federation there is a separate fine for individuals, including entrepreneurs, in the amount of 100-300 rubles.

The essence of the offense is the complete or partial refusal to provide the documents required by the tax inspectorate for verification. The tax code has a special procedure - the taxpayer is given a request to provide information within 10 working days from the date of its receipt.

After the expiration of the 10-day period, in case of failure to provide information, the measures of Art. 15.6 of the Code of Administrative Offenses of the Russian Federation. Administrative proceedings are initiated even when the documents were provided, but untimely or with distorted information.

4. significant violations of accounting. FROM Article 15.11 of the Code of Administrative Offenses of the Russian Federation provides for a fine in the amount of 5,000 to 10,000 rubles (from 10,000 to 20,000 rubles in case of a repeated violation of a similar nature during the year). We are talking about non-compliance with the Law of the Russian Federation No. 129-FZ “On Accounting” regarding the execution of primary accounting and other documents.

In case of incorrect filling of forms financial statements, approved by the Order of the Ministry of Finance of the Russian Federation, administrative proceedings may be initiated against an official under Art. 15.11 of the Code of Administrative Offenses of the Russian Federation. If such actions distorted the reporting by more than 10%. It is clear that according to this norm of the Code of Administrative Offenses of the Russian Federation, accountants are mainly involved.

Question:
What if there is no full-time accountant in the organization and the reporting is handled by a third-party specialist working under a contract?

In accordance with the explanations of the Supreme Court of the Russian Federation, in such cases, he is liable under Art. 15.11 of the Code of Administrative Offenses of the Russian Federation the head of a legal entity, since he is responsible for controlling the enterprise as a whole.

The issue of bringing officials to justice under the listed articles of the Code of Administrative Offenses of the Russian Federation is considered by the courts, the protocols are drawn up by employees of the Federal Tax Service.

Criminal liability for non-payment of taxes

Those who do not pay taxes can become accused under the following articles of the Criminal Code of the Russian Federation:
- 198 - tax evasion by an individual;
- 199 - evasion of taxes and fees by representatives of a legal entity;
- 199.1 - non-transfer of deductions in favor of the state by a tax agent.
For these acts, it is allowed to bring to criminal responsibility a person who is over 16 years old. However, judicial practice does not know examples of conviction of minors under these articles of the criminal law.

Tax liability for non-payment of taxes may occur by decision of the tax authority. And for a criminal case, the decision of the Federal Tax Service is also necessary. In general, the inspection is obliged to send information about the identified non-payment to the investigating authorities, if four conditions are met simultaneously:
1. the decision to bring to tax liability has been adopted and entered into force;
2. the taxpayer was notified of the obligation to pay the tax with interest on time;
3. after the expiration of the period specified in the notification, 2 months have passed;
4. a large or especially large amount of the unpaid amount is established.
The inspection is obliged to send information within 10 days from the date of detection of violations. After that, the investigative committee issues a decision to initiate a criminal case or to refuse to initiate a criminal case. It depends on the presence / absence of corpus delicti.

Article 198 of the Criminal Code of the Russian Federation

Defendants under Art. 198 of the Criminal Code of the Russian Federation can be a citizen as an individual (including an individual entrepreneur, a private notary, a lawyer, etc.). That is, the official cannot be the subject of this crime.

Non-payment of taxes under this article entails the initiation of a criminal case if (alternatively):
- not provided by IFTS tax return or other documentation (extracts from accounting books, sales books, journal of business transactions, payroll, etc.), the submission of which to state bodies is mandatory;
- the declaration is submitted, but it contains deliberately false information, as a result of which a tax debt arises.
In addition, a mandatory feature of the criminal corpus delicti is a certain amount of the unpaid amount. This is a large or extra large size.

Question:
What is the amount of criminal liability under Art. 198 of the Criminal Code of the Russian Federation?

Answer: A large amount is recognized as the amount of unremitted tax over 900,000 rubles for three financial years (in a row), provided that this amount is more than 10% of the total aggregate (or the tax base exceeds 2,700,000 rubles) tax liabilities.

A particularly large amount is recognized as an amount over 4,500,000 rubles for three years, if this amount of debt is more than 20% of the total in aggregate (or the tax base exceeds 13,500,000 rubles).

If the amount of unpaid taxes does not reach a large or especially large amount, then administrative liability arises in relation to the person. No criminal case can be initiated. Although at the same time it is possible to bring both to tax and criminal liability.

For a crime under Art. 198 of the Criminal Code of the Russian Federation, as for other tax crimes, it is important to establish a period for filing a declaration for a particular tax. For non-payment, you can be attracted under the Criminal Code of the Russian Federation only if the individual did not complete the transfer on the date following such a period.

Example #6. According to part 2 of article 346.23 of the Tax Code, an individual entrepreneur is obliged to submit to the IFTS USN declaration(Simplified tax system) until April 30 of the year following the reporting year. If for three consecutive years an individual entrepreneur submitted such a declaration with false information (or did not submit it at all) and the amount of non-payment as of May 1 is more than 900 thousand rubles, he is liable under Art. 198 of the Criminal Code of the Russian Federation.

Note that those three years that follow in a row one after the other before the year of initiation of the case are taken into account.

The debt itself must be expressed only in the amount of unpaid taxes. Fines, penalties, etc. are not cumulative.

An individual found guilty of committing a crime under Art. 198 of the Criminal Code of the Russian Federation, a punishment may be imposed in the form of:
- a fine in the amount from 100,000 rubles to 300,000 rubles or imprisonment up to one year(under part 1 of article 198 of the Criminal Code of the Russian Federation, when the amount of tax debt corresponds to a large amount);
- a fine in the amount from 200,000 rubles to 500,000 rubles or imprisonment up to 3 years(under part 2 of article 198 of the Criminal Code of the Russian Federation - the amount of non-payment is an especially large amount).
Example #7. An example of a criminal case under Art. 198 of the Criminal Code of the Russian Federation can serve the following situation. For three years, Ivanov K.E. He rented his own prestigious apartment in the city of Moscow, the monthly payment was 250,000 rubles. At the same time, Ivanov did not declare his income and did not pay taxes. IFTS, in case of detection of such a fact, has the right to calculate non-payment and make an appropriate decision. This will be followed by a requirement to pay not only the main amount of the tax for renting an apartment, but also fines and penalties. If Ivanov does not do this, he may be held criminally liable under Part 1 of Art. 198 of the Criminal Code of the Russian Federation, since for three years the unpaid tax (without penalties and fines) will amount to 1,170,000 rubles (250 thousand rubles X 12 months X 3 years X 13%), that is, over 900,000 rubles.

Citizens can be prosecuted with a fine and for non-payment of taxes on the sale of an apartment or other real estate, if all the signs of a crime under Art. 198 of the Criminal Code of the Russian Federation (period, amount, intent) are confirmed by the collected evidence.

If the declaration is submitted on time and contains reliable data, but the tax has not been paid, criminal liability is excluded. Here we can only talk about the application of p.p. 1.3 Art. 122 of the Tax Code of the Russian Federation (penalty of 20% or 40% of the total debt).

Criminal liability for non-payment of taxes by an individual is excluded, when the signs of a crime are confirmed, the perpetrator evaded taxes for the first time, but at the same time paid in full including penalties and fines. If by the time of full payment the case has already been initiated, it must be terminated. Thus, the legislator makes it possible for a person to avoid a criminal record. You need to repent and agree with the accusation, paying off all tax debts.

Article 199 of the Criminal Code of the Russian Federation

In accordance with Art. 199 of the Criminal Code of the Russian Federation, the following persons can be held criminally liable for non-payment of taxes:
- heads of the taxpaying organization (for example, directors of an LLC);
- chief accountant (or ordinary accountant, if the organization's staff does not provide for the position of chief accountant);
- other persons who actually perform the role of a manager or accountant are required to sign the documentation sent to the IFTS.
In some cases, ordinary employees of a legal entity are also involved under this article. If they draw up accounting documents and entered false information in them to deliberately evade the organization from paying legal deductions. In such situations, these people are recognized as accomplices in the commission of a crime.

Based on practice, according to Art. 199 of the Criminal Code of the Russian Federation, cases are often initiated and investigated on the facts of non-payment of income tax or VAT.

The signs of this crime are similar to the signs of Art. 198 of the Criminal Code of the Russian Federation, with the exception of large and extra large sizes. According to Art. 199 of the Criminal Code of the Russian Federation, the legislator provides for the following amounts from which liability for non-payment of taxes by a legal entity begins:
- a large amount is recognized as an amount over 5 million rubles for three financial years (in a row) provided that this amount is more than 25% of the total amount of tax liabilities (or the tax base exceeds 15,000,000 rubles).
- an especially large amount is recognized as an amount over 15 million rubles for three years, if this amount is more than 50% of the total in the aggregate (or the tax base exceeds 45,000,000 rubles).
If the subject of the crime under Article 199 of the Criminal Code of the Russian Federation is found guilty, he may be sentenced in the form of:
- a fine in the amount 100000-300000 rubles up to 2 years(under the first part, in case of non-payment of the amount on a large scale);
- a fine in the amount 200000-500000 rubles, as well as imprisonment for a term up to 6 years(under the second part, in case of non-payment of the amount on an especially large scale and / or in case of committing a crime as part of a group of persons by prior agreement).
In addition, an additional punishment may be imposed on a convicted person under both parts of the article. Prohibition to hold leadership positions (including those related to accounting), up to 3 years.

Similar to Article 198 of the Criminal Code of the Russian Federation, the head of an organization cannot be held criminally liable, and the initiated case is subject to termination when the collection debt is paid in full, including penalties and fines.

Article 199.1 of the Criminal Code of the Russian Federation

In accordance with Art. 199.1 of the Criminal Code of the Russian Federation, a charge may be brought against a tax agent. It can be an individual entrepreneur, as well as the head of an organization that is obliged to calculate and withhold, as well as transfer tax (for example, income tax) for the taxpayer. That is, a citizen (for example, its employee) received income from the organization (IP) (in the form of a salary), but out of personal interest, the director of the company did not transfer 13% of personal income tax for the employee to the budget on a large scale. This is a tax agent's crime.

The crime is considered committed from the moment of non-transfer within the period established by the requirements of the Tax Code of the Russian Federation, the punishment and the values of the amount of underpayment are similar to the description contained in Article 199 of the Criminal Code of the Russian Federation.

Statute of limitations for tax crimes

The statute of limitations for criminal liability depends on the category of crime. When the statute of limitations expires, the persecution of the person stops (if it has not started, the case is not initiated).

Article 78 of the Criminal Code of the Russian Federation provides that in cases of minor gravity (that is, under Parts 1 and Part 2 of Article 198 of the Criminal Code of the Russian Federation, Part 1 of Article 199 of the Criminal Code of the Russian Federation, Part 1 of Article 199.1 of the Criminal Code of the Russian Federation), the limitation period is 2 of the year. For serious crimes (part 2 of article 199 of the Criminal Code of the Russian Federation), this period is 10 years. For tax crimes, the statute of limitations is calculated from the date following the last day of the reporting period.

Example #8. The last date for submitting VAT returns for the 1st quarter of 2019 is April 25, 2019. If for the previous 3 years the person involved in the case did not submit reports for all periods, a criminal case may be initiated against him under Part 1 of Art. 198 of the Criminal Code of the Russian Federation (if the non-payment is 900,000 rubles). At the same time, if the investigation of the case drags on and a verdict is not yet made in 2021, the accused after 04/25/2021 may declare the case dismissed due to the expiration of the statute of limitations provided for in paragraph “a” of part 1 of Art. 78 of the Criminal Code of the Russian Federation (that is, after 2 years from the end of the last reporting period). Depending on the stage at which the proceedings will be, the case will be terminated by the court or the investigating authorities.

A guilty verdict, as well as termination of a case on non-rehabilitating grounds (amnesty, active repentance, etc.) do not relieve a person from paying the tax debt and all additional charges. Usually, a criminal case already contains a lawsuit on behalf of the Federal Tax Service Inspectorate or the prosecutor's office, the decision on which is made along with the sentencing of the case.

Thus, the criminal liability of tax evaders is an extreme measure, when all measures to comply with tax laws by the state have already been exhausted. Loyal to tax evaders and criminal procedure law. So, in accordance with the rules of Art. 108 of the Code of Criminal Procedure of the Russian Federation, a person accused of committing a crime in the field of taxation, detention as a preventive measure for the period of investigation can be applied only in exceptional cases, specially provided for by law (lack of permanent registration in the territory of the Russian Federation, identity not established, wanted list or repeated violation of the previous chosen measure of restraint).

Payment of taxes established by laws is the responsibility of an individual and a legal entity Russian Federation. Failure to fulfill this obligation is an offense, in connection with which administrative, tax or even criminal liability arises.
Penalty of individual entrepreneurs for failure to file reports and non-payment of taxes in 2018
The activities of individual entrepreneurs are regulated by tax, administrative and criminal codes, which provide for various types of penalties, the nature and amount of which depends on the type and degree of violation.
In addition to imposing penalties, representatives tax authorities can suspend all debit transactions on IP accounts, except for payments that, in accordance with the law, have a priority higher than tax ones. This right is provided for by Article 76 of the Tax Code of the Russian Federation and is available for use in case of violation of the deadline for filing a declaration for more than 10 days. The removal of the arrest is carried out the next day after the submission of the declaration.
note that the payment of the fine does not exempt you from paying the tax itself and late payment penalties.
Penalty for non-payment of personal income tax by a tax agent in 2018
All employers, including individual entrepreneurs, are tax agents who are required to withhold and transfer personal income tax from the accrued income of their employees. It is very important to do this in a timely manner and not to violate the established payment deadlines, as this will avoid the accrual of fines and penalties.
For violation of deadlines payment of personal income tax there is a penalty of 20% of the total amount that the tax agent was obliged to transfer. The penalty is charged only if the agent had no obstacles to deduct the tax. For example, if income was paid in kind, then tax withholding is not provided, therefore, a fine is not applicable to the tax agent. Withholding personal income tax is carried out only from income in cash (clause 4, article 226 of the Tax Code of the Russian Federation).
note, the accrual of penalties cannot be avoided, even if the overdue tax is paid earlier than the submission of personal income tax returns.
Important! In order to avoid a fine, the tax agent is obliged to inform in writing about the impossibility of withholding personal income tax to the individual taxpayer and the IFTS authority (clause 5 of article 226 of the Tax Code of the Russian Federation, letter of the Ministry of Finance of the Russian Federation of 09.02.2010 No. 03-04-06 / 10-12). The message is a certificate in the form 2-NDFL, which must be sent before March 1 of the year following the reporting one (clause 2 of the Order of the Federal Tax Service dated November 17, 2010 No. MMV-7-3 / 611).
If personal income tax was withheld, but not transferred within the prescribed period, then a penalty for each overdue calendar day is charged on the amount of the arrears that arose as a result of non-payment of tax (paragraph 7 of Article 75 of the Tax Code). The penalty is 1/300 of the Central Bank refinancing rate (in 2018 - 10%).
note! If personal income tax was not withheld at all, then the accrual of penalties and arrears is not provided, since according to the law, tax payment at the expense of the tax agent is not possible (clause 9, article 226 of the Tax Code of the Russian Federation).
You can not avoid the accrual of penalties also for late tax reporting. For violation of the deadlines for filing 2-NDFL, the tax agent will be required to pay 200 rubles. a fine for each certificate not submitted on time, and for missing the filing of 6-NDFL (quarterly calculation) - a fine of 1000 rubles. for each overdue month (clauses 1 and 1.2 of article 126 of the Tax Code of the Russian Federation).
Penalty for late payment of VAT in 2018

In case of late payment of VAT, fines and penalties are charged. The tax penalty for non-payment of VAT is 20% of the unpaid amount (paragraph 1 of article 122 of the Tax Code), and if mercenary intent regarding non-payment of VAT is proved, then the amount of the fine can increase to 40% of the amount of arrears (paragraph 2 of paragraph 3 of Art. 122 NK).
In addition, tax officials have the right to seize and suspend all operations on all bank accounts of the organization (clause 3 of article 76 of the Tax Code).
Remember that VAT is paid on the basis of a VAT return.
For late submission of a VAT return, a fine of 5% for each month overdue, but not less than 1,000 rubles, is provided.
So, it can be concluded that the best way protection from fines and penalties is the timely filing of reports and payment of taxes.

Share this article:
Similar articles