New edition Art. 112 Tax Code of the Russian Federation

1. Circumstances mitigating responsibility for committing a tax offense are:

1) the commission of an offense as a result of a combination of difficult personal or family circumstances;

2) the commission of an offense under the influence of threat or coercion or due to material, service or other dependence;

2.1) difficult financial situation individual who is held liable for committing a tax offense;

3) other circumstances that the court or tax authority considering the case may recognize as mitigating liability.

2. An aggravating circumstance shall be the commission of a tax offense by a person previously held accountable for a similar offense.

3. A person from whom a tax sanction has been levied shall be deemed to have been subject to this sanction within 12 months from the date of entry into force of a court decision or a tax authority.

4. Circumstances mitigating or aggravating liability for committing a tax offense shall be established by the court or tax authority considering the case and taken into account when applying tax sanctions.

Commentary on Article 112 of the Russian Tax Code

Circumstances mitigating liability for an already committed tax offense are:

a) commission of an offense due to:

Difficult personal circumstances. In other words, these circumstances are inextricably linked with the personality of the offender himself (for example, his serious illness). At the same time, we are talking not only about individuals as taxpayers (tax agents), but also about those cases when the latter, performing the functions of managers (other persons exercising managerial functions) of an organization, commit offenses under a combination of difficult personal circumstances;

family circumstances. We are talking about circumstances related to the family of the taxpayer ( tax agent) - an individual or a manager (another person performing managerial functions) of an organization. These circumstances can be very diverse: a serious illness of a spouse that requires significant expenses for treatment, poor financial situation of the family, death of family members, etc. In any case, it is necessary to give an assessment to the mentioned circumstances based on the specific situation, since the presence of difficult personal and family circumstances in itself does not exempt from paying tax;

b) commission of a tax offense under the influence (or by virtue of):

Threats. It can have a variety of manifestations: a threat in verbal form, in the form of some actions (for example, a gun is put to the temple) that represent a clear danger. The threat may concern causing harm not only to the interests, property, intangible benefits (life, health, honor, etc.) of the taxpayer himself, but also to members of his family, his relatives, employees of the organization he leads, etc. The threat of undermining the business reputation of an organization, an individual entrepreneur, etc. is also taken into account;

Coercion. This refers to both physical (violence, torture, beatings, causing acute pain, other physical and moral suffering), and mental (massive impact on the consciousness of a person, including through hypnosis) coercion;

material dependency. For example, an entrepreneur commits a tax offense at the direction of a person who provides him with housing, means of production, energy, raw materials, semi-finished products, etc. (under the threat of individual entrepreneur may lose the mentioned benefits if he does not follow the instructions);

service dependency. This refers to the pressure of a person who is dependent on the taxpayer (tax agent);

Another dependency. An example is the relationship between interdependent persons (Article 20 of the Tax Code of the Russian Federation);

c) other circumstances that the court (during proceedings on the application of a tax sanction for committing a tax offense) may be recognized as mitigating liability. There are two important points to note:

The list of mitigating circumstances is open. In other words, the circumstances referred to in paragraphs. 1 and 2, paragraph 1 of Art. 112 of the Tax Code of the Russian Federation, must be taken into account in any case. Other circumstances (taking into account the specific situation) can be assessed as mitigating liability at the discretion of the court;

In general, neither the court nor the tax authority is not entitled, but can significantly (within the framework of a specific sanction) reduce its size (volume, limits) (Article 114 of the Tax Code of the Russian Federation).

The description of the rules of paragraph 2 of the commented article shows that:

a) there is only one aggravating circumstance - the commission of a tax offense by a person who has previously been held liable for a similar offense;

b) if a person has previously committed a tax offense, but was not brought to tax liability (regardless of the reason), then there is no reason to speak of an aggravating circumstance.

The rules of paragraph 3 of the commented article make it possible to determine what is considered "bringing to tax liability for a previously committed tax offense." It has been established that a person is considered subject to a tax sanction when:

It was imposed by a court decision or a tax authority. Of course, paragraph 3 of Art. 112 of the Tax Code of the Russian Federation contradicts the rules of paragraph 7 of Art. 114 of the Tax Code of the Russian Federation. The tax sanction is imposed only by the court (Articles 75, 101, 104, 105, 114 of the Tax Code of the Russian Federation) for the commission of an offense;

No more than 12 calendar months have passed from the day following the date of entry into force of the court decision.

The rules of paragraph 4 of the commented article imperatively establish that:

Mentioned in Art. 112 of the Tax Code of the Russian Federation, circumstances are established only by the court (i.e. whether they take place or are absent when a specific tax offense is committed), but not by other authorities (including tax authorities);

These circumstances must be taken into account by the court when imposing a tax sanction for a specific tax offense (Article 114 of the Tax Code of the Russian Federation).

Another commentary on Art. 112 of the Tax Code of the Russian Federation

1. In paragraph 1 of Art. 112 of the Code, circumstances mitigating liability for committing a tax offense are indicated:

the commission of an offense due to a combination of difficult personal or family circumstances (subclause 1 clause 1);

the commission of an offense under the influence of threat or coercion or due to material, service or other dependence (subclause 2 clause 1);

other circumstances that the court or tax authority considering the case may be recognized as mitigating liability (subclause 3 clause 1).

The list of circumstances mitigating liability for committing a tax offense is not closed. The court or tax authority considering the case may recognize circumstances extenuating liability and other than those specified in subpara. 1 and 2 p. 1 of the commented article.

Paragraph 17 of the Review of Authorization Practices arbitration courts cases related to the application of certain provisions of the Code, an example is given when, when considering an application from a tax authority for the recovery of a fine from a taxpayer, provided for in paragraph 1 of Art. 122 of the Code, the court, based on the specific circumstances of the case, on the basis of Article. 112 and 114 of the Code reduced the amount of the fine, recognizing the independent identification and correction by the taxpayer of errors in tax return and filing with the tax authority an application for its addition and change by a mitigating circumstance.

Circumstances mitigating liability must be established in the presence of relevant evidence presented by the person subject to tax liability, which, in meaning and content, relate to tax periods in which a tax offense has been committed.

2. In paragraph 2 of Art. 112 of the Code indicates an aggravating circumstance; commission of a tax offense by a person previously held liable for a similar offense.

It seems that a similar offense means a tax offense provided for by the same article, Ch. 16 of the Code (regardless of paragraphs of the article), for which the person was previously held liable for tax liability.

It should be noted that the commented article establishes the only circumstance aggravating liability and does not provide for the possibility of recognition by the court of other circumstances aggravating liability.

An aggravating circumstance must be established if there are documents at the disposal of the tax authority or submitted by the tax authority to the court.

3. Paragraph 3 of Art. 112 of the Code establishes the period during which a person is considered subject to a tax sanction: 12 months from the date of entry into force of a court decision or a tax authority on the application of this sanction.

Establishing the period during which a person is considered subject to a tax sanction is important for establishing the presence or absence of an aggravating circumstance. In the event that 12 months have elapsed since the entry into force of the decision of the court or the tax authority on the application of the tax sanction, the commission by the person from whom the tax sanction has been levied of a similar tax offense will not be an aggravating circumstance.

4. According to paragraph 4 of Art. 112 of the Code, circumstances mitigating or aggravating liability for committing a tax offense are established by the court or tax authority considering the case. In sub. 3 p. 1 art. 112 of the Code also provides that the court or tax authority considering the case may recognize other circumstances than those specified in subpara. 1 and 2, paragraph 1 of the commented article, circumstances mitigating liability.

Circumstances mitigating or aggravating liability for committing a tax offense are taken into account by the court or tax authority considering the case when imposing sanctions for tax offenses in the manner prescribed by Art. 114 of the Code (see commentary to Article 114 of the Code), in particular:

in the presence of at least one circumstance mitigating liability, the amount of the fine is subject to reduction by no less than two times in comparison with the established amount (clause 3 of article 114);

in the presence of an aggravating circumstance, the amount of the fine increases by 100% (clause 4, article 114).

• Up

Article 112

1. Circumstances mitigating responsibility for committing a tax offense are:

1) the commission of an offense as a result of a combination of difficult personal or family circumstances;

2) the commission of an offense under the influence of threat or coercion or due to material, service or other dependence;

2.1) the difficult financial situation of an individual held liable for committing a tax offense;

3) other circumstances that the court or tax authority considering the case may recognize as mitigating liability.

2. An aggravating circumstance shall be the commission of a tax offense by a person previously held accountable for a similar offense.

3. A person from whom a tax sanction has been levied shall be deemed to have been subject to this sanction within 12 months from the date of entry into force of a court decision or a tax authority.

4. Circumstances mitigating or aggravating liability for committing a tax offense shall be established by the court or tax authority considering the case and taken into account when applying tax sanctions.

1. Circumstances mitigating responsibility for committing a tax offense are:

1) the commission of an offense as a result of a combination of difficult personal or family circumstances;

2) the commission of an offense under the influence of threat or coercion or due to material, service or other dependence;

2.1) the difficult financial situation of an individual held liable for committing a tax offense;

3) other circumstances that the court or tax authority considering the case may recognize as mitigating liability.

2. An aggravating circumstance shall be the commission of a tax offense by a person previously held accountable for a similar offense.

3. A person from whom a tax sanction has been levied shall be deemed to have been subject to this sanction within 12 months from the date of entry into force of a court decision or a tax authority.

4. Circumstances mitigating or aggravating liability for committing a tax offense shall be established by the court or tax authority considering the case and taken into account when applying tax sanctions.

Comments to Art. 112 Tax Code of the Russian Federation

These circumstances are listed in paragraph 1 of Article 112 of the Tax Code of the Russian Federation. Unlike the grounds discussed above, specified in paragraph 1 of Article 111 of the Tax Code of the Russian Federation, the circumstances provided for in paragraph 1 of Article 112 of the Tax Code of the Russian Federation do not completely exclude the onset of tax liability, but only reduce the amount of the imposed fine.

In each case, the court or the tax authority independently decides the question of the legality of mitigating liability based on specific circumstances.

Paragraph 2 of Article 112 of the Tax Code of the Russian Federation establishes the only aggravating circumstance - the commission of a tax offense by a person previously held accountable for a similar offense.

1. Circumstances mitigating responsibility for committing a tax offense are:

1) the commission of an offense as a result of a combination of difficult personal or family circumstances;

2) the commission of an offense under the influence of threat or coercion or due to material, service or other dependence;

2.1) the difficult financial situation of an individual held liable for committing a tax offense;

3) other circumstances that the court or tax authority considering the case may recognize as mitigating liability.

2. An aggravating circumstance shall be the commission of a tax offense by a person previously held accountable for a similar offense.

3. A person from whom a tax sanction has been levied shall be deemed to have been subject to this sanction within 12 months from the date of entry into force of a court decision or a tax authority.

4. Circumstances mitigating or aggravating liability for committing a tax offense shall be established by the court or tax authority considering the case and taken into account when applying tax sanctions.

Commentary on Art. 112 Tax Code of the Russian Federation

1. The rules of paragraph 1 of the commented article are devoted only to circumstances mitigating liability for committing tax offenses (the rules of paragraph 2 of article 112 of the Tax Code of the Russian Federation are devoted to aggravating circumstances).

In doing so, the following must be taken into account:

These circumstances can be discussed only when the offense has already been committed;

The circle of mitigating circumstances in paragraph 1 of Article 112 of the Tax Code of the Russian Federation is not exhaustive.

Mitigating circumstances should not be confused with:

Not with circumstances excluding bringing a person to responsibility;

Neither with circumstances excluding the guilt of a person in committing a tax offense.

2. Circumstances mitigating liability for an already committed tax offense are:

a) commission of an offense due to:

Difficult personal circumstances. In other words, these circumstances are inextricably linked with the personality of the offender himself (for example, his serious illness). At the same time, we are talking not only about individuals as taxpayers (tax agents), but also about those cases when the latter, performing the functions of managers (other persons exercising managerial functions) of an organization, commit offenses under a combination of difficult personal circumstances;

family circumstances. We are talking about circumstances related to the family of a taxpayer (tax agent) - an individual or a head (another person performing managerial functions) of an organization. These circumstances can be very diverse: a serious illness of a spouse that requires significant expenses for treatment, poor financial situation of the family, death of family members, etc. In any case, it is necessary to give an assessment to the mentioned circumstances based on the specific situation, since the presence of difficult personal and family circumstances in itself does not exempt from paying tax;

b) commission of a tax offense under the influence (or by virtue of):

Threats. It can have a variety of manifestations: a threat in verbal form, in the form of some actions (for example, a gun is put to the temple) that represent a clear danger. The threat may concern causing harm not only to the interests, property, intangible benefits (life, health, honor, etc.) of the taxpayer himself, but also to members of his family, his relatives, employees of the organization he leads, etc. The threat of undermining the business reputation of an organization, an individual entrepreneur, etc. is also taken into account;

Coercion. This refers to both physical (violence, torture, beatings, causing acute pain, other physical and moral suffering), and mental (massive impact on the consciousness of a person, including through hypnosis) coercion;

material dependency. For example, an entrepreneur commits a tax offense at the direction of a person who provides him with housing, means of production, energy, raw materials, semi-finished products, etc. (under the threat that the individual entrepreneur may lose the mentioned benefits if he does not comply with the instructions);

service dependency. This refers to the pressure of a person who is dependent on the taxpayer (tax agent);

Another dependency. An example is the relationship between interdependent persons (Article 20 of the Tax Code of the Russian Federation);

c) other circumstances that the court (during proceedings on the application of a tax sanction for committing a tax offense) may be recognized as mitigating liability. There are two important points to note:

The list of mitigating circumstances is open. In other words, the circumstances mentioned in subparagraphs 1 and 2 of paragraph 1 of Article 112 of the Tax Code of the Russian Federation must be taken into account in any case. Other circumstances (taking into account the specific situation) can be assessed as mitigating liability at the discretion of the court;

In general, neither the court nor the tax authority has the right to exempt from liability for committing a tax offense, but they can significantly (within the framework of a specific sanction) reduce its size (volume, limits) (Article 114 of the Tax Code of the Russian Federation).

3. The description of the rules of paragraph 2 of the commented article shows that:

a) there is only one aggravating circumstance - the commission of a tax offense by a person who has previously been held liable for a similar offense;

b) if a person has previously committed a tax offense, but was not brought to tax liability (regardless of the reason), then there is no reason to speak of an aggravating circumstance.

4. The rules of paragraph 3 of the commented article make it possible to determine what is considered "bringing to tax liability for a previously committed tax offense." It has been established that a person is considered subject to a tax sanction when:

It was imposed by a court decision or a tax authority. Of course, paragraph 3 of Article 112 of the Tax Code of the Russian Federation contradicts the rules of paragraph 7 of Article 114 of the Tax Code of the Russian Federation. The tax sanction is imposed only by the court (Articles 75, 101, 104, 105, 114 of the Tax Code of the Russian Federation) for the commission of an offense;

No more than 12 calendar months have passed from the day following the date of entry into force of the court decision.

5. The rules of paragraph 4 of the commented article imperatively establish that:

Judicial practice under article 112 of the Tax Code of the Russian Federation

Ruling of the Supreme Court of the Russian Federation of January 9, 2018 N 304-KG17-19835 in case N A45-20959/2016

As seen from the judicial acts, the decision of 07/04/2016 N 624, adopted on the basis of the results desk audit tax return for value added tax (hereinafter referred to as VAT) for the 4th quarter of 2015, the company was additionally assessed 2,721,905 rubles of VAT, the corresponding amounts of penalties and fines were accrued (taking into account paragraph 4 of the article and paragraph 3 of the article of the Tax Code Russian Federation).

Ruling of the Supreme Court of the Russian Federation of February 8, 2018 N 305-KG17-23390 in case N A40-66585/2016

Refusing to satisfy the stated requirements, the court of first instance, having assessed the totality and interrelationships of the evidence presented in the case file, guided by the provisions of articles , , , , , , , Tax Code of the Russian Federation (hereinafter - tax code), articles 330, 331 Civil Code of the Russian Federation, Articles 15, 191 of the Labor Code of the Russian Federation, Regulations on the conditions of remuneration for the heads of state-owned enterprises when concluding with them employment contracts(contracts), approved by Decree of the Government of the Russian Federation of March 21, 1994 N 210, taking into account the explanations set out in the letter of the Ministry of Labor of the Russian Federation of April 28, 1994 N 727-RB, came to the conclusion that the contested decision of the inspection complies with applicable law and does not violates the rights and legitimate interests of the applicant.

Ruling of the Supreme Court of the Russian Federation of February 28, 2018 N 305-KG17-23723 in case N A40-31498/17

In addition, taking into account the factual circumstances established in this dispute, the courts, guided by the provisions of Articles , , of the Tax Code, came to the conclusion that there were no grounds for reducing the amount of tax sanctions due to the systematic violation by the company of the statutory deadlines for tax transfer.

Ruling of the Supreme Court of the Russian Federation of April 11, 2018 N 301-KG17-22967 in case N A79-8152/2016

Guided by the provisions of articles , , , , , , , , , of the Tax Code, federal law dated 25.02.1999 N 39-FZ "On investment activity in the Russian Federation, carried out in the form capital investments", Federal Law of December 30, 2004 N 214-FZ "On Participation in Shared Construction apartment buildings and other real estate objects and on amendments to some legislative acts of the Russian Federation", taking into account the clarifications set forth in the decisions of the Plenum of the Supreme Arbitration Court of the Russian Federation of July 30, 2013 N "On Certain Issues Arising in the Application of Part One of the Tax Code of the Russian Federation by Arbitration Courts" and of May 30, 2014 N "On Certain Issues arising from arbitration courts when considering cases related to the collection of value added tax", the courts concluded that the transfer of objects shared construction is not subject to VAT and the company does not have the right to apply the disputed tax deduction.

Cassation ruling of the Judicial Collegium for Administrative Cases of the Supreme Court of the Russian Federation dated May 15, 2018 N 4-KG18-6

By the decision of the Interdistrict Inspectorate of the Federal tax service No. 2 in the Moscow Region dated March 15, 2016 No. 11-09Р/10199, left unchanged by the decision of the Office of the Federal Tax Service for the Moscow Region No. 07-12/38463 dated June 10, 2016, for non-payment by the taxpayer of the amount of tax (fee) as a result of understatement tax base Mikhailenko V.I. brought to responsibility for committing a tax offense under paragraph 1 of Article of the Tax Code of the Russian Federation in the form of a fine in the amount of 215,767.92 rubles, he was charged a tax arrears in the amount of 10,788,396 rubles. and 798,071.59 rubles. penalties (hereinafter referred to as the Decision of the tax authority), while by virtue of the articles and the Tax Code of the Russian Federation, the tax authority applied mitigating circumstances, as a result of which the fine was reduced by 10 times.

Determination of the Constitutional Court of the Russian Federation of June 28, 2018 N 1637-O

Such circumstances are established by the court or tax authority considering the case and are taken into account when applying tax sanctions (paragraph 4 of Article of the Tax Code of the Russian Federation). If there is at least one mitigating circumstance, the amount of the fine shall be reduced by at least two times in comparison with the amount established by the relevant article of the Tax Code of the Russian Federation (Item 3 of Article 114).

Determination of the Supreme Court of the Russian Federation of August 15, 2018 N 305-KG18-11273 in case N A40-113319 / 2017

At the same time, believing that it is possible to apply mitigating circumstances to penalties provided for in Articles of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code), the company applied to the arbitration court with this application.

Refusing to satisfy the stated claims in the contested part, the courts, guided by articles , , , , of the Tax Code, taking into account the legal position set out in the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 N "On some issues arising when the arbitration courts apply part one of the Tax Code of the Russian Federation", came to the conclusion that there were no grounds for reducing the accrued penalties on the decisions of the tax authority.

Ruling of the Supreme Court of the Russian Federation of September 27, 2018 N 309-KG18-14318 in case N A50-27323/2017

As seen from the judicial acts, by the contested decisions, the company was held liable for committing tax offenses provided for in Article 440-P, taking into account the explanations contained in the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 N "On Some Issues Arising in the Application by Arbitration Courts part one of the Tax Code of the Russian Federation", the courts came to the conclusion that there were no grounds for declaring illegal the contested decisions of the tax authorities.

Ruling of the Supreme Court of the Russian Federation of October 31, 2018 N 305-KG18-17276 in case N A40-171200/2017

In the cassation appeal, the taxpayer raises the issue of canceling the judicial acts adopted in the case regarding the refusal to reduce the amount of the fine, referring to a significant violation by the courts of the norms of an article of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code).

Ruling of the Supreme Court of the Russian Federation of October 31, 2018 N 305-KG18-20510 in case N A40-181740/2017

In the cassation appeal, the taxpayer raises the issue of canceling the judicial acts adopted in the case regarding the refusal to reduce the amount of the fine, referring to a significant violation by the courts of the provisions of an article of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code).

According to paragraph 1 of Part 7 of Article 291.6 of the Arbitration Procedure Code of the Russian Federation, based on the results of studying the cassation complaint, presentation, the judge of the Supreme Court of the Russian Federation issues a ruling on the refusal to transfer the cassation complaint, presentation for consideration in a judicial session of the Judicial Collegium of the Supreme Court of the Russian Federation, if set forth in the cassation complaint, presentation, the arguments do not confirm significant violations of substantive law and (or) procedural law that influenced the outcome of the case, and are not sufficient grounds for revising judicial acts in cassation and (or) for resolving the issue of awarding compensation for violation of the right to legal proceedings within a reasonable time, as well as if these arguments are not confirmed in the case file.

In the article, the author, taking into account the current law enforcement practice considers what circumstances may be taken into account by the tax authority or the court when applying tax sanctions as mitigating tax liability.

Circumstances mitigating tax liability are listed in paragraph 1 of Art. 112 of the Tax Code of the Russian Federation. In contrast to the grounds specified in paragraph 1 of Art. 111 of the Tax Code of the Russian Federation (which exclude tax liability), they do not completely exempt from tax liability, but only reduce the amount of the imposed fine.

Paragraph 3 of Art. 114 of the Tax Code of the Russian Federation provides for the possibility of reducing the amount of fines imposed on the basis of the Tax Code of the Russian Federation for committing tax offenses, if mitigating circumstances are established. So, in the presence of at least one mitigating circumstance, the amount of the fine is subject to a reduction of at least two times compared to the amount determined by the relevant article of Ch. 16 of the Tax Code of the Russian Federation for committing a tax offense. Note that the circumstances mitigating liability are established by the court or the tax authority and are taken into account by it when imposing sanctions for tax offenses (clause 4, article 112 of the Tax Code of the Russian Federation).

How can the fine be reduced?

The Plenum of the Armed Forces of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation in a joint resolution dated 11.06.1999 No. 41/9 (hereinafter referred to as Resolution No. 41/9) noted that since in paragraph 3 of Art. 114 of the Tax Code of the Russian Federation establishes only the minimum limit for reducing the tax sanction, the court, based on the results of an assessment of the relevant circumstances (for example, the nature of the offense committed, the number of mitigating circumstances, the identity of the taxpayer, his financial situation), has the right to reduce the amount of the penalty by more than two times.

Thus, the amount of the fine imposed for the commission of a tax offense, if the court establishes at least one mitigating circumstance, can be reduced in the range from 50 to 100% of the size of the tax sanction. However, it should not be zero. The fact is that the appointment by the court of a fine of 0 rubles. 00 kop. in fact, it will be the release of the person brought to tax liability from the application of a tax sanction.

Judicial practice shows that the courts actively use this right and, in the presence of established extenuating circumstances, reduce the tax liability of taxpayers by several times.

Arbitrage practice

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The Federal Antimonopoly Service of the Moscow District, in Resolution No. КА-А40/8428-11 dated 04.08.2011, supported the position of the lower courts, which partially satisfied the organization's claim to the tax authority to invalidate the decision to hold accountable for committing a tax offense in the form of a fine of more than 1 million rub. and reduced the specified amount to 100 rubles. Satisfying the stated requirements in terms of reducing the amount of the fine, the courts proceeded from the existence of circumstances mitigating the applicant's liability for the alleged offense.

FAS of the Moscow District, guided by the provisions of par. 2 para. 19 of Decree no. 41/9, dismissed the arguments of the complaint about the excessive reduction in the amount of the fine.

Arbitrage practice

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According to the decision of the Federal Antimonopoly Service of the Central District dated March 28, 2012 in case No. А09-5167/2011, resolving the dispute about the amount of the fine to be recovered from the taxpayer under Art. 119 and 126 of the Tax Code of the Russian Federation, lower courts, applying the provisions of Art. 112 and 114 of the Tax Code of the Russian Federation, reduced the amount of the fine under the above articles, pointing to the existence of mitigating circumstances for the taxpayer. In particular, the fact that the organization economic activity in the 2nd quarter of 2010 she did not conduct, had no income, partially voluntarily paid penalties, the offense did not entail harmful consequences for the budget.

Moreover, according to the tax authority, the minimum amount of the sanction established by Art. 119 of the Tax Code of the Russian Federation (1000 rubles), cannot be reduced due to the presence of certain art. 112 of the Tax Code of the Russian Federation of mitigating circumstances, since reducing the fine below the lower limit is unlawful. This position is consistent with the letter of the Federal Tax Service of Russia dated November 26, 2010 No. ShS-37-7 / [email protected]

However, according to the FAS of the Central District, the link tax office to the specified letter is untenable, since the tax legislation does not contain a ban on reducing the fixed minimum size fine.

Proportionality of the fine

The tax authorities, when deciding on bringing to tax liability in the event that, during the audit, the circumstances of the commission of a tax offense that can be regarded as mitigating are established, are obliged on the basis of paragraph 3 of Art. 101 of the Tax Code of the Russian Federation to reflect them in the decision. However, the fact of non-reflection is not an obstacle to establishing such circumstances by the court on its own.

In addition, from Art. 112 of the Tax Code of the Russian Federation it follows that the court is obliged, when considering the issue of holding a person liable, to establish the presence or absence of such circumstances.

As follows from the decision of the Constitutional Court of the Russian Federation of July 15, 1999 No. 11-P, sanctions of a punitive nature, based on general principles rights must meet the requirements of fairness and proportionality arising from the Constitution of the Russian Federation.

The principle of proportionality, expressing the requirements of justice, involves the establishment of public liability only for the guilty act and its differentiation depending on the severity of the deed, the size and nature of the damage caused, the degree of guilt of the offender and other significant circumstances that determine individualization in the application of the penalty. These principles of bringing to responsibility equally apply to individuals and legal entities.

Arbitrage practice

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The Federal Antimonopoly Service of the North-Western District, in its decision dated March 5, 2012 in case No. A66-5375 / 2011, adds that the courts of first and appeal instances are vested with the right to establish and assess these circumstances, including the presence (absence) of mitigating or aggravating liability.

open list

What circumstances can mitigate liability for committing a tax offense? In accordance with paragraph 1 of Art. 112 of the Tax Code of the Russian Federation they are recognized:

1. committing an offense as a result of a combination of difficult personal or family circumstances;
2. commission of an offense under the influence of threat or coercion or due to material, service or other dependence;
3. the difficult financial situation of an individual held liable for committing a tax offense;
4. other circumstances that may be recognized by a court or tax authority as mitigating liability.

Under the circumstances of the case considered by the Presidium of the Supreme Arbitration Court of the Russian Federation in Resolution No. 3299/10 dated October 12, 2010, the institution, challenging the legitimacy of the decision to bring it to tax liability, did not file a petition for a further reduction in the fine, but drew the attention of the court to the actual circumstances (missing the deadline submission of a declaration for one day) and the reason for the offense (computer network failure). In addition, as can be seen from the appeal of the institution to a higher tax authority (with a request to reduce the size of the sanction), it referred to the fact that the payment of such a fine amount would entail a significant reduction in funds allocated for research and development financed from the budget.

In such a situation, the Presidium of the Supreme Arbitration Court of the Russian Federation, noting that the list of mitigating circumstances given in Art. 112 of the Tax Code of the Russian Federation, is not exhaustive, and that the court has the right to recognize other circumstances not specified in subpara. 1, 2, 2.1 Art. 112 of the Tax Code of the Russian Federation, as a mitigating responsibility, came to the conclusion that the case should be sent to the court of first instance for a new trial in terms of determining the amount of the sanction to be recovered from the institution, taking into account Art. 112 of the Tax Code of the Russian Federation.

Let us examine with examples what circumstances the courts recognize as mitigating the liability of taxpayers.

Arbitrage practice

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The Federal Antimonopoly Service of the Moscow District, in its decision No. КА-А40/8428-11 dated 04.08.2011, noted that, having evaluated and examined all the evidence presented in the case file, the lower courts made the correct conclusion about the presence of the following mitigating circumstances for the applicant:

• bringing to tax liability for the first time for the entire period of the company's activities;
• lack of direct intent in committing an offense;
• the disproportionate amount of the imposed fine to the consequences of the tax offense, which is confirmed by the fact that the amount of the tax sanction is about 50% of the amount of tax calculated for payment according to the declaration;
• the absence of adverse economic consequences for the budget, since the payment of the tax calculated in the tax return was made in accordance with paragraph 3 of Art. 204 of the Tax Code of the Russian Federation the terms in full;
• the absence of significant and irreversible harm to the interests of the state.

Arbitrage practice

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In the aforementioned resolution of the Federal Antimonopoly Service of the Central District dated March 28, 2012 in case No. А09-5167/2011, the following circumstances were recognized as mitigating tax liability:

• lack of economic activity and income;
• partial voluntary payment of penalties;
• the absence of harmful consequences of the offense for the budget.

Arbitrage practice

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The Third Arbitration Court of Appeal, in its decision dated December 29, 2011 in case No. A74-2935 / 2011 (it was left unchanged by the decision of the Federal Antimonopoly Service of the East Siberian District dated March 20, 2012 in the same case) supported the position of the court of first instance, which considered the delay in the submission of the tax declaration for one day and recognized this circumstance as mitigating the responsibility of the taxpayer, in connection with which he reduced the amount of the fine by half - to 500 rubles. Similar conclusions are contained in the decision of the Fourteenth Arbitration Court of Appeal dated February 16, 2012 No. А05-11315/2011.

Arbitrage practice

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The Seventh Arbitration Court of Appeal, in its decision of October 25, 2011 No. 07AP-8142/11, having examined and assessed the nature and circumstances of the offense committed by the enterprise, given the great socio-economic significance of the enterprise, the focus of activities on ensuring social functions- the provision of services in the field of passenger transportation by land transport, the implementation of a municipal (state) order for the implementation of public passenger transportation (including the poor and the middle strata of the population), the organizational and legal form of the enterprise is a municipal state-owned enterprise, and also taking into account the heavy financial position the applicant, which is confirmed balance sheet and profit and loss account, came to the conclusion that it is possible to reduce the amount of penalties by 100 times, which meets the requirements of fairness and proportionality of punishment.

Arbitrage practice

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The Eighteenth Arbitration Court of Appeal, in its ruling of January 25, 2012 No. 18AP-13252/2011, drew attention to the fact that the right to establish the existence of mitigating circumstances, as well as to reduce the amount of the fine, was granted both to the tax authority in the proceedings on tax offense, and the court when considering the application, and the reduction of the amount of liability by the inspection does not exclude the right of the court to also apply extenuating circumstances. Having examined and assessed the nature and circumstances of the offense committed by the organization, namely: it was committed for the first time, the applicant has no intent, the taxpayer is not legally aware and is in a difficult financial situation, the court came to a reasonable and objective conclusion about the possibility of reducing the amount of penalties.

Arbitrage practice

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In Resolution No. 18AP-8904/2011 dated September 26, 2011, the Eighteenth Arbitration Court of Appeal reduced the amount of penalties to 5,000 rubles. based on the fact that the taxpayer committed an offense for the first time, admitted guilt and paid the amount of the debt, as well as due to the difficult financial situation of the organization and its debt obligations to third parties.

Thus the last arbitrage practice shows that, for example, the following circumstances are recognized as mitigating:

1. The absence of adverse economic consequences of the offense and the material damage caused to the state.
2. Lack of intent to commit a tax offense.
3. Insignificant nature of the offense, payment of tax and the amount of the fine.
4. Organizational and legal form of the taxpayer, its financing from the budget.
5. Insignificance of the delay allowed.
6. Committing an offense for the first time.
7. The disproportion of the sanction to the consequences of the offense committed, the voluntary payment of tax to the budget.
8. Lack of sufficient Money for the payment of taxes and tax sanctions, lack of profit, the presence of debts to counterparties, the presence of wage arrears.
9. The difficult financial situation of the taxpayer, the presence of debt obligations to third parties.
10. Errors, failure in the computer network.

At the same time, it is worth noting that in each case, the court or the tax authority independently decides on the legality of mitigating liability based on specific circumstances.