of December 28, 2006 No. 64
About practice of application by courts of the penal legislation about responsibility for tax offenses
For the purpose of ensuring the correct and uniform application by courts of the penal legislation about responsibility for tax avoidance and charges, non-execution by the tax agent of obligations on their calculation, deduction or transfer in the relevant budget (off-budget fund), and also for concealment by the taxpayer of the money or property necessary for collection of shortage (Article 198, of 199, 199.1, 199.2 Criminal Code of the Russian Federation) the Plenum of the Supreme Court of the Russian Federation decides to make to courts the following explanations:
1. Draw the attention of courts that public danger of tax avoidance and charges, that is intentional failure to carry out of the constitutional obligation of everyone to pay legally established taxes and fees consists in not cash receipt in the budget system of the Russian Federation.
The tax is understood as the obligatory, individually non-paid payment levied from the organizations and physical persons in the form of alienation of belonging to them on the property right, economic maintaining or operational management of money for the purpose of financial provision of activities of the state and (or) municipalities (Item 1 of article 8 of the Tax Code of the Russian Federation - further the Tax Code of the Russian Federation).
Collection (Item 2 of article 8 Tax Code of the Russian Federation) is understood as the compulsory contribution established by the tax legislation levied from the organizations and physical persons which payment is one of making conditions concerning payers of charges by state bodies, local government bodies, other authorized bodies and officials of legally significant actions, including provision of certain rights or issue of permissions (licenses).
In the Russian Federation the following types of tax and charges are established: federal taxes and charges, taxes of subjects of the Russian Federation (regional taxes) and local taxes (Articles 12, 13, 14 and 15 Tax Code of the Russian Federation), and also special tax regimes (article 18 Tax Code of the Russian Federation). At the same time responsibility under article 198 Criminal Code of the Russian Federation or under article 199 Criminal Code of the Russian Federation comes in case of evasion from payment of both the federal taxes and charges, and taxes of subjects of the Russian Federation and the local taxes.
2. According to Item 5 of article 3 Tax Code of the Russian Federation to anybody the obligation cannot be assigned to pay the taxes and fees, and also other fees and payments having the signs of taxes or charges established by the Tax Code of the Russian Federation which are not provided by it, or established procedure than is determined by this Code. Proceeding from it article 198-199.2 Criminal Code of the Russian Federation provide criminal liability concerning taxes and fees which payment is provided by Articles 13, of 14, 15 both 18 Tax Code of the Russian Federation and the corresponding Chapters of part two of the Tax Code of the Russian Federation. At the same time it must be kept in mind that according to Item 7 of article 12 Tax Code of the Russian Federation special tax regimes which can provide the federal taxes which are not specified in article 13 Tax Code of the Russian Federation are set.
3. As tax avoidance and (or) charges, responsibility for which is provided by articles 198 and 199 Criminal Code of the Russian Federation, it is necessary to understand the intentional acts directed to their failure to pay in large or especially large size and which entailed complete or partial not receipt of the corresponding taxes and fees in the budget system of the Russian Federation.
Can be methods of tax avoidance and (or) charges as action in the form of intentional inclusion in the tax declaration or other documents which idea in accordance with the legislation of the Russian Federation of taxes and fees is obligatory, obviously false data, and the failure to act which is expressed in intentional non-presentation of the tax declaration or other specified documents.
That according to provisions of the tax legislation the term of submission of the tax declaration and payment due dates of tax (collection) can not match the moment of the termination of crime, stipulated in Article 198 or article 199 Criminal Code of the Russian Federation, it is necessary to consider the actual failure to pay taxes (charges) in time, established by the tax legislation.
4. The tax declaration is written application of the taxpayer about the gained income and the made expenses, sources of the income, tax benefits and the estimated tax amount, and also about other data connected with calculation and the tax discharge.
The tax declaration is submitted each taxpayer on each tax which is subject to payment by this taxpayer if other is not stipulated by the legislation about taxes and fees, in the established form, according to the procedure and in the terms established by this legislation (Items 2, of the 6 and 7 article 80 Tax Code of the Russian Federation).
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