of March 26, 2015 No. 1
About practice of application by courts of the legislation on cases on tax avoidance, charges (article 243 of the Criminal code of the Republic of Belarus)
Having discussed court practice, for the purpose of ensuring the correct and uniform application of the legislation by consideration of criminal cases by courts on tax avoidance, charges, the Plenum of the Supreme Court of the Republic of Belarus decides:
1. Draw the attention of courts that tax avoidance, charges involves not cash receipt in budget system of the Republic of Belarus, complicates financing of the public expenditures and timely accomplishment of social programs.
Consideration by courts in strict accordance with the law of cases on crimes, stipulated in Article 243 Criminal codes of the Republic of Belarus (further - UK), is intended to promote proper execution by payers of the tax liabilities, strengthening of legality in the field of tax legal relationship.
2. Courts should mean that system of taxes, charges and the basic principles of the taxation are enshrined in the Tax code of the Republic of Belarus (further - the Tax Code). The same Code settles the imperious relations connected with establishment, introduction, change, cancellation of taxes, charges and the relations arising in the course of execution of the tax liability.
For determination of content of the concepts "tax legislation of the Republic of Belarus", "tax", "tax base", "tax declaration (calculation)", "tax period", "taxation object", "collection" and other special terms it is necessary to address relevant provisions of the Tax Code.
3. Explain to courts that criminal liability is attracted by the tax avoidance, charges made intentionally by the methods specified in dispositions of part 1 of article 243 UK, and the entailed damnification in considerable (part 1 of article 243 UK), large (part 2 of article 243 UK) or especially large (part 3 of article 243 UK) the size.
At the same time it is necessary to understand intentional not reflection in the documents of tax accounting and (or) the reporting represented to tax authorities, actual data about the taxation objects as concealment of tax base.
Intentional understating of tax base is, as a rule, expressed in entering into documents of tax accounting and (or) the reporting of obviously not untrue information concerning cost, physical or other characteristics of the taxation object, corrected towards reduction of the size of tax charges.
Evasion from submission of the tax declaration (calculation) consists in its intentional non-presentation in tax authority at the scheduled time in the presence of such opportunity.
It is necessary to understand intentional specifying as entering into the tax declaration (calculation) of obviously false data in it any untrue data which influence calculation of payable tax, collection.
4. Courts should consider that the crime, stipulated in Article 243 UK, is recognized ended from the date of the actual failure to pay tax, collection for the corresponding tax period in time established by the tax legislation.
In case of determination of the extent of the caused damage which is the basis for qualification of deeds by the corresponding part of article 243 UK, courts should proceed not from the size of the tax base hidden or underestimated by the guilty person, and from the amount of actually unpaid tax, collection. Assessing damages respectively as considerable, large or especially large, it is necessary to be guided by the criteria specified in the note to this Article.
If tax avoidance, charges continued during several tax periods, the caused damage in terms of money is summed up for all the time of evasion from their payment for all tax periods and legally estimated proceeding from the size of basic size on the date of the expiration of tax payment, charges on the last tax period.
In case of evasion from payment of several types of tax, charges the extent of damage is determined by addition of all unpaid taxes, charges.
5. In case of tax avoidance, charges which under the law belong to the payments levied by customs authorities responsibility comes under article 231 UK.
The entering of obviously false data into accounting and other documents made with the purpose to evade paying taxes, charges is completely covered by article 243 UK and does not require additional qualification under articles 380 or 427 UK.
6. Draw the attention of courts that subjects of crime, responsibility for which is stipulated in Article 243 UK, persons to whom according to the tax legislation of the Republic of Belarus obligations on calculation and payment in the relevant budget of taxes, charges, and also for submission to tax authorities of documents of tax accounting and (or) the reporting are assigned act.
It is necessary to carry physical persons to them – tax residents of the Republic of Belarus, individual entrepreneurs, heads of the organizations payers to which duties signing of documents of tax accounting and (or) the reporting, ensuring complete and timely tax payment, charges, and equally in other persons belongs if they were specially authorized by governing body of the organization payer on making of such actions.
Subjects of crime, responsibility for which is stipulated in Article 243 UK, can be recognized the physical person performing representation in making of the actions regulated by the tax legislation of the Republic of Belarus as according to Articles 24-27 of the Tax Code the payer has the right to participate in such relations through the legal or authorized representative if other is not provided by the Tax code of the Republic of Belarus, and also the physical persons who are tax agents, individual entrepreneurs, including heads and other authorized persons of the legal entity – the tax agent.
7. Person which was actually performing management of the organization payer can be recognized the principal offender, stipulated in Article 243 UK provided that the authorized person of this organization to which duties signing of documents of tax accounting and (or) the reporting belonged was not informed on the participation in tax avoidance, charges.
At the same time the person who organized crime execution, stipulated in Article 243 UK, or inclined to its making of the acting head of the organization payer or other staff of this organization, and equally promoting crime execution by councils, instructions, etc. bears responsibility depending on deeds it as the organizer, the instigator or the helper by the corresponding part of Article 16 and article 243 UK.
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