of March 26, 2015 No. 1
About practice of application by courts of the legislation on cases on evasion from payment of the amounts of taxes, charges (article 243 UK)
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 evasion from payment of the amounts of taxes, charges, the Plenum of the Supreme Court of the Republic of Belarus decides:
1. Draw the attention of courts that evasion from payment of the amounts of taxes, 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 evasion from payment of the amounts of taxes, charges made intentionally by the methods specified in dispositions of part 1 of article 243 UK, and the entailed damnification in large (part 1 of article 243 UK) or especially large (part 2 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 amounts, 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 large or especially large, it is necessary to be guided by the criteria specified in the note to this Article.
If evasion from payment of the amounts of taxes, 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 the amounts of several types of tax, charges the extent of damage is determined by addition of all outstanding amounts of taxes, charges.
5. In case of evasion from payment of the amounts of taxes, charges which under the law belong to customs payments responsibility comes under article 231 UK.
The entering of obviously false data into accounting and other documents made with the purpose to evade from payment of the amounts of 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 the amounts of taxes, charges, and also for submission to tax authorities of documents of tax accounting and (or) the reporting are assigned act.
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