P 3 of Article 111 of the Tax Code of the Russian Federation.
How often do we, having tried our strengths in different forms, ask ourselves thoughts, and why cross stitching or felting from our favorite hobby cannot turn into a profitable business. After all, any creator wants recognition, even the smallest one. And, of course, which of the creators do not want to receive money for their labors ?!
Psychologists argue that unrealized creativity is the most common cause of prolonged depression. Because of unfulfilled and unnecessary people despair much more often than because of unrequited love. The myth that work and what you love is a different thing has been dispelled a long time ago. Therefore, in this article we will only reveal some secrets, following which you can find strength, desire and opportunities to earn on your work.
If you have no problems with muse - it comes to you with an enviable regularity, and you do not suffer from avarice of imagination, then these will suit you 7 tips. If the idea of \u200b\u200bmaking big money visits you much more often than creative ventures, then you should, first of all, develop creative abilities or take special care to implement paragraph number 1. And here he is.
1. Decide
Numerous Julia Caesars are common. Today he is a photographer, tomorrow a fashion designer, the day after tomorrow he decides to write another fantastic novel about how uninvited guests of the Universe penetrated the Earth and now roam the streets, disguising themselves as flower sellers. The first rule of potential development is to precisely determine the sphere of application of creative potential. Or at least direct your energy to related areas.
2. To study constantly
Painstaking and long work lies behind the airy halo of any creative process. In order to be an outstanding musician, it is not enough to know musical notation, you still need to be able to work with sound, compose poetry and melody, and solve technical and organizational problems. Only a true professional in his field, who is not afraid to constantly learn and improve his skills, can climb to the top of Olympus.
3. Be able to file yourself
If you are not a loafer, you are a happy owner of some kind of talent, and you know for sure which creative direction you want to move on to, then this is still not enough to create a successful career. Further, the ability to properly submit oneself and one's own abilities becomes an important point in climbing the career ladder. Social networks, blogs, forums, special communities, and even personal sites are all low-budget and very effective ways to express yourself and advertise the fruits of your creativity.
4. The correct price
And finally, everyone knows about you, you work a lot and successfully, and there is a demand for your services. The time has come to set the price for hand made. Everything needs to be carefully thought out. Set the price too low - future potential buyers will think that your product is not of great value, and you only want to sell it as soon as possible and refuse to buy it. Analyze the prices of typical goods and services, evaluate your chances, conduct a survey among friends and acquaintances on how much they would agree to pay for your creations. , because this is not only a very pleasant gift, but also a great marketing move, advertising for you.
5. Use any chance
Sometimes life itself gives us a signal to do what we love, and for money. One of my friends was fond of fashion today scrapbooking . She made out albums and handmade cards to all her friends for the holidays. At the next holiday, the anniversary of the school friend, she also presented her with her handmade album. In addition to the birthday girl herself, this gift captivated another guest who turned out to be the owner of a large gift store. He invited the self-taught needlewoman to sell his work in his store. A year later, such a pleasant side job turned into a matter of her life. And now she is a successful designer and graphic designer.
6. Creativity for money is work
Be prepared that a hobby can even bother you and lose its former charm. You will have to face harsh conditions, where there are customers who require one, and then quite another; where there are tight deadlines and no place for a long search for inspiration. Creative work is exactly the same work as any other, which requires a lot of strength, high working capacity and!
7. Do not despair
If you decide to punch yourself a creative path to wealth, then be prepared for the fact that hundreds and thousands of times you will not succeed. The muse can leave and come, the fruits of labor for a long time have no demand, there will be many strong and worthy competitors, and even the closest people may not share your zeal. But in any situation, do not despair and quit what you started halfway, if you are sure that this is the thing in your life. Go ahead without a doubt!
Almost any. For example, if you like to cook sweets, you can make them to order. If you knit well - create things for sale. Fond of architecture - take guided city tours. Love to read - keep a blog about books or create a paid newsletter.
It’s worth considering if you go to an unloved job every day and cannot devote enough time to your hobbies. The plus is that you don’t need to quit work right away. Start with a part-time job, and if things go well, then quit and work for yourself. In Russia, 20 million people work for themselves, so you will succeed.
Where to start your business
The first thing to do is to think through an idea. To do this, ask yourself the following questions:
- What will I create?
- What is unique about my offer?
- Why am I better than my competitors?
- What benefits will it bring to people?
- Who will be my clients?
For example, you knit woolen cardigans from soft merino wool. They sit perfectly on the figure and do not lose their appearance after washing. In such a cardigan it is comfortable in any weather: it does not prick, maintains its shape and does not look like cardigans from the mass market. Your clients are women aged 18–40 with higher than average earnings. They like quality things, and they are willing to pay for the exclusivity of the goods.
Your offer should cause an emotional response from buyers. Something like: “Wow! So cool! I want it! ”You need to find your niche, which means that your offer should be different from other similar ones and be better in some way so that customers choose you. Lack of consumer demand is the main reason The Top 20 Reasons Startups Fail business failures.
Large companies conduct surveys in focus groups before launching a new product or service. If you like a new product - it is launched, if the reaction is ambiguous - it is being finalized or abandoned. So, if you come up with something new, check the viability of the idea on friends and acquaintances. Just do not spare your feelings and answer honestly. How to do this is well described in Rob Fitzpatrick's book, “Ask Mom. "How to communicate with customers and confirm the correctness of their business idea, if everyone lies around?"
For greater objectivity, create an anonymous Google form with a description of the idea and a feedback field. Send it to your friends, leave it on the forums and in social networks.
How to draw up a business plan
Even if you just want to make homemade marshmallows, a business plan will show how much you can earn and whether it is worth it.
A business plan consists of several parts. In short, it needs to:
- Describe an idea.
- Explore competitors and their advantages. If you can show the difference between yourself and your competitors, you are more likely to attract customers and set a high price.
- Identify the target audience and ways to tell her about your product.
- Draw up a production and financial plan: calculate the cost of goods or services, rental costs, advertising, delivery, taxes and all other costs, monthly profit, profit for the year and payback time. When the costs and the expected profit are visible, you can adjust the numbers: find raw materials cheaper, raise the price, reduce advertising costs, deliver orders yourself.
If you do not know what price to set, use the formula: materials + overhead costs + labor \u003d cost. Cost price × 2 \u003d retail price.
Materials - everything you need to make a thing or provide a service. Overhead costs - delivery, advertising, rent, bank commission, taxes. Labor is how much you charge for work. If you do not spend money on rent or delivery - do not include this in the costs. If you do not need materials - also skip.
Let's take an example on cardigans. In order not to work at a loss, you must calculate all the costs and include them in the price. We start with the materials. One cardigan needs 400 g of yarn (1,000 rubles) and 6 buttons (60 rubles). Packing - 50 rubles. For the work you take 500 rubles. Total: 1,000 + 60 + 50 + 500 \u003d 1,640 x 2 \u003d 3,220. This is the minimum cost of one cardigan. To increase profits, you must either raise the price (take more for work), or cheaper to buy materials.
The Ecwid blog for entrepreneurs has an example of a business plan for the production of healthy sweets.
How to bring an idea to life
1. Create a name and logo. They will be needed to design the site, pages on social networks and printed materials for customers. If nothing comes to mind, you can order a logo from the designer or at first do without it.
2. Invent packaging.Buyers are more pleased to receive an order in a box or in craft paper than in a regular plastic bag. Let this increase the cost of goods by 50 rubles, but the buyer will smile and tell friends about you.
3. Find wholesale suppliers. Perhaps earlier you could buy materials at the nearest supermarket. But if you decide to do business seriously and make a profit, you need to reduce the cost of the product. Wholesale purchases will help.
4. Consider the terms of delivery.How and where will you deliver your goods: in the region, in Russia or abroad? By courier or Russian Post? Will you offer pickup? You can skip the item if you provide services, rather than selling goods.
5. Take photos and come up with a description. The product image is the first thing the buyer pays attention to. Try to keep your photos beautiful, in the same style. If you sell things, photograph them from different angles and show details. If your hobby is creativity, intellectual work or the provision of services, show your portfolio and examples of work.
6. Create an online store. A site is your business card. Here you briefly talk about yourself and show what you are doing. The site does not replace, but complements social networks. It is needed so that potential customers can find all the information in one place, and not leaf through the notes on the wall or in the tape. A site can be created quickly and free of charge using the Ecwid service: register, upload photos, description of goods and services, set up a payment and delivery method. It turns out a beautiful one-page website with a built-in online store, which is convenient to view on both a smartphone and desktop.
How to create an online store
We will tell by the example of Ecwid - everything is simple here. You register and immediately get into the control panel.
To edit the site, go to the page “All sales channels” → “Start site” and click “Edit site”. You will be asked to fill out a page with blocks: “Introduction and cover”, “Name and logo”, “Contacts”, “Reviews”.
Ecwid Online Store Homepage. You can edit all visual elements: photos, size, font and color of the text, or delete unnecessary blocks
Page cover
This is the first thing a person sees when he visits the site. Download a beautiful photo of good quality. It may include your product, team, you yourself, the production process or an inspirational picture (to help you choose a collection of photo stocks with free photos). Photo size should be 1,000 × 667 or larger.
In the introduction, briefly describe what you are doing and why you need to be selected.
The appearance of the showcase can be changed in the "Design" section:
After you have edited the page, set prices and discounts. People like to buy goods at a discount rather than just at a low price. So do not hesitate to indicate the price above, and then reduce it for stocks and coupons.
In the basic tariff, you can load up to 10 goods or services. Enough for a start. Ecwid does not charge a commission on sales, even if you use a free tariff.
If you already have a website or blog, you can integrate the Ecwid online store into them: create a storefront, accept payments, track orders, and make discount coupons. Ecwid is compatible with WordPress, Wix, Tilda sites, uKit and other platforms.If you want to sell on Facebook or VKontakte, you can upload the catalog to pages on these social networks automatically. Customers will be able to place orders without negotiation in personal messages.
1. The circumstances excluding the guilt of a person in the commission of a tax offense shall be recognized:
1) the commission of an act containing signs of a tax offense due to natural disaster or other emergency and insurmountable circumstances (these circumstances are established by the presence of well-known facts, publications in the media and other ways that do not need special means of proof);
2) the commission of an act containing signs of a tax violation by a taxpayer - an individual who, at the time of its commission, was in a condition in which that person could not be aware of his actions or lead them due to a painful condition (these circumstances are proved by the submission of documents to the tax authority which, in terms of meaning, content and date, relate to the tax period in which the tax offense was committed);
3) the fulfillment by the taxpayer (payer of the tax, tax agent) of written explanations on the procedure for calculating, paying tax (tax) or on other issues of application of the legislation on taxes and fees given to him or to an indefinite number of persons by a financial, tax or other authorized public authority (authorized an official of this body) within his competence (the specified circumstances are established if there is an appropriate document of this body, within the meaning and content of alogovym periods in which committed a tax violation regardless of the date of publication of this document), and (or) execution of the taxpayer (the payer of gathering or tax agent) the reasoned opinion of the tax authority, directed him in the course of fiscal monitoring.
The provision of this subparagraph does not apply if the written explanations, the motivated opinion of the tax authority are based on incomplete or inaccurate information provided by the taxpayer (tax payer, tax agent);
4) other circumstances that may be recognized by the court or the tax authority considering the case, excluding the guilt of a person in the commission of a tax offense.
2. In the presence of the circumstances referred to in paragraph 1 of this article, a person shall not be liable for a tax offense.
Commentary on Article 111 of the Tax Code
The commented article establishes a circle of circumstances that exclude the guilt of a person in the commission of a tax offense.
The list of circumstances that exclude a person’s guilt in committing a tax offense is not closed.
The right to establish and evaluate circumstances that exclude a person’s guilt of an offense belongs to the tax authority and the court, which, at its discretion, may recognize as such a circumstance established by it during the proceedings.
For example, among the circumstances directly specified in Article 111 of the Tax Code of the Russian Federation, there is no such circumstance as the taxpayer being at the same time fulfilling a large number of requirements for the submission of documents, each of which contains a lot of documents.
FAS Moscow Region in Decree dated 08.12.2010 N KA-A40 / 14679-10 did not accept the tax authority’s argument that a significant amount of documents requested by the tax authority cannot be qualified by the court as a circumstance exempting it from liability, as the list of circumstances excluding the guilt of a person committing a tax offense, established by Article 111 of the Tax Code, this list is open.
The ambiguities revealed by the tax authority and the court by virtue of paragraph 7 of Article 3 and subparagraph 3 of paragraph 1 of Article 111 of the Tax Code of the Russian Federation should be interpreted in favor of the taxpayer and exclude the guilt of a person in the commission of a tax offense. This position is enshrined in the Decree of the Constitutional Court of the Russian Federation of 09.12.2002 N 377-О.
In judicial practice (in particular, in the Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 07.10.2008 N 6159/08) it is indicated that the application of the above special tax regime on the basis of a notification from the tax authority can be considered as a circumstance that excludes the guilt of a person in committing a tax offense. Moreover, penalties accrued for late payment of taxes under the general taxation regime are payable (Definition of the Supreme Arbitration Court of the Russian Federation dated 29.01.2009 No. ВАС-17613/08).
The Ministry of Finance of Russia in a letter dated May 31, 2011 N 03-11-06 / 2/84 drew attention to these positions.
The point of view of the tax authority that believes that the provision of subparagraph 2 of paragraph 1 of Article 111 of the Tax Code of the Russian Federation cannot be applied to an individual entrepreneur cannot be recognized as lawful, since only ordinary individuals are specified in this norm. Judicial practice indicates the admissibility of applying subparagraph 2 of paragraph 1 of Article 111 of the Tax Code to individual entrepreneurs.
For example, in the Decision of the Federal Antimonopoly Service of the East Siberian District dated 09.08.2007 N A33-18932 / 06-Ф02-4995 / 07, the court, evaluating the documents submitted by the individual entrepreneur, considered that the evidence does not indicate the impossibility of the entrepreneur to fulfill the obligation to submit a tax inspection declarations on a single tax on imputed income within the period established by the Tax Code of the Russian Federation. The medical report presented in the case file does not indicate the impossibility of the entrepreneur to manage his actions, as the illness of the entrepreneur is associated with physical ailment, but does not exclude the possibility of sending a controversial tax return by mail or promptly instructing the entrepreneur’s representative to take actions to submit a declaration. In addition, a medical report establishes the presence of a disease in a period that is not relevant to the controversial. It does not follow from the text of the conclusion that the individual entrepreneur was in inpatient treatment during the period when the tax return was due, creating an obstacle to the fulfillment of the duty incumbent on the applicant. Other evidence confirming the circumstances that exclude liability for the commission of a tax offense, the entrepreneur did not present in the case file.
The provisions of subparagraph 3 of paragraph 1 of Article 111 of the Tax Code of the Russian Federation apply to written explanations that are addressed to the taxpayer or to an indefinite number of persons, come from a financial, tax or other authorized body of state power (authorized official) within its competence, based on full and reliable information provided by the taxpayer, in the meaning and content of the tax (reporting) periods for which arrears were formed.
For example, as the Federal Antimonopoly Service of the Ural District indicated in Decree dated 02.08.2012 No. F09-6860 / 12, the response of the head of the inspectorate on the taxation procedure of a transaction with Finance and Justice to a company’s request cannot be recognized as such a written explanation of the tax authority, since is general in nature and is given regardless of specific factual circumstances.
The contradictory position of the Ministry of Finance of Russia on any issue, its change to the opposite point of view, is recognized as evidence of the presence of fatal doubts, contradictions and ambiguities, which, by virtue of paragraph 7 of Article 3 of the Tax Code of the Russian Federation, should be interpreted in favor of the taxpayer.
This conclusion was reached by the Federal Antimonopoly Service of the Ural District in the Decree of 08.10.2012 N Ф09-9584 / 12 N А71-20019 / 2011.
It should be noted that the explanations of other authorities are not grounds for excluding the fault of taxpayers.
The Federal Antimonopoly Service of the Far Eastern District, in Decree of November 28, 2012 No. F03-5268 / 2012, rejected the argument of the private security department on the written explanation of the Department of State Protection of Property of the Ministry of Internal Affairs of Russia, which, in the opinion of the state institution, in accordance with subparagraph 3 of paragraph 1 of article 111 of the Tax Code circumstance, excluding the guilt of a person in committing a tax offense. By virtue of the aforementioned norm, the fulfillment by the taxpayer (payer of tax, tax agent) of written explanations on the procedure for calculating, paying tax (tax) or on other issues of application of the legislation on taxes and fees given to him or to an indefinite number of persons by a financial, tax or other authorized public authority (by an authorized official of this body), within its competence, shall be recognized as a circumstance excluding the guilt of a person in the commission of a tax offense.
Given that the Department of State Protection of Property of the Ministry of Internal Affairs of Russia is not a public authority authorized to provide written explanations on the application of legislation on taxes and fees, the provisions of Article 111 of the Tax Code of the Russian Federation, in the opinion of the court, are not subject to application.
Moreover, in judicial practice, even following the position of the authorities in the field of taxes and fees of the authorities is sometimes not recognized as the basis for exemption from liability.
The Federal Antimonopoly Service of the Central District, in Decree of November 26, 2012 No. A48-1190 / 2012, rejected the organization’s reference to the clarification of the Ministry of Finance of Russia of September 23, 2008 No. 03-07-10 / 09, as a basis for the application of the provisions of Article 111 of the Tax Code, the letter is a private answer to the question and does not contain general guidelines that are mandatory for use by subjects of tax relations.
Consultations and comments of lawyers under Article 111 of the Tax Code of the Russian Federation
If you still have questions under Article 111 of the Tax Code of the Russian Federation and you want to be sure of the relevance of the information provided, you can consult the lawyers of our site.
You can ask a question by phone or on the website. Initial consultations are free of charge from 9:00 to 21:00 daily, Moscow time. Questions received from 21:00 to 9:00 will be processed the next day.
Prior to the entry into force of January 1, 2007, sub. 4 p. 1 art. 111 of the Tax Code of the Russian Federation, in practice, there was a problem of the ratio of sub. 2 tbsp. 109 of the Tax Code of the Russian Federation and Art. 111 of the Tax Code of the Russian Federation.
So, according to some authors, the circumstances of the absence of guilt (i.e., the circumstances referred to in subparagraph 2 of article 109 of the Tax Code of the Russian Federation) are completely listed by the legislator in article 111 of the Tax Code of the Russian Federation. The list of circumstances that exclude the guilt of a person in the commission of a tax offense is closed and not subject to extensive interpretation. If the case does not contain the circumstances referred to in Article. 111 of the Tax Code, the guilt of a person is always present in one form or another. In other words, sub. 2 tbsp. 109 of the Tax Code applies only when one of the circumstances of art. 111 of the Tax Code of the Russian Federation.
Unfortunately, the above position was backed up by some jurisprudence. According to some courts, provided for in paragraph 2 of Art. 111 of the Tax Code of the Russian Federation, the list of grounds in the presence of which wine is deemed absent is limited. In this connection, the absence of guilt as a basis excluding the person being brought to tax liability can take place only in the presence of those listed in paragraph 2 of Art. 111 of the Tax Code of the Russian Federation.
So, in one of the cases, the court found that the entrepreneur, due to illness, did not timely file an application with the tax authority for tax registration. The trial court on the basis of paragraph 2 of Art. 109 of the Tax Code of the Russian Federation refused the tax authority to recover tax sanctions. However, as the court of cassation indicated, the businessman’s argument that he was not guilty of a tax offense was not justified in this case, because he did not submit to the court any evidence of the existence of circumstances that exclude his guilt of a tax offense, an exhaustive list of which is given in Art. 111 Tax Code (Resolution of the Federal Antimonopoly Service of the North-West Federal District of 16.11.1999 N A56-16008 / 99).
In another case, the court indicated that Article 111 of the Tax Code of the Russian Federation, circumstances are established that absolutely exclude the guilt of a person in committing a tax offense, in the presence of which a person by virtue of clause 2 of paragraph 1 of Art. 109 cannot be held liable for a tax offense. The seizure by the tax police of the accounting documentation that impedes the timely submission of tax returns does not apply to circumstances that unconditionally exclude the guilt of the person, but is a mitigating circumstance (Resolution of the FAS UO of 18.09.2000 No. F09-1057 / 2000-AK).
Or according to another position: indeed, the lack of guilt of a person in the commission of a tax offense is a circumstance that excludes tax liability (Article 109 para. 2 of the Tax Code of the Russian Federation). However, the requirement of this norm must be applied subject to Art. 111 of the Tax Code of the Russian Federation, which contains an exhaustive list of circumstances that exclude guilt and provide grounds for exemption of persons who have committed tax offenses from liability (Resolution of the FAS UO of 17.02.2000 No. F09-68 / 00-AK).
Also, when considering a dispute on holding the company liable for the unlawful application of the property tax exemption, the court did not admit as a circumstance excluding the failure to notify the inspectorate of the unlawful application of the exemption when conducting a desk audit of payments for advance payments for the said tax based on the results of reporting periods. At the same time, the court indicated that this circumstance is not provided for in Art. 111 of the Tax Code of the Russian Federation (Resolution of the FAS VVO of March 29, 2006 No. A79-11152 / 2005).
However, without questioning the merits of the above judicial acts issued on the basis of the specific circumstances of the case, we believe that the courts' approach to the issue of the relationship of sub. 2 tbsp. 109 of the Tax Code of the Russian Federation and Art. 111 of the Tax Code is erroneous.
In our opinion, in Art. 111 of the Tax Code of the Russian Federation lists cases where wine is recognized as absent in an unconditional and indisputable manner. It is enough to establish one of the factors that are listed in Art. 111 of the Tax Code of the Russian Federation, and the conclusion about the absence of guilt of a person is a foregone conclusion. However, the provisions of sub. 2 tbsp. 109 of the Tax Code of the Russian Federation and Art. 111 of the Tax Code do not exclude that in practice a situation may arise which, formally without falling under the list of circumstances specified in Art. 111 of the Tax Code, however, will indicate the absence of guilt. That is, if there are others not listed in Art. 111 of the Tax Code of the Russian Federation circumstances, the court or the tax authority may establish the absence of guilt based on many other factors directly relevant to the case, and without reference to Art. 111 of the Tax Code apply subp. 2 tbsp. 109 of the Tax Code.
Most experts adhere to the same position. In particular, as indicated by Yu.A. Krokhin, the list of circumstances that exclude a person’s guilt in committing a tax offense is not exhaustive, therefore, the tax authority or the court in the course of the proceedings has the right to exclude the person’s guilt and for other reasons proved in accordance with the rules of the tax, civil or arbitration process. * ( 267)
We agree on this with A.V. Demin, who, in support of the above conclusion, indicates that tax relations are too diverse, and therefore exhaustively enumerate under the three paragraphs of one article all the circumstances that exclude a person’s guilt in committing a tax offense, is extremely impractical, and hardly possible. * (268 )
Moreover, it seems that, given the diversity of tax relations, the legislator did not aim to exhaustively provide for and list in Art. 111 of the Tax Code of the Russian Federation, all cases excluding the guilt of a person committing a tax offense.
In addition, as judicial practice shows, the courts very widely apply the sub. 2 tbsp. 109 of the Tax Code of the Russian Federation directly, without any correlation with Art. 111 of the Tax Code of the Russian Federation.
Moreover, the courts in this case indicate that in Art. 111 of the Tax Code of the Russian Federation lists unconditional, but not exhaustive circumstances that exclude the fault of the taxpayer. The presence of guilt of a person in the commission of a tax offense is established depending on the assessment of the subjective side of the composition of the tax offense. Therefore, the requirements of Art. 109 of the Tax Code are common with respect to Art. 111 of the Tax Code of the Russian Federation, the nature and apply regardless of the circumstances specified in the special rule of law (Decisions of the FAS MO of 11.03.2003 N KA-A40 / 794-03, of 13.03.2003 N KA-A41 / 1200-03).
In this regard, the addition by the legislator of paragraph 1 of Art. 111 of the Tax Code of the Russian Federation by subparagraph 4, which provides for the possibility of recognition as a person excluding guilt in a tax offense and other circumstances, in addition to the three above (sub. "B" p. 84 of article 1 of Federal law N 137-ФЗ). Clause 4, Art. 111 of the Tax Code of the Russian Federation came into force on January 1, 2007, and to date, the arbitration practice regarding the application of this provision is only beginning to take shape.
So, for example, the court found that the company, due to the excess in August 2006 of the proceeds from the sale of goods by more than 1 million rubles, was obliged to submit a VAT declaration to the inspection on September 20, 2006. But, having violated this deadline, it submitted a declaration on 10/20/2006, which testifies to the commission by the company of the offense, the responsibility for which is provided for in Art. 119 of the Tax Code.
However, when considering the dispute, the court applied sub. 4 p. 1 art. 111 of the Tax Code of the Russian Federation and refused to recover from the company sanctions under paragraph 1 of Art. 119 of the Tax Code of the Russian Federation. In particular, the court indicated that on September 27, 2006, the head of the IFTS RF N 2 decided to transfer the balance of payments to the budget to the new location of the company Interdistrict IFTS N 1 on September 14, 2006.
On January 18, 2007, the head of the Inspectorate of the Federal Tax Service of the Russian Federation No. 1 decided to accept the balance of payments with the budget of the company as of October 13, 2006.
The list of documents related to the organization’s activities includes tax returns, financial statements and other documents submitted by the taxpayer.
With a cover letter dated October 12, 2006, the IFTS of the Russian Federation No. 2, documents that were received by the Federal Tax Service of the Russian Federation No. 1 on October 13, 2006 were transmitted.
The VAT return of September 19, 2006, submitted by the taxpayer to the IFTS of the Russian Federation No. 2 via telecommunication channels, was received by the IFTS of the Russian Federation No. 1 in hard copy (Decision of the FAS DO of 19.12.2007 No. F03-A04 / 07-2 / 4615) .
In another case, the court applied paragraph 4 of Art. 111 of the Tax Code of the Russian Federation and indicated that the IFTS illegally prosecuted the company for the late submission of a profit tax return at the location of a separate subdivision, since copies of an envelope, a notice and a post office letter confirm the fact of timely sending the said declaration by registered mail with a notice about delivery. The Company cannot be held responsible for the improper performance by the postal service operator of its duties (Resolution of the FAS SZO of 05.03.2008 N A56-A27790 / 2007).
In one of the cases, refusing the tax authority to satisfy the requirements for the collection of a fine under paragraph 1 of Art. 122 of the Tax Code, the court proceeded from the provisions of Article 106, 108 of the Tax Code of the Russian Federation, the lack of fault of the entrepreneur in the loss of documents, as well as from the fact of submission to the tax authority of documents restored by him, confirming the absence of tax offenses (Clause 4 of Article 111 of the Tax Code of the Russian Federation) (Decision of the FAS UO of July 19, 2007 No. F09- 5581/07-C2).
Recognizing unlawful prosecution of an entrepreneur under paragraph 2 of Art. 117 of the Tax Code of the Russian Federation for conducting entrepreneurial activity without registering with a tax authority, the court recognized as a circumstance excluding the liability of the entrepreneur that the entrepreneur in the submitted declarations for the disputed period indicated information about the implementation of retail trade in the store, calculated the UTII for the specified object and paid tax to the budget.
Since the inspectorate at the place of tax registration has not made any comments regarding the entrepreneur's submission of tax returns at the place of trade that does not fall under the jurisdiction of this tax authority, the taxpayer had reason to assume that tax obligations are fulfilled by him in accordance with tax legislation (Resolution of the FAS Central Organ of 22.01 .2008 N A14-2114-2007-106 / 34).
Chapter 8
Mitigating and Aggravating Circumstances
for committing a tax violation (Article 112 of the Tax Code)
Article 112. Circumstances mitigating and aggravating liability for a tax violation.
1. Circumstances mitigating liability for a tax violation shall be recognized:
1) the commission of an offense due to a combination of difficult personal or family circumstances;
2) the commission of an offense under the influence of a threat or coercion or due to material, official and other dependence;
2.1) the difficult financial situation of an individual held liable for a tax offense;
3) other circumstances that may be recognized by the court as extenuating liability.
2. An aggravating circumstance shall be recognized as the commission of a tax violation by a person previously brought to justice for a similar offense.
3. The person from whom the tax sanction is levied shall be considered subjected to this sanction within 12 months from the moment the court or tax authority has entered into legal force.
4. Circumstances mitigating or aggravating liability for the commission of a tax offense shall be established by the court or the tax authority considering the case, and shall be taken into account when applying tax sanctions.
1. Circumstances mitigating tax liability
offenses (Clause 1, Article 112 of the Tax Code of the Russian Federation)
General Provisions
The Law of the Russian Federation "On the Basics of the Tax System of the Russian Federation", which was in force until January 1, 1999, did not provide for the possibility of reducing the established Art. 13 of the Law of Sanctions. In this regard, the legal institution of mitigation of punishment for committing tax offenses was virtually absent and was not applied either by the tax authorities or the courts. As the courts indicated in this case, the possibility of reducing the size of the fine, depending on the degree of guilt of the taxpayer, does not comply with applicable law (Decision of the FAS BBO of 11.23.1998 N A43-2542 / 98-14-5).
Often, as A.V. correctly points out Demin, tax sanctions were overly burdensome, sometimes unfounded in terms of proportionality and humanism. The application of tax liability was actually not punitive and preventive, but a fiscal one, turning into an important source of budget revenues, a powerful tool for enriching the state. The amount of penalties established for violation of tax legislation exceeded all reasonable limits. * (269)
According to the testimony of V.V. Wise, for each ruble of budget revenues one ruble of tax sanctions was accrued. * (270)
That is, tax sanctions were sometimes applied not with the aim of suppressing an offense, but only in order to recover the largest possible amount to the budget. * (271)
That is why the inability of taxpayers and other obligated persons to invoke mitigating circumstances did not comply with the principles of the rule of law, violated the principles of legality, proportionality and individuality of legal liability in the field of taxation, and reduced the effectiveness of judicial protection of citizens and organizations.
In view of the foregoing, the introduction of provisions in the Tax Code of the Russian Federation on the possibility of reducing the amount of tax recovery, taking into account certain circumstances, was a positive step in the development of domestic tax law and the tax system as a whole.
The Constitutional Court of the Russian Federation has repeatedly appealed to the constitutional analysis of the norms of the law on prosecution of tax offenses. The need to comply with the constitutional principle of justice and to prevent unreasonable restriction of rights and freedoms in the field of tax legal relations was mentioned in particular in the Resolution of the Constitutional Court of the Russian Federation of December 17, 1996 N 20-P.
Already after the introduction of the first part of the Tax Code of the Russian Federation, the Constitutional Court of the Russian Federation in its Decree of July 15, 1999 N 11-P formulated a position according to which it is impossible to hold entities liable for tax offenses without taking into account the principle of proportionality. This principle, expressing the requirements of justice, presupposes the establishment of public liability only for a guilty act and its differentiation depending on the gravity of the deed, the size and nature of the damage caused, the degree of guilt of the offender and other significant circumstances that cause individualization in the application of the penalty.
In another Decree of July 20, 2001 N 13-P, the Constitutional Court of the Russian Federation indicated that, within the meaning of Art. 55 (part 3) of the Constitution of the Russian Federation, the introduction of liability for an offense and the establishment of a specific sanction restricting constitutional law, based on general principles of law, must meet the requirements of justice, be proportionate to constitutionally enshrined goals and protected legitimate interests, as well as the nature of the act committed. That is why measures of responsibility for violations of the law should be applied in compliance with the principles of justice of punishment, its individualization and differentiation following from the Constitution of the Russian Federation. In addition, the size of the sanction imposed, regardless of its industry affiliation, should be determined taking into account the nature of the offense committed, the amount of damage caused, the degree of guilt of the offender, his financial situation and other significant circumstances, which means that the law enforcer can reduce its size. Otherwise, a disproportionately large fine can turn from a measure of influence into an instrument to suppress economic independence and initiative, excessive restriction of freedom of enterprise and property rights, which, by virtue of Art. 34 (part 1), 35 (parts 1-3) and 55 (part 3) of the Constitution of the Russian Federation are unacceptable.
Thus, it can be argued that the introduction into the first part of the Tax Code of the Russian Federation of provisions on extenuating and aggravating circumstances is, according to Yu.A. Krokhina, a manifestation of the implementation in tax law of the general principle of individualization of punishment, * (272) the essence of which is to take into account all the essential circumstances of the case when sentencing. * (273)
In general terms, circumstances mitigating legal liability are understood as certain factors, the consideration of which leads to the imposition of a punishment or a penalty that is milder than in the absence of such circumstances. As a rule, a measure of punishment (penalty), taking into account extenuating circumstances, is appointed within the limits of the sanction of the article, the law, but not lower than it. However, in some cases, the law, in the presence of certain circumstances, allows the imposition of a measure of punishment below the lower limit. Mitigating circumstances may relate to various parties to the unlawful act, as well as characterize the person who committed the offense. That is why it seems that extenuating circumstances are beyond the scope of the offense (in particular, tax). To call these circumstances mitigating guilt is not entirely correct, because guilt is only an element of the offense, and the circumstances listed in paragraph 112 of the Tax Code of the Russian Federation or revealed during the consideration of a particular case may relate to the act and to the personality of the offender in the entirety of their characteristics, and not just fault.
As it was indicated in the Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 01.02.2002 N 6106/01, only holding a statement of the fact of an offense without taking into account the identity of the taxpayer and other circumstances seems to be insufficient to hold a person accountable.
It should also be noted that modern Russian arbitration and procedural legislation provides for the principle of a comprehensive and complete investigation by the court of all circumstances of a case, including mitigating and aggravating liability. Therefore, a court decision to hold a taxpayer accountable without assessing these circumstances cannot be recognized as lawful or justified, which, according to sub. 3 p. 1 and p. 2 Art. 287 APC of the Russian Federation entails its cancellation and referral of the case for a new consideration (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 12, 2002 No. 3420/20; Resolution of the Federal Antimonopoly Service of 12.05.2003 No. F03-A73 / 03-2 / 922).
Thus, the legal institution for the application of circumstances mitigating tax liability is a necessary and important means to ensure the principles of legality, individualization, proportionality and reasonableness of the penalty imposed, as well as the principle of stability of conditions for entrepreneurial activity.
1.2. The concept of circumstances mitigating responsibility for committing
tax offenses
The Tax Code does not give its own definition of tax extenuating circumstances, but only in paragraph 1 of Art. 112 of the Tax Code lists them.
In this regard, one should agree with II. Vorontsova, who notes that, like many other norms and institutions of the legislation on taxes and fees related to offenses and liability, the norms of the Tax Code of the Russian Federation on circumstances mitigating and aggravating liability were borrowed from criminal legislation and legislation on administrative offenses. True, the author emphasizes that, unfortunately, borrowing norms on circumstances mitigating liability came down to reproducing in the Tax Code of the Russian Federation certain provisions of the Criminal Code and the Administrative Code of the RSFSR without adapting them to the peculiarities of relations regulated by tax legislation. * (274)
Also E.S. Efremova, based on the definition of extenuating circumstances provided for by criminal law, concludes that "the circumstances in question should, firstly, relate to the wrongful act and (or) the identity of the offender, and secondly, be recognized as mitigating, because they affect the degree of the public danger of the act and (or) the identity of the offender. "* (275)
The author also notes that the public danger of the act and (or) the personality of the offender is their ability to harm public relations. Thus, the criterion for classifying a particular circumstance as mitigating "is its effect on the degree of social danger of the individual and (or) the act in the direction of their reduction." * (276) For example, the commission of a tax offense due to a combination of difficult personal or family circumstances.
Interesting is the position of Efremova E.S. regarding common signs of mitigating circumstances. The author points out that these circumstances should be typical, unconditional and definitely directed.
So, under the typicality of E.S. Efremova implies the prevalence of circumstances, its "characteristic for a more or less wide range of illegal acts." In this connection, such circumstances as, for example, illness of the chief accountant, ignorance of the current legislation cannot be considered mitigating.
A sign of unconditionality means "the existence of a causal relationship between these circumstances and a perfect tax offense." For example, as a budget organization, the entity received less funding from the budget and, as a result, was unable to make the required tax amount.
A certain focus of mitigating circumstances E.S. Efremova means as the absence of a variable nature of such circumstances, that is, one and the same circumstance should not "soften responsibility in one case, and aggravate it in another." From this point of view, according to the author, "he cannot claim to be mitigated by such a thing as the lack of experience of an official of an organization (for example, an accountant)." * (277)
In agreement with the author’s position regarding the principle of a certain orientation, it seems that her conclusion about the content of the principle of typicality is not sufficiently argued (see below on the principle of unconditionality). A kind of "typical atypicality" in the interpretation of the author in some cases may not work. The scope of taxation is quite extensive and directly affects tens of millions of participants in tax relations, and to identify the typical (or vice versa, atypical) of each particular case is a thing that is simply not feasible in practice. It is believed that a lot of things in each specific tax dispute will depend on the circumstances that were present at the time of the commission of a particular tax offense or arose after its commission. There is nothing surprising in the fact that one and the same external circumstance in one litigation can be assessed by the court as a mitigating circumstance, while in the other this same circumstance will not receive the appropriate qualification, because in the specific conditions to be established, it could not be regarded as mitigating. That is why in some cases both the illness of the chief accountant and the lack of knowledge of the law can be recognized as circumstances mitigating responsibility, which, incidentally, is also evidenced by the judicial arbitration practice.
As L.A. correctly points out about this Korotkov, the establishment by the legislator of a differentiated penalty for an offense, as well as the possibility of reducing it, make it possible to impose a penalty, taking into account the nature of the offense, the size of the damage caused, the degree of guilt of the offender, his property situation, other significant circumstances of the case. * (278)
Thus, in our opinion, mitigating circumstances are those conditions (events, situation, factors, actions (inaction) of third parties) that have had a direct or indirect effect on the commitment of a tax offense by a person or become significant in the period after its commission , the presence of which may be the basis for the reduction of the sanction for the commission of a tax offense provided by the norm of the Tax Code of the Russian Federation.
Meanwhile, we can clearly say that mitigating circumstances cannot be used as a basis for reducing the amount of arrears or interest, since the establishment of certain circumstances "mitigating liability" in no way affects the obligation of the taxpayer (tax agent) for the payment of taxes and fees, and, in addition, such a reduction is not provided for by the norms of the Tax Code.
This is also evidenced by the existing judicial practice. So, in one of the cases, the court directly indicated that when considering a claim for a fine, the taxpayer referred to the presence of extenuating circumstances: the incompetence of its employees, as well as the failure by the tax authority to carry out explanatory work on the application of the legislation on taxes and fees (sub. 4 p. 1, article 32 of the Tax Code of the Russian Federation). The court reduced the size of the fine by 10 times, but refused to reduce the size of the penalty, since when charging a penalty for late payment of taxes, extenuating circumstances are not taken into account and the reduction of the size of the penalty is not provided for by tax legislation (Resolution FAS ЗСО dated September 20, 2004 No. Ф04-5606 / 2004 (A75-3753-14)).
In another case, the court also indicated that in accordance with Art. 75 of the Tax Code of the Russian Federation penalties are accrued for late payment of taxes (fees) as a compensation for budget losses, and the legislation does not provide for a reduction in the size of penalties if there are good reasons (Resolution of the FAS SZO dated 15.07.2005 No. A56-43287 / 2004).
1.3. To the question of the presence of a causal relationship
between extenuating circumstances
and tax offense
According to many authors, there should be a causal relationship between mitigating circumstances and a tax offense, that is, these circumstances must precede the time the offense was committed or take place in the same time period.
So, for example, S.D. Shatalov on this occasion points out: “The circumstances cited can be considered mitigating only if they directly determined the commission of the tax offense (there is a causal relationship between the circumstances and the commission of the tax offense) and the perpetrator was not able to avoid illegal actions without real and significant damage to oneself. "* (279)
M.U. holds the same opinion. Evteeva: "... not all circumstances associated with the activities of legal entities and deserving of a positive assessment can be classified as mitigating. They can only be recognized as those that existed at the time of the tax violation and under the influence of which (in whole or in part) it was done. "* (280)
E.S. Efremova, when attributing unconditionality to the obligatory signs of extenuating circumstances, defines it as "the existence of a causal relationship between these circumstances and the commission of a tax offense." * (281)
Judicial practice in some cases holds the same position. So, when considering one of the cases, the court defined mitigating circumstances as circumstances that existed at the time the tax offense was committed, were insurmountable, did not depend on the will of the guilty person and prevented the prevention of the offense or its consequences (Resolution of the Federal Antimonopoly Service of 10.06.2003 No. A09 -11681 / 02-15).
In another case, the court did not admit that the federal budget owed to the enterprise held liable under Art. 123 of the Tax Code of the Russian Federation for withholding income tax on actually paid wages. The court indicated that there was no causal link between the failure to fulfill the duty of the tax agent and the presence of arrears on the part of the federal budget (Decision of the FAS ZCO of 18.12.2000 No. Ф04 / 3225-913 / А45-2000).
When considering the case on bringing to justice, provided for in paragraph 1 of Art. 126 of the Tax Code of the Russian Federation, the court did not accept as extenuating circumstances a large number of employees, for whom it was necessary to provide information on the income paid. The court indicated that the company did not provide documentary evidence of objective reasons that prevented the timely submission of the above information, all the more so as the legislation established an exact deadline for submitting income information (Decision of the Federal Antimonopoly Service of the Western Union of 21.02.01 No. Ф04 / 503-81 / А27-2001).
In another case, the organization was held liable under paragraph 2 of Art. 120 of the Tax Code of the Russian Federation for ignorance of primary documents in the form of 1-NDFL, as well as tax cards for accounting of income and tax on personal income. Taking into account the difficult financial situation of the organization, the court of first instance reduced the size of the tax sanction by more than two hundred times. Repealing the decision of the court, the cassation court came to the conclusion that the actions constituting the objective side of the composition provided for in paragraph 2 of Art. 120 of the Tax Code of the Russian Federation, are not in a causal relationship with the difficult financial situation of the organization (Decision of the FAS ВСО of 26.02.2004 N А19-16135 / 03-24-Ф02-448 / 04-С1).
However, in our opinion, the above unconditionality or causality between extenuating circumstances and a tax violation is not required, since such a sign is not caused by the requirements of the norms of the Tax Code of the Russian Federation.
The same opinion is shared by some experts. So, for example, A.V. Demin believes that the position on the need for a causal relationship between extenuating circumstances and a tax violation unjustifiably limits the ability of courts to recognize certain circumstances as mitigating tax liability. In addition, according to the author, this approach does not allow to take into account the individual and social characteristics of the violator, his personality, as well as behavior that not only precedes the violation, but also follows it. * (282)
As the courts correctly indicate in this case, "the tax inspectorate’s arguments that extenuating circumstances can be taken into account only if they directly caused the commission of a tax offense and the guilty person was not able to avoid illegal actions without real and significant damage to themselves under the circumstances, There are no such restrictions for recognizing circumstances mitigating the responsibility of the Tax Code of the Russian Federation "(Resolution of the FAS SZO of 30.10.2000 No. A05-4520 / 00-244 / 20; Resolution of the FAS of the North-East Administrative District of 19.03.2007 No. A 33-12072 / 06-F02-1271 / 07).
For example, when considering one of the cases, the court recognized the disability of the child of the offender as a mitigating circumstance (Resolution of the FAS PO dated 01.03.2000 No. A55-11987 / 00-23). These circumstances did not lead to the commission of the offense, but for the court they served as a sufficient reason to reduce the sanction. That is, “the basis for classifying a particular circumstance as mitigating the offender’s responsibility is not a causal relationship between the circumstance and the offense, but a direct assessment of these circumstances by the court (Decision of the FAS DO of 17.09.2003 N F03-A51 / 03-2 / 2085).
However, in some cases, the courts take a different position. In particular, when considering a dispute on holding a taxpayer accountable under paragraph 2 of Art. 126 of the Tax Code of the Russian Federation for the refusal to submit the documents requested by the inspection, the court did not recognize the status of a taxpayer as a state institution as a circumstance mitigating liability. At the same time, the court indicated that from the case materials, including the contents of the letter of the institution, which contained the refusal to provide the requested documents, there are no obstacles to the institution's fulfillment of the obligation to timely submit documents due to the fact that the applicant is government agency. Thus, since in the present case no connection has been established between the status of the applicant as a state institution and the offense (refusal to provide documents), when determining the amount of the sanction established by paragraph 2 of Art. 126 of the Tax Code of the Russian Federation, the status of a taxpayer and the nature of its activities cannot be recognized as circumstances mitigating liability (Decision of the FAS ЗСО from 01/31/2007 N Ф04-9164 / 2006 (30201-А70-40)).
In another case, the court did not recognize as mitigating liability under Art. 119 of the Tax Code of the Russian Federation circumstances the difficult financial situation of the director of the enterprise, the presence of his wife and three minor children. At the same time, the court indicated that within the meaning of Article 112, 114 of the Tax Code of the Russian Federation a mitigating tax liability circumstance is in a causal connection with the offense itself, that is, the court, in order to recognize any actual circumstance as mitigating liability, must indicate how it affected the objective or subjective side of the unlawful act.
Since there is no evidence of a causal relationship between the difficult financial situation of the director of the company and the company's violation of tax legislation in the disputed period, the decision of the court of first instance is subject to cancellation, and the case must be sent for a new consideration (Resolution of the FAS ЦО of 21.09.2007 A23-415 / 07A-14-27).
As the same court pointed out when considering another dispute, circumstances mitigating the taxpayer’s liability can be recognized as circumstances that existed at the time the offense was committed, were insurmountable, did not depend on the will of the guilty person, prevented him from preventing the violation itself or its consequences. In addition, a causal relationship must be proved between these circumstances and the offense committed (Decision of the FAS TSO of 17.10.2006 No. A-62-1083 / 2006).
D.E. Kovalevskaya, while denying the need for a causal relationship between the circumstances under consideration and a tax offense, also points out that the Tax Code does not contain reservations that would impose restrictions on attributing circumstances to mitigating tax liability depending on the time of existence of such circumstances and the presence (absence) of causality - investigative connection with the fact of a tax offense ". * (283)
Arguing the position of denying the need for a causal connection between extenuating circumstances and a tax violation, the court indicated in one of the cases that the tax authority, arguing that circumstances mitigating tax liability, must necessarily be the cause of the offense, thereby illegally replacing the concept of "mitigation of liability ", which, as applied to the circumstances of the present case, means a decrease in the amount of the fine exacted by the court, the notion of" mitigation of guilt ", which is insufficient stim (Resolution FAS SZO from 18.08.2003 N A42-1025 / 03-12).
In another case, the court also invalidated the inspection’s argument that the circumstances recognized by the court as extenuating liability were not in direct causal connection with the tax violation. At the same time, the court indicated that the Tax Code does not contain reservations that would impose restrictions on attributing circumstances to mitigating tax liability, depending on the time of existence of such circumstances and the presence (absence) of a causal relationship with the fact of a tax offense. Moreover, the provisions of Art. 112 and 114 of the Tax Code indicate circumstances mitigating liability, and not circumstances mitigating the guilt of the person who committed the tax offense (Decision of the FAS ВСО of 11.21.2006 N А19-42453 / 05-44-45-Ф02-6134 / 06-С1 )
Thus, at present, the question of the condition of a causal relationship between a circumstance and a tax violation in order to recognize this circumstance as extenuating liability remains open.
1. The circumstances excluding the guilt of a person in the commission of a tax offense shall be recognized:
2) the commission of an act containing signs of a tax offense by an individual who, at the time of its commission, was in a condition in which that person could not be aware of his actions or lead them due to a painful condition (these circumstances are proved by providing documents to the tax authority that in meaning, content and date refer to the tax (settlement) period in which the tax offense was committed);
3) the fulfillment by the taxpayer (payer of the fee, payer of insurance premiums, tax agent) of written explanations on the procedure for calculating, paying tax (charge, insurance premiums) or on other issues of the application of the legislation on taxes and fees given to him or to an indefinite number of persons financial, tax or by another authorized body of state power (authorized official of this body) within its competence (the specified circumstances are established if there is a corresponding document the authority, in the meaning and content relating to the tax (settlement) periods in which the tax violation was committed, regardless of the date of publication of such a document), and (or) the fulfillment by the taxpayer (payer of the fee, payer of insurance premiums, tax agent) of the motivated opinion of the tax authority sent to him during tax monitoring.
The provision of this subparagraph does not apply if the written explanations, the motivated opinion of the tax authority are based on incomplete or inaccurate information provided by the taxpayer (payer of the premium, payer of insurance premiums, tax agent);
4) other circumstances that may be recognized by the court or the tax authority considering the case, excluding the guilt of a person in the commission of a tax offense.
2. In the presence of the circumstances referred to in paragraph 1 of this article, a person shall not be liable for a tax offense.
Commentary on Art. 111 of the Tax Code
In paragraphs 1 p. 1 of the commented art. 111 of the Tax Code of the Russian Federation, circumstances are described that characterize the objective side of a tax offense, but at the same time exclude the guilt of a person who committed this offense.
First of all, it is necessary to clarify some definitions indicated in the commented article, namely:
a natural disaster is an earthquake, a volcanic eruption, flood, drought, hailstorm, hurricane, typhoon, tornado, other natural phenomena that occur regardless of the will of the person and as a result of which the person was forced to commit an act containing signs of a tax offense (for example, during the flood documents and materials on accounting, reporting, calculation and payment of tax were completely destroyed, as a result of which the tax was not paid on time);
other emergency circumstances are epidemics, epizootics, military conflicts, civil unrest, civil wars, interethnic armed conflicts, the death of the head of the organization in a car accident, an acute heart attack in an individual entrepreneur, etc. circumstances due to which an act containing signs of a tax offense was committed;
insurmountable circumstances - these are circumstances that occurred suddenly, having an unavoidable character and not depending on the will of an individual or organization. Such circumstances may arise from the actions of state authorities (for example, a moratorium on certain activities temporarily imposed by the Government of the Russian Federation, the collapse of the banking system as a result of default, the collapse of the national currency, etc.) and technical, technological, technological, etc. . disasters (for example, sudden failures in a computer network, which led to the death of all information).
All the above circumstances are considered established if:
- well-known facts;
- publications in the media (we are talking only about print media, and not about radio, television, etc., otherwise the legislator would use the term “promulgation”);
- other methods that do not need special means of proof.
It is necessary to pay attention to a number of the following features inherent in the rules of paragraphs. 2 p. 1 of the commented art. 111 of the Tax Code:
a) they are talking about an individual - a taxpayer. Therefore, the general rules of Art. 106 of the Tax Code of the Russian Federation in this case are not applicable (since the rules of the special rule of paragraph 2 of clause 1 of article 111 of the Tax Code of the Russian Federation take precedence);
b) there is no fault of an individual taxpayer, as:
- the person could not be aware of their actions. In other words, we are talking about the intellectual aspect, that a person could not adequately perceive the outside world, was not able to not only correctly understand the nature of information, the content of documents, etc., but also to give them an assessment, to control their actions, understand the unlawful nature of your act, etc. As a result, the causal relationship between the phenomena of the external world, the actions of the face and the reflection of these phenomena and actions in the consciousness of the face is distorted;
- a person could not direct his actions due to a painful condition. The latter is expressed in the fact that a person, although he understands the nature of his actions, is aware of them (for example, that documents cannot be destroyed), at the same time, he is not able to stop actions that fall under the signs of a tax offense.
It is no accident that in this case, the legislator used the very correct phrase “an act containing signs of a tax offense,” since there is no need to talk about committing an offense if one of the most important elements of the composition of the tax offense is missing - its subjective side. However, if it is established that a person has already committed an offense and only then comes into a painful state, then he is not exempted from liability. This applies equally to the disease that preceded the offense.
In accordance with paragraph 1 of Art. 111 of the Tax Code of the Russian Federation the circumstances that exclude the guilt of a person in the commission of a tax offense are recognized:
1) the commission of an act containing signs of a tax offense due to natural disaster or other emergency and insurmountable circumstances (these circumstances are established by the presence of well-known facts, publications in the media and other ways that do not need special means of proof);
2) the commission of an act containing signs of a tax offense by a taxpayer - an individual who, at the time of its commission, was in a condition in which that person could not be aware of his actions or lead them due to a painful condition (these circumstances are proved by the submission of documents to the tax authority which, in terms of meaning, content and date, relate to the tax period in which the tax offense was committed);
3) the fulfillment by the taxpayer (payer of the tax, tax agent) of written explanations on the procedure for calculating, paying tax (tax) or on other issues of application of the legislation on taxes and fees given to him or to an indefinite number of persons by a financial, tax or other authorized public authority (authorized an official of this body) within his competence (the specified circumstances are established if there is an appropriate document of this body, within the meaning and content of alogovym periods in which committed a tax violation regardless of the date of publication of this document), and from January 1, 2015 - the implementation of a taxpayer (the payer of gathering or tax agent) the reasoned opinion of the tax authority, directed him in the course of fiscal monitoring.
At the same time, we note that the fulfillment by the taxpayer (payer of tax, tax agent) of the motivated opinion of the tax authority sent during the tax monitoring will not relate to the circumstance that excludes the fault of the person in the commission of the tax offense, if these written explanations, motivated opinion tax authorities were based on incomplete or inaccurate information provided by this taxpayer (tax payer, tax agent) (subparagraph 3 of paragraph 1 of article 111 of the Tax Code of the Russian Federation in r editions of Law N 348-FZ).
Mentioned in paragraphs. 1 and 2 p. 1 of the commented art. 111 of the Tax Code of the Russian Federation circumstances to the extent exclude the fault of the taxpayer, in which they are proved by the submission to the tax authority of documents that relate to the tax period (Article 55 of the Tax Code) in which the offense was committed:
- in its meaning;
- in its content;
- by the date indicated in the text of the document.
Describing the rules of paragraphs. 3 p. 1 of the commented art. 111 of the Tax Code of the Russian Federation, one should pay attention to a number of the following circumstances:
a) they apply to both individuals and organizations that are:
- taxpayers (Article 19 of the Tax Code);
- tax agents (Article 24 of the Tax Code of the Russian Federation);
b) the documents, in the meaning and content related to tax periods in which tax offenses are committed, are letters, recommendations, guidelines, etc., coming from:
- tax authorities at all levels (Articles Art. 30, 31 of the Tax Code);
- other authorized state bodies (their circle is specified in Articles 9, 36, 63 of the Tax Code);
- officials of the above bodies (Articles 33–35, 37 of the Tax Code);
c) fines do not threaten the taxpayer if he made mistakes following the explanations that were addressed to an indefinite number of persons or to a specific taxpayer who used the letter. Such explanations should, in their meaning and content, relate to tax periods when a tax violation has been committed, regardless of the date of publication of these documents. The response of officials should contain complete and reliable information.
Norms of Art. 111 of the Tax Code of the Russian Federation apply to official letters of the department, which is authorized to give this kind of explanation. As the analysis of judicial arbitration practice shows, the provisions of paragraphs. 3 p. 1 art. 111 of the Tax Code also apply to documents such as a notice of the possibility of applying a simplified taxation system (see, for example, FAS Resolution of the East Siberian District of November 11, 2011 in case No. A10-4848 / 2010).
The presence of circumstances specified in paragraph 1 of Art. 111 of the Tax Code exempts from liability, but does not exempt from payment of tax payable. Article 75 of the Tax Code of the Russian Federation proclaims: if the taxpayer was guided by the explanations of officials and because of this incorrectly calculated the tax or fee, he will not be fined. However, only if the letters of the Ministry of Finance, the Federal Tax Service, other authorized bodies are addressed to an indefinite number of persons or directly to the taxpayer who used the explanation, in the meaning and content relating to the tax (reporting) periods for which arrears were formed, regardless of the date of publication of such a document .