What threatens for non-payment of VAT. Penalty for non-payment of VAT
Organization LLC upon delivery of a VAT return for 4 square meters. 2013 on line 110, did not take into account the previously taken-off VAT amount (39541 rubles) from the paid advances displayed in the 3rd quarter. 2013 on line 150. At the moment in 2016 accountant discovered a mistake and sent an updated declaration for 04 square. 2013 Question: What threatens this mistake to the company? Will there be a penalty for this violation?
For late payment of VAT by your organization, interest will be charged as well as a fine. The amount of the fine will be 20% of the amount of the arrears. If inspectors prove that the non-payment was intentional, then the fine will increase to 40 percent.
Sergey Razgulin, State Councilor of the Russian Federation, 3rd class
How do organizations transfer tax to the budget
Late fees
If the tax (including advance payments) was transferred later than the deadlines, the tax inspectorate will accrue interest (). *
Penalties will be calculated as follows:
Penalties are charged for each calendar day of late payment. Including weekends and public holidays. The whole period will be taken into account - from the day after the deadline for tax payment until the date when the arrears are paid. For the day when the tax obligation has been fulfilled, no interest is charged. This is due to the fact that they are only charged on debt to the budget. On the day when a payment order was presented to the bank (offsetting, etc.), the tax debt is considered already paid. So it turns out that there is nothing to charge penalties from: the basis for calculation on this day is zero.
Penalties are not charged if arrears have arisen for the following reasons:
- the property of the organization was seized by decision of the tax inspectorate;
- operations on the organization’s accounts were suspended, money and other property were seized by court order as an interim measure.
In these cases, no interest is charged for the entire period in which such decisions are effective.
Having submitted an application for granting a deferment (installment plan) or investment tax credit, the organization will not suspend the calculation of interest on arrears. This is stated in paragraph 2 of paragraph 3 of Article 75 of the Tax Code of the Russian Federation.
In addition, no interest is charged if the arrears arose because the organization was guided by the written explanations of the controlling departments when calculating taxes and (or) adhered to the instructions (motivated opinion) of the tax inspectorate sent to it in the process of tax monitoring (paragraph 8 of Art. 75 of the Tax Code).
Situation: whether the tax inspectorate can charge penalties for late payment of tax if it has not notified the organization about the change in the details of the account to which the tax should be transferred
No, he can not.
Indeed, if an organization has not been notified of a change in details, it has the right to transfer tax on the previous details of the accounts of the Treasury of Russia. In general, the tax inspectorate is obliged to inform organizations about changes in the details of the accounts of the Treasury of Russia. The notification form was approved by order of the Federal Tax Service of Russia dated November 9, 2006 No. SAE-3-10 / 776. This document is a written explanation of the tax office. And the execution of such documents relieves the organization of liability and penalties (subparagraph 6, paragraph 1, article 32, paragraph 8, article 75, subparagraph 3, paragraph 1, article 111 of the Tax Code).
A similar point of view is reflected in the letter of the Ministry of Finance of Russia dated February 9, 2007 No. 03-02-07 / 1-60.
Fines for tax evasion
Attention: for non-payment of taxes, the organization and its officials will be punished. For this offense provides for tax, administrative and even criminal liability.
Tax liability
Tax inspectors have the right to fine the organization. However, they can do this solely for full or partial non-payment of tax at the end of the tax period. * No penalties are charged for the amount of unpaid advance payments (Clause 3, Article 58 of the Tax Code of the Russian Federation).
The fine will be 20 percent of the amount of the arrears. * If the inspectors prove that the failure was intentional, the fine will increase to 40 percent. This follows from the Tax Code of the Russian Federation.
If the organization does not transfer the tax, acting as a tax agent, then it will also be fined 20 percent of the amount ().
The tax inspectorate will send the requirement to pay penalties to the organization within 20 business days from the day the decision on the results of the tax audit comes into force (, clause 6, article 6.1 of the Tax Code of the Russian Federation).
Administrative responsibility
It happens that the tax was not paid due to a gross violation of accounting rules: when the tax was incorrectly accrued and its amount was distorted by at least 10 percent. Then the court may additionally bring the head of the organization or chief accountant to administrative responsibility. The fine in this case will be from 2000 to 3000 rubles. ().
In each case, the perpetrator of the offense is established individually. In this case, the courts proceed from the fact that the head is responsible for the organization of accounting, and the chief accountant is responsible for its correct conduct and timely reporting ().
Usually found guilty of the chief accountant or the one to whom his responsibilities are transferred. The head of the organization is found guilty in the following cases:
- if the organization did not have a chief accountant at all (Decree of the Supreme Court of the Russian Federation of June 9, 2005 No. 77-ad06-2);
- if the accounting is maintained and taxes are calculated by a specialized organization. For example, an audit company (paragraph 26 of the resolution of the Plenum of the Supreme Court of the Russian Federation of October 24, 2006 No. 18);
- if the cause of the violation was the written order of the head with whom the chief accountant did not agree (Code of Administrative Offenses of the Russian Federation.
Subsequently, fines can be challenged in court. And if the arbitral tribunal cancels the tax liability in relation to the organization, then the magistrate’s court, which the director or accountant will apply to, should also remove the responsibility from these officials. Ground of decision: absence of corpus delicti confirmed by the arbitration court (paragraph 2 of paragraph 1 of article 24.5 of the Code of Administrative Offenses). This conclusion was reached by the Supreme Court of the Russian Federation in a decision of December 1, 2014 No. 80-AD14-8.
Criminal liability
If the inspection proves that tax evasion was the result of a crime, the court may convict the perpetrators of the criminal offenses under articles and the Criminal Code of the Russian Federation.
At the same time, not only the head and chief accountant of the organization, but also other persons can be found guilty. Those that contributed to the crime. In simple terms, accomplices and instigators. For example, accountants who deliberately misrepresent primary documents, or tax consultants whose advice led to the commission of a crime. Such instructions are contained in the decision of the Plenum of the Supreme Court of the Russian Federation of December 28, 2006 No. 64.
Untimely payment of VAT - What penalties are provided for such an offense? The article addresses the issue. untimely payment of VAT, from it you will learn about subjective circumstances that may affect the reduction of the fine.
What fines threaten VAT violators?
Tax legislation provides for penalties for late payment of VAT in the form of 20% of the unpaid amount. For malicious violators who deliberately delay the payment of tax, double sanctions are applied, that is, instead of 20, they will have to pay 40% of the non-payment amount.
Tax authorities consider that late payment of VAT is a serious tax violation (Article 122 of the Tax Code of the Russian Federation). However, there are various situations where the punishment can be mitigated. We will talk about them in the next section.
What can affect leniency?
The list of circumstances that can significantly reduce the punishment:
- Excessive VAT paid to the budget.
- Repayment of tax arrears, as well as interest on a voluntary basis.
- The taxpayer has violated the deadlines for making the amount of VAT in the state treasury for the first time.
Mitigating circumstances are listed in paragraphs. 3 and 1 tbsp. 112 of the Tax Code of the Russian Federation. According to the provisions of this article, in some cases, tax officials and judges may reduce the liability of a taxpayer who delays the transfer of tax to the budget or does not fully pay the amount recorded in the declaration. This may include cases of illness or even death of a loved one, as well as the occurrence of a threat to life or health. However, life is not so straightforward, therefore, other difficult situations that do not fall within the precise definitions of this article can be considered mitigating and can affect the decision on punishment.
Does tax overpayment make it easier?
Courts have different approaches to making decisions on punishment in case of violation of the payment deadlines with the overpayment available to the taxpayer.
Many court orders show that tax overpayments have a positive effect on taxpayer punishment. The degree of guilt is determined by the court based on the current situation. An example can be seen in the resolution of the FAS SKO dated 05.13.2011 in case No. A32-24703 / 2010. The court clarified that the overpayment on the company’s accounts was formed from incorrect calculations of the tax amount and should not be taken as a measure of evading the taxpayer’s duties. Many arbitral tribunals support this opinion in making their decisions.
The fact of overpayment revealed at the time of the installation of arrears and exceeding this arrears has a greater influence on the decision of the judiciary on the innocence of the taxpayer. A similar statement can be seen in the decision made by the Arbitration Court of the Arbitration Court of the Arbitration Court in the case No. A45-806 / 2004-CA40 / 45, reflected in the resolution of 07.04.2008 No. Ф04-1668 / 2008 (1938-A45-25). The decisions of some other arbitration courts are based on this precedent.
Often the courts mitigated the measure of responsibility for untimely paid amounts not only for VAT, but also for corporate income tax and property.
But not every court recognizes overpayment as a relief in making decisions on determining the taxpayer’s guilt, if it turns out that VAT or any other tax was paid late. For example, such an opinion was expressed by the Arbitration Court of the Ural District on 08.20.2008 in resolution No. F09-5323 / 08-C3 in case No. A71-3098 / 2007. The court rejected the lawsuit to reduce penalties. The judges gave an explanation: only courts of general jurisdiction can determine whether there were any mitigating circumstances at the time the offense was committed or not.
How repayment of arrears and interest on a voluntary basis affects the punishment
As regards the issue of paying off arrears and penalties on a voluntary basis and the effect of this fact on commuting the sentence, the courts did not come to an unambiguous opinion and make conflicting decisions.
Opinion No. 1: early repayment of debts on arrears and penalties identified is recognized as a mitigating circumstance at the time of determining the degree of fault of the taxpayer for non-payment or partial payment of the due tax amounts. The most convincing arguments in favor of this point of view are contained in the resolution of the FAS SKO dated 10.23.2013 in case No. A32-37825 / 2012. In it, the court noted that the taxpayer, in order to reduce his guilt for not paying the budget on time, independently transferred the amount of debt and interest. The court recognized this fact as a mitigating circumstance. The Federal Arbitration Courts of the ZSO and the Volga-Vyatka District operate with the same arguments in decisions of 04.03.2013 in case No. A27-15083 / 2012 and of September 19, 2012 in case No. A28-11341 / 2011.
But recognition of the fact of early repayment of arrears of tax arrears as a mitigating circumstance is possible only in one case: if the taxpayer has fully settled the budget before it was checked by the tax authorities. That is, as an extenuating circumstance when establishing the degree of his guilt, the specified qualifying declarations and the payment made may be recognized. This position was reflected in the resolution of the Federal Antimonopoly Service of the Volga Region dated 02.21.2012 in the case No. A55-12545 / 2011.
Opinion No. 2: Arbitration courts do not consider early repayment of debts mitigating the fault of the taxpayer circumstance. They base their conclusions on the fact that the requirements of the tax inspectorate cannot lead to a mitigation of the guilt of the company itself, since it is obliged to fulfill its direct obligations to pay the tax due on its own, without the requirements of the IFTS. These findings are contained in the FAS ZCO court ruling dated 01/31/2012 in the case No. A27-6262 / 2011, the appeal of the decision in the Presidium of the Supreme Arbitration Court was refused.
The taxpayer for the first time violated the terms of payment, is there any relief?
Like other controversial issues regarding Article 122 of the Tax Code of the Russian Federation, courts consider this issue from different points of view and issue conflicting decisions on recognition / non-recognition as an extenuating circumstance of an initial non-observance of the established deadlines.
So, the Federal Antimonopoly Service of the Volga and North Caucasian districts considered this circumstance mitigating the taxpayer’s guilt in decisions dated March 26, 2014 in case No. A72-6157 / 2013 and dated March 14, 2014 in case No. A32-26775 / 2011.
Another position of the arbitration courts is based on the conclusion that, based on the provisions of Article 112 of the Tax Code of the Russian Federation (paragraphs 1-3), the list of extenuating circumstances did not include a position on the primary violation of the deadlines for tax payment, therefore this fact cannot be recognized as mitigating the fault of the taxpayer. This was reflected in the decision of the Arbitration Court of the East Siberian District of July 10, 2012 in case No. A78-7098 / 2011. The plaintiff was refused a complaint to the Presidium of the Supreme Arbitration Court of the Russian Federation on this decision. The same opinion was expressed by the court of the Volga Federal District in a decision of September 13, 2011 in case No. A55-25957 / 2010.
We touched on the topic of subsidiary liability for tax violations, but what if the problem takes a very bad turn and goes into the criminal law plane? Who will answer the tax composition? When will the chief accountant be responsible? I will give an answer to all these questions, plus there will be some practical tips on how not to become extreme.
Statistics
First, the scale of the problem. To do this, you need some official statistics. The Judicial Department, in its statistics, does not single out tax crimes separately, including them in a block of crimes in the economic sphere (and this is already 54 crimes and, attention (!), This does not include such a crime as fraud), for 2016 such criminal cases were received first instance courts (district) - 6100 pcs.They were sentenced to various types of punishments in 5667 criminal cases, and our most humane court in the world issued acquittals in 32 criminal cases. The conclusion is obvious - if it comes to court, it will be practically impossible to justify. By the way, they recognized that it is useless to fight in court and hoping for a mitigation of punishment, a special judicial procedure (the defendant agrees with the prosecution, the court does not consider evidence), the defendants agreed to 3374 criminal cases.
But what is the situation with tax convictions? The state automated system “Justice” indicates that for the whole of 2015 in the Russian Federation, according to Article 199 of the Criminal Code of the Russian Federation (Tax evasion and (or) tax evasion from the organization), a total of 300 sentences were issued, in 2016 - 165. According to Art. 199.1 of the Criminal Code of the Russian Federation (Non-fulfillment of duties of a tax agent) in 2015 - 22, in 2016 - 15. According to Article 199.2 of the Criminal Code of the Russian Federation (Concealment of funds or property of an organization or individual entrepreneur, at the expense of which taxes and (or) fees should be collected) 2015 - 98, in 2016 - 31.
The leader for 2015-2016 in terms of sentences under Art. 199 of the Criminal Code of the Russian Federation turned out to be the Krasnodar Territory (34), the second place was Stavropol (32), in Moscow - 8, and in St. Petersburg only 3. The statistics as a whole are not terrifying. Maybe there is no problem at all and it was thought up by lawyers and trainers on tax optimization to scare directors and accountants?
According to the official data of the Ministry of Internal Affairs, published on the agency’s website, in 2015, 9041 tax crimes were detected, and in 2016 - 9283. In 2015-2016, a total of 18 324 tax crimes were identified. But the sentences for this period of time handed down only 631! But somewhere in the bowels of the Ministry of Internal Affairs there is also hidden statistics on business inspections as part of audit material (KUSP) or operational-search measures (ORM), which did not even reach the initiation of a criminal case! Of course, we can’t get these statistics (this is no less a state secret!), And it’s not really needed, but I’ll assume that in 2015-2016 there were at least two hundred thousand police inspections of the business by tax only.
It would be possible to end this part of the article with an optimistic statement - do not be afraid of police checks, anyway the probability of initiating a criminal case is small, and you have to try very hard to get a court verdict, but in all the statistics given there is not enough information about tax crimes that qualified as fraud , and this is a significant array of crimes related to the illegal optimization of VAT. It is very difficult to isolate statistics on such “tax” frauds from all frauds, however, in the following parts of the article I will analyze this situation with specific examples, as well as give practical advice on how to avoid criminal liability for tax crimes to chief accountants and directors of organizations in our turbulent time.
In the first part of the article, we touched on statistics and found out that the number of court decisions in criminal cases in tax crimes is 29 times less than in criminal cases. What is the reason, are the economic police and the investigation so bad that they simply don’t get to court?Without delving into the legal jungle, I recall that our Code of Criminal Procedure contains article 28.1, which business owners, directors and chief accountants need to know. It is called the “Cessation of the Prosecution of Crimes in the Sphere of Economic Activity”. The meaning is simple: if prior to the appointment of the trial in the criminal case by the accused, the budget has been fully compensated for the damage, the criminal prosecution is terminated. Full compensation involves not only the payment of arrears, but also penalties and fines, and the accused himself must commit such a crime for the first time. This is how “legal” buyback is implemented, that is, even if you have already been pressed, the problem can be solved legally.
But if it comes to court? I studied dozens of court decisions on tax crimes for 2015-2016, learned the opinion of law enforcement officers and lawyers, and here are the conclusions that can be drawn:
1. Most tax cases have a high inertia: in the sentences passed in 2015-2016, crimes were committed in 2010-2012. That is, sentences for tax crimes of 2017 will begin to appear in 2019 and (scary to say) in 2023, which gives grounds for some owners and business directors to take optimization issues lightly, guided by the saying: “A person assumes, but God disposes”.
2. The sentences of 2015-2016 on tax crimes, from the point of view of criminal law, are toothless, but this is not the humanity of the Russian legal proceedings - the matter is an amnesty, which almost all defendants fell under. A new large-scale amnesty is expected by 2025, so those who like to take risks can dream of suing no earlier than this year.
3. Criminal cases under Art. 199 para. 1 (if 5 to 15 million rubles were evaded for 3 consecutive years, exceeding 25% of the amount of all taxes payable or in the amount of more than 15 million) are terminated in court for expiration of criminal prosecution: if 2 years have passed from the date of the crime to the entry into force of the sentence. Given the complexity and volume of criminal cases, this often happens, so one of the working defense tactics is to drag out the investigation.
4. Many criminal cases under Article 199 Part 1 are committed by the directors extremely stupidly or out of ignorance (which the truth does not absolve from liability) - for example, a common crime is invoicing with VAT, organizations applying the simplified tax system, without subsequent payment of VAT to the budget. Therefore, directors who consider accounting as a matter of accounting exclusively, I advise you to think again.
5. Absolutely any punishment does not exempt from payment of arrears, penalties and fines to the budget. Entrepreneurs tried to prove in the courts that, being held criminally liable, they should not compensate for the damage to the budget, since in this way they were brought to justice twice for the same violation, the case came to the Constitutional Court, but the court found that there was no double liability and will have to pay. And here the law No. 401-FZ on liability by all personal property of the founders of the organization works.
6. For tax crimes, the CEO is almost always held accountable, in rare cases, together with the chief accountant. Moreover, usually the chief accountant “not suspecting the criminal intent of the latter (director) and the discrepancy between the validity of the documents submitted to him on relations with LLC“ N ”, reflected in the accounting a deal with ...”, etc. That is, for the chief accountant, the main thing is to prove the lack of intent to evade. In rare cases, the chief accountant is also involved; his participation in illegal optimization is proved both by testimony (greetings to subordinates, including accounting staff), and by listening to telephone conversations (“talker is a godsend for a spy”). Often testimonies are given by the cashiers themselves, indicating that they communicated on the preparation of documents and delivery of cash with the chief accountants.
7. Evidence of the intent of the director or accountant revolves around the hackneyed topic of lack of due diligence when choosing counterparties. Therefore, do not be lazy to exercise due diligence. This may not save from tax liability, but from criminal liability - yes.
8. All liberal legislation ends if the money was not simply not received by the budget (this is the tax composition), but was illegally received from the budget (VAT refund) - this is already Art. 159 of the Criminal Code (fraud), most sentences are handed down to a group of people, where not only the director and the chief accountant, but also the founders are often recognized as accomplices. It’s easy to get the chief accountant for four or five years of real imprisonment for this - and here the arguments that apply to the tax authorities (“I don’t know anything, it's all the director, I carried out binding decisions”) are no longer valid, and the matter is not compensated ceases. If you do not want to sit down - do not do so.
9. The absolute superiority among taxes, whose optimization led to the initiation of criminal proceedings and the court - VAT.
Colleagues, the amnesty is over, and the fiscal function of the state is strengthened. To optimize to the bench in the cage of a district court is not as difficult as it seems. Do not be the one to create a new tax crime court practice.
Value added tax, like any other tax, few people want to pay. That is why many managers are thinking about how to reduce it or not pay it at all. What threatens them for this? Is it possible not to pay tax and at the same time avoid any liability?
There are two common reasons for not paying VAT:
- Deliberate tax evasion
For many businessmen, an acute sense of injustice is caused by the fact that with an increase in profits, VAT also increases. That is, the more successful the company, the more energy and energy invested in it, the more it has to give to the state. In addition, VAT puts the company in a rather tight framework: despite the fact that the organization can sell its products in six months or even a year, it must pay taxes regularly. For the tax authorities it does not matter whether the goods are sold or not. And if some entrepreneurs are outraged by these “peculiarities” of the tax and forced to look for legal ways to reduce it, then for others the reaction is completely different: do not pay! - Inadvertent delay in payment deadlines
It should be connected with the fact that the accountant simply forgot about the need to pay tax. Or he messed up the deadlines. Or the accountant made a mistake in the VAT return. The error had to be corrected, and this led to non-payment of VAT on time. In the end, the accountant could get sick at the crucial moment. All this is quite understandable. The problem is that for the mistakes of a full-time employee, the head of the company is personally responsible. And all fines and pennies are paid from her budget.
Responsibility for non-payment of VAT in 2015-1016
What fines, pennies, sanctions and other consequences threaten for non-payment of VAT? Responsibility for late payment or tax evasion is provided for immediately in three codes of the Russian Federation: on administrative offenses, tax and criminal.
- Administrative liability for non-payment of VAT
For failure to submit documents and information necessary for tax control within the prescribed time period, officials, that is, heads of the organization, are punished. All sanctions apply to them. The penalty is a fine from 300 to 500 rubles (article 15.6 of the Administrative Code), and for gross violation of the rules of accounting and reporting - from 2,000 to 3,000 rubles (article 15.11 of the Code of Administrative Offenses). - Tax liability for non-payment of VAT
According to the tax code, for non-payment of VAT, the head will have to pay again (article 122 of the Tax Code of the Russian Federation). The size of the fine or penny depends on the form of guilt of the unscrupulous taxpayer. And here the amounts are already more serious. If the failure to pay or the late payment of VAT was made through negligence, the amount of the fine will be 20% of the tax amount (paragraph 1 of Article 122 of the Tax Code of the Russian Federation). If the offense turned out to be intentional, then the fine will amount to 40% (paragraph 3 of Article 122 of the Tax Code of the Russian Federation). - Criminal liability for non-payment of VAT
It involves not only financial responsibility, but also a restriction on the freedom of perpetrators depending on the gravity of the crime (Articles 198 and 199 of the Tax Code of the Russian Federation). Thus, tax evasion by the organization or the provision of knowingly false information, committed on a particularly large scale, is punishable by a fine of 100 up to 300,000 rubles, or by forced labor for up to 2 years, or by arrest for up to 6 months, or by imprisonment for up to 3 years. If the offense is committed by a group of persons by prior conspiracy, the fine will be from 200 to 500,000 rubles, the term of forced labor is up to 5 years, and the term of imprisonment is up to 6 years.
Of course, if the organization is not a malicious payer, then the matter is unlikely to reach criminal liability. Administrative and tax liability are quite real, and their reason may turn out to be the most commonplace - all the same accounting errors.
The stakes are high
If you inadvertently did not pay 1 million rubles to the treasury, you will have to pay a fine of 200,000 rubles. If you didn’t pay extra on purpose, you will have to part with 400,000 rubles.Can I legally not pay VAT?
Can. If we turn to article 145 of the Tax Code of the Russian Federation, we will see that in the event that the amount of proceeds from the sale of the enterprise’s products for the last three months does not exceed 2 million rubles, then the organization is exempt from tax. You can also achieve exemption from VAT. But for this, your company must engage in a certain type of activity.
If it is not legal not to pay VAT, then you can try to reduce it. There are two legal ways to do this: 1) applying reduced tax rates, 2) increasing the amount of tax deductions. We talk more about them in other publications of our blog.
In conclusion
Failure to pay VAT sooner or later can lead to serious liability before the law. Untimely payment of taxes entails the imposition of fines on the organization, that is, additional costs.
The problem is that the company can be an absolutely bona fide taxpayer. And problems with the law can arise from her because of the ubiquitous human factor. In this case, it refers to either incompetence, or high workload, or personal circumstances of staff accountants. For these reasons, more and more companies are now outsourcing their accounts. Another option is to fully control the work of your accounting department. But then will there be time for doing business?