VAT is illegal. Illegal VAT refunds from the budget were qualified as fraud and tax evasion
Value added tax is the most unusual in Russian law. What is unusual in him is that he can not only be paid to the budget, but also, under certain circumstances, reimbursed. That is, you do not pay tax to the treasury of the state, but the state pays it to you - from your state accounts in the treasury to your accounts in commercial banks.
As a rule, a small number of people are aware of this - accountants, directors of enterprises and people close to managing a business, employees of tax and law enforcement agencies. For many people, a first acquaintance with this fact does not go without a bit of surprise. And if the seeds of such seductive knowledge fall on the soil of the consciousness of people for whom any methods of earning, including criminal methods, are good, the shoots of criminal shoots sometimes amaze the imagination. Intelligent scammers use a variety of unusual and exotic schemes for VAT refunds.
In a nutshell about how VAT is calculated and paid (or refunded): we summarize all the tax amounts that the company pays to sellers and suppliers within the reporting period - this is the outgoing VAT. We summarize all the tax amounts paid to the company by the buyers of the goods - this is the input VAT. The difference between incoming and outgoing is paid to the budget. And this is understandable - the company worked with a profit, there is more input tax with added value, it is necessary to pay it to the state.
But what if the company worked at a loss or had no sales at all? Or is input VAT generally equal to zero or calculated at a reduced tax rate? Then the difference between the incoming and outgoing tax turns out to be negative, and so it is then reimbursed to the company from the budget. And quite often various fraudsters show unhealthy interest in such situations, devising all kinds of ways to illegally return (in other words, embezzlement) VAT. Consider some of them.
The first way is selling goods abroad.
Company X buys any product subject to 18% VAT and sells it abroad. The sale of goods abroad is taxed at a zero rate, therefore, all outgoing VAT is refundable, since there is no input VAT, or it is minimal and is caused by certain small expenses in the Russian Federation that accompany the sale of goods abroad (transport, loading and unloading, etc. . d.).
This is probably the most classic and widespread scheme of illegal VAT refunds: one product is declared in the documents, but in fact it goes completely different abroad. For example, processed expensive fabric is claimed, and rags are traveling; expensive and obscure metal products, machine tools, equipment are declared, and scrap is traveling; an expensive ceramic mosaic is declared, and glass is broken or cut into small pieces; claimed scientific work worth millions of rubles, and a printout of plain text from the Internet goes no more than packing waste paper (and this also happens). The goods are not actually bought or sold, the transaction is simulated with their own firms, and VAT is refunded on non-existent goods worth tens, if not hundreds of millions of rubles.
The popularity of this scheme among white-collar crime is largely due to the difficulties that accompany the verification of any foreign counterparty. In order to collect evidence, it is necessary at least to request the appropriate authorities of a foreign state. And with a good approach to business, you need to go there and collect evidence of the theft of VAT yourself. As a result, they will either have the explanations of the employees (as well as the directors and founders) of the foreign company that they do not know anything about this transaction (if you are lucky enough to find them and they will turn out to be nominee leaders), or testimonies of customs and border officials services that the goods arrived from the territory of the Russian Federation do not correspond to those declared in the documents for VAT refunds.
This is at best. In the worst case, directors and founders cannot be found, border guards and customs officers will say that they are not involved in product research, but only check the supporting documents. This often happens. And it is not possible to collect the evidence base on the territory of the state - the buyer of the goods. It is also necessary to trace the movement of money in the accounts: where did the money come from, then sent to Russia as payment for the goods. As a rule, these are huge amounts, they come from the same Russia or neighboring states or offshore and make a circle movement - it is clear that this is not currency earnings, but simply a “run” of money in a circle.
On the territory of the Russian Federation, everything is much simpler. We have a whole chain of companies - suppliers of goods. And if this is an outright scam (that is, the product is not at all the one stated in the documents, or its quantity is overestimated), then it will be much easier to collect evidence. If only because few of the directors of enterprises - sellers of goods want to sit down for the money that the organizers of the scheme promised him.
When operational officers describe in paints and details to him all his “prospects” in the case, almost any person, guided by the instinct of self-preservation, will abandon his legend that he saw it and bought goods, talked with sellers, etc. At best in the case, having seized on the role of a witness in the case, he will say that he was seduced by strangers, and in the worst case, he will hand over the organizers of the scheme. And even a lawyer, whom the organizers will hire him, will not help here.
If you caught fire with these criminal schemes, remember that this is the weakest point and you can’t get around it! The human factor will take its toll, and the scheme will “collapse”. Regulatory authorities know this very well, and real opera flips such schemes as nuts. In addition, it must be understood that people and structures involved in such schemes have large amounts of money at their disposal, which they drive in a circle, creating the illusion of foreign exchange earnings. They are ready to bear the costs of conversion, hoping to recoup them at the expense of the returned VAT. They have built relationships with banks, including foreign ones. And, of course, without the pre-negotiated "green light" from the tax authorities, few people start such games.
The second method is the production of goods that are subject to preferential VAT.
The tax code defines a group of goods subject to VAT at a reduced rate of 10%. This, for example, some food, children's products and several others. For example, company X purchased a flannel with a tax of 18%, sewn diapers from it and sold them, but with a tax of 10%. Outgoing VAT will be greater than incoming: 10% -18% \u003d - 8%. The company reimburses the difference from the budget. For manufacturers - an incentive, for fraudsters - a favorable situation.
If “white-collar workers” take up the case, then a situation is obtained that is similar to the first method described above. If this is a completely criminal scheme and the goods have not been produced in fact, it will be easy to prove. A survey of directors, seamstresses, and other persons reflected in the documents - everything is clear here. Difficulties arise when production is real, and either the price and volume of the goods (insignificantly) change, or grade and quality. All participants reflected in the documents will confirm all production and commercial processes, but practically no one will say exactly how many, for example, the number of rolls of fabric (500 or 600) passed per month and how many meters of fabric were in each roll. The chances of revealing anything will tend to zero.
The third way is a one-time purchase.
An enterprise acquires an object whose value is very difficult to assess. For example, in the 2000s there was a criminal case, according to which the company acquired huge coastal territories of one of the large rivers, which, according to preliminary estimates, contained very large deposits of sand. The assessment was not carried out by the competent authorities, but the company arranged it. It bought these territories from another enterprise for the amount of billions of rubles. Outgoing VAT in the amount of more than one hundred million was “sitting” in these payments.
He was presented by the company for compensation. The incoming payment was without VAT, since the land was bought with borrowed funds or money contributed to the authorized capital of the enterprise. Of course, all this was a scheme to “inflate” the outgoing VAT. In addition, no one with 100% probability could say how much sand, which determines the high cost of the plots, is actually located on them. And the general opinion was that there would not be any sand there and on the hundredth part of the declared. As a result, the scheme was proved by revealing the movement of money.
Such one-time transactions include the purchase of transport or real estate without a final change of ownership. Unscrupulous owners conduct their goods through fictitious transactions between their own enterprises. An illusion of a purchase is created, in the payment of which the "outgoing" VAT "sits", then presented for refund. But neither the car, nor special equipment, nor real estate, the owner as a result does not change. At the same time, in this case, the price at which VAT will be refunded may also be overestimated.
Fourth way- lack of sales transactions.
As a rule, these are one-time schemes, in the general mass they are quite rare and are aimed at creating the illusion of an objective absence of transactions. A product was bought - for example, tomatoes. They deteriorated, they were either sold for livestock feed for "pennies" or thrown away. Or the goods were bought, but they cannot be sold - for one or another objective reason. The scheme here is built according to general rules - the outgoing VAT is large, the inbound one is very small or absent. The difference is put back. Such transactions are either completely criminal or mixed. One such transaction can be “thrust” among other similar transactions at the enterprise, and accordingly they are identified in the same way as in all other cases - fixing the availability of goods, polls of people, etc.
It is worth noting that criminal games with VAT are not always aimed solely at stealing money from the budget. Often they are used to simply “equalize” the input and output VAT and, as a result, to lower the amount of VAT payable - this is already a typical tax optimization.
Criminal return or theft of VAT or optimization of taxation at the enterprise according to the schemes described above, as a rule, is not visible to a wide circle of the public, and, accordingly, does not cause resonance in society. But those who use these schemes need to know one thing: no matter how nice it may look, no matter what mountains of documents imitating active financial and economic activity, or on tables, no matter how wise accountants and beautiful secretaries fill the office space, creating the impression of a successful company with a corporate spirit, in fact - this is the most elementary theft. No more difficult than getting into the apartment through the window or putting your hand in someone else's pocket on the bus. Only larger volumes, and not so striking.
Denial of VAT refunds is a fairly common occurrence on the part of the tax service. Usually it is the result of a desk audit of the tax return, but sometimes the already refunded tax is restored after a field audit of the taxpayer or his counterparties ..
The cancellation of the refund is full or partial, and the grounds for refusing VAT refund are different, but they cannot go beyond the scope of the articles of the Tax Code. A taxpayer who has been refused a tax refund has the right to act depending on the circumstances and the real state of affairs: to challenge the decision of the Federal Tax Service or to agree with it and pay the arrears. Judicial practice has long been established in such cases, but it is not unambiguous. We will deal with all this in more detail and consider when, and most importantly, under what circumstances the arbitration courts refused to taxpayers after the Federal Tax Service.
Reasons for refusal
The Federal Tax Service may not accept the tax for reduction only if, as a result of a desk or field audit of the taxpayer, its specialists revealed an understatement of the calculated VAT or the unlawful application of tax deductions. This is stated in 89 of the Tax Code, 171 of the Tax Code and article 173 of the Tax Code. In the case of the declared VAT deduction as part of a desk audit, it will be possible to prove the understatement of the tax amount only if the documents of the taxpayer’s counterparties are requested. In these cases, there is a chance to recognize the claimed deduction as unlawful.
The most common reasons for this are as follows.
- The taxpayer does not comply with the conditions for deductions regulated by the Tax Code of the Russian Federation. For example, issued as a basis for reducing VAT an invoice drawn up with errors, corrections or missed the deadline set for deduction of VAT received from the supplier.
- The taxpayer declared a deduction on an invoice issued by an unreliable counterparty.
And if in the first case the taxpayer’s oversight is not so difficult to prove and it is usually indisputable, in the second situation the abolition of the VAT reduction entails a whole “bunch” of unpleasant consequences. The tax authorities, as a rule, argue that all goods (work or services) purchased from such a counterparty were not actually purchased from him, but from another person at a lower price, or even were manufactured by the taxpayer organization itself. That is, the whole transaction is considered fictitious, with all the ensuing consequences. Organizations can be accused of both malicious intent and the lack of due diligence in concluding an agreement with a one-day company. Thus, due diligence in choosing a counterparty is a way of protecting against failures in VAT deductions.
A special situation is when the tax service does not want to accept a VAT deduction in the absence of registration or information on the registration of a foreign taxpayer counterparty. An official position has not yet been formed on this subject, since the Tax Code does not have clarifications on this issue. It is noteworthy that at one time the Plenum of the abolished Supreme Arbitration Court once declared illegal the refusal on such grounds. But later, the Arbitration Court of the Moscow District, in a resolution of 04.16.2009 No. KA-A40 / 1324-09 in the case of No. A40-61824 / 06-98-345, came to the conclusion that the organization is not entitled to claim VAT for compensation, since its legal status foreign counterparty was not confirmed. In a controversial situation, the tax authorities managed to find out that the address of the foreign buyer of Russian goods in the United States is used by other persons, and the counterparty company itself did not conduct and does not conduct activities. Documents for the foreign trade transaction were issued without violations.
There are cases that tax authorities expressly refuse to accept a VAT return with the amount of tax to be returned. They call representatives of the organization and recommend that they refuse to reflect certain operations in the report in order to exclude the transfer of budget funds. Each taxpayer has the opportunity to evaluate such actions of inspectors independently and make an informed decision. After all, as already mentioned, the courts do not always recognize the defeat of inspectors.
Arbitrage practice
One of the fundamental documents that judges should be guided by when challenging refusals to approve and agree on VAT is still Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of July 30, 2013 N 57. In paragraph 49 it is said that according to the norms article 176 of the Tax Code the VAT tax return stating the right of the payer to refund this tax is subject to the general rules for conducting desk tax audits and reviewing the materials of these audits, as provided for in Articles 88 of the Tax Code of the Russian Federation, 100 Tax Code and 101 of the Tax Code. This means that tax authorities should not show any special attention to such reports. But in practice, they show it almost always.
The same document says that if the Federal Tax Service issued a refusal to refund VAT, the transactions on which seemed to him suspicious, then according to the norms of paragraph 3 of Article 176 of the Tax Code of the Russian Federation, such a conclusion, even if the refusal of deduction is partial, must be set out in a separate decision. At the same time, the tax service must decide on bringing (on refusal to attract) the taxpayer to liability for a tax offense. It is only possible to argue these two decisions in conjunction, since the Supreme Arbitration Court of the Russian Federation argues that the courts, when considering such complaints, must proceed from the fact that these decisions cannot be examined and interpreted in isolation from each other, including when they are appealed. These decisions of the Federal Tax Service come into force at the same time, are appealed jointly and paid by state duty as one taxpayer requirement.
So, let’s consider what arguments the tax authorities find to convince the court to take their side and recognize as justified the refusal of VAT refunds: judicial practice is contradictory.
Tax relief affects deduction
A more recent position on this subject was expressed by the Supreme Court of the Russian Federation in a review of judicial practice, approved by the Presidium of the Supreme Court of the Russian Federation on December 20, 2016. The judges considered the situation when, according to the decision of the Federal Tax Service, the organization was refused a VAT refund due to the fact that, during the period under review, air transportation of passengers and baggage, the company acquired ground handling services for aircraft, which according to the norms article 149 of the Tax Code exempted from VAT, and therefore had no right to include tax amounts received from suppliers of such services in the deductions, regardless of their allocation in invoices issued by counterparties.
Unreasonable tax benefit
Another circumstance in which the arbitral tribunal will take the side of the inspectors will be undeniable evidence that the reason for applying for the deduction was the desire of the taxpayer to receive unjustified tax benefit. This conclusion was made in the decision of the Arbitration Court of the North Caucasus District dated 03/28/2016 N Ф08-755 / 2016. In a controversial situation, tax inspectors refused to reduce the amount of VAT, since the counterparty-taxpayer did not have the necessary conditions to achieve the results of the declared economic activity. Although the two organizations concluded a supply contract for the purchase of tools and equipment, which was attached to the case materials together with invoices, waybills, waybills and other documents, it turned out that this was all a fiction. The supplier organization lacked managerial and technical personnel, fixed assets, production assets, storage facilities and vehicles. Based on this, the judges concluded that the taxpayer’s business operations with its counterparties were unrealistic.
One-Day Firms
The so-called one-day company as a counterparty is another trump card of the Federal Tax Service in case of refusals of VAT refunds. Although the tax authorities are far from always able to prove such circumstances, they often become the reason for a negative decision for the payer. The tax authorities do not hide the signs of such counterparties. Moreover, the Federal Tax Service issued order of February 11, 2016 N MMV-7-14 / [email protected] in which she listed all the grounds for conducting checks related to the dubious place of registration of organizations. In particular, inspectors pay attention to information included or already entered into the Unified State Register of Legal Entities (USRLE), and in case of reasonable doubts about their reliability cancel the tax reduction. Judges of the Federal Tax Service in such decisions support if there is sufficient evidence, as, for example, the Arbitration Court of the Moscow District did so in a decision of January 23, 2017 in case No. A40-51878 / 2016.
The arbitrators indicated that the organization, which wanted to challenge the denial of VAT deduction, entered into work contracts with one-day firms, and the original documentation contained inaccurate information because it was signed by unidentified persons. The leaders of the organization, which were indicated in the register, explained that they were not related to this company. In this regard, the court concluded that the plaintiff did not exercise due diligence and caution when choosing counterparties, and his actions were aimed at obtaining unjustified tax benefits.
There is only one conclusion from these and other court decisions: before concluding the contract, it is necessary to check the counterparty. Most often, the amount of the most non-refunded VAT is almost less than the fines that will have to be paid after the court makes a decision in favor of the tax service.
Total: checking the counterparty before the transaction is important
Verification can be done basic or advanced.
Basically: it is worth getting information about the company on the tax website, in the database of mass registration addresses, checking on the FSSP website whether there is enforcement proceedings against the company leader, and so on.
Kasnitskaya Inna Yuryevna, Candidate of Law, Senior Lecturer, Department of Legal Training of the Department of Internal Affairs of the Tyumen Institute for Advanced Studies of the Ministry of Internal Affairs of the Russian Federation, Tyumen [email protected]
Problems of the implementation of criminal liability
for illegal reimbursement of value added tax under the Criminal Code of the Russian Federation
Annotation. The article is devoted to the problematic issues of qualifying illegal reimbursement of value added tax in cases where the state budget becomes a source of embezzlement of funds. The article examines the problems that law enforcement officers face when suppressing attempts to illegally reimburse value added tax. Key words: value added tax, tax evasion, theft, illegal reimbursement.
The public danger of tax and tax evasion, that is, the deliberate failure to fulfill the constitutional obligation of everyone to pay legally established taxes and fees, lies in the non-receipt of funds in the budget system of the Russian Federation. Being the most important source of generating revenue from budgets of all levels, tax payments play an important role in stabilizing economic and social situation in the country. Non-receipt as a result of tax evasion of funds in the budget leads reduction of various social programs and other negative consequences.
No less dangerous in its consequences is the activity associated with the use of the tax system to withdraw funds from the budget under the guise of tax reimbursement. In this case, not only the established tax payments do not go to the budget system, but the state budget becomes a source of embezzlement of money. Russian officials admit that they do not have reliable data on the amount of illegal refund of value added tax (hereinafter referred to as VAT). Illegal VAT refunds are a complex economic and legal phenomenon. His criminal law characterization includes the analysis of a number of criminal law norms that are closely related to the norms of tax, civil law and other branches of law.
For a correct understanding of the essence of the criminal offense in the field of VAT refunds, we consider it necessary to briefly review the basic concepts related to the functioning of this tax.
Currently, the specified tax in the Russian Federation is established by Chapter 21 “Value Added Tax” of the Tax Code of the Russian Federation (hereinafter referred to as the NKRF). Note that this tax as a type of federal indirect taxes is a system of taxation of goods in the amount of value added at each stage of their production, exchange or resale. VAT is an indirect tax, as it is included in the price of the goods (work, service), and then deducted (reimbursed from the budget) by the buyer of the goods (work, service) as paid when it was purchased through the supplier, that is, it is actually transferred to the final consumer of the goods ( work, services). VAT is a federal tax (Article 13 of the Tax Code of the Russian Federation), since it is established by the Tax Code of the Russian Federation and is mandatory for payment throughout the territory of the Russian Federation (Clause 2 of Article 12 of the Tax Code of the Russian Federation). VAT is the main source of tax revenue for the federal budget. According to Art. 143 of the Tax Code of the Russian Federation, VAT and taxpayers are organizations and individual entrepreneurs, as well as persons recognized as taxpayers in connection with the movement of goods across the customs border of the Russian Federation.
Speaking of illegal VAT refunds, let us note what is the procedure for its legal replacement. VAT refund is a special procedure carried out by tax authorities, which consists in refunding VAT paid by a taxpayer to its suppliers for goods (work, services), or VAT paid in accordance with the established order in the budget. Reimbursement is carried out in two ways: by offset or refund. Moreover, the basis for applying this or that type of compensation is strictly regulated by Art. 176 NKRF. Set off as a form of reimbursement is a tax accounting transaction performed by a tax authority, as a result of which the taxpayer arrears on payment of arrears, penalties and tax sanctions are repaid. Refund as a form of reimbursement is a financial transaction carried out by the federal treasury based on documents sent by the tax authorities to return the money to the taxpayer. After the taxpayer submits a tax return, the tax authority checks bosnovannost tax amount claimed for reimbursement, when conducting a desk nalogovoyproverki in the manner prescribed by Art. 88 NKRF. At the end of the audit, the tax authority is obliged to make a decision on the reimbursement of the corresponding amounts within seven days if no violations of the legislation on taxes and fees were revealed during the tax audit. consideration of the materials of a tax audit, a decision is made to hold the taxpayer accountable for a tax offense or to refuse to be held liable Simultaneously with this decision, a decision is made to refund (in whole or in part) the amount of tax declared to be refunded, or a decision to refuse to refund the amount of tax. If the taxpayer has an arrears of tax, other federal taxes, arrears of interest or fines, the tax authority has the right to set off on its own the amount of tax to be refunded to pay off arrears and arrears of interest or fines. If the taxpayer has no arrears of taxes, arrears of interest or fines, the amount of tax to be reimbursed by decision of the tax authority is returned at the request of the taxpayer to the bank account indicated by him. If there is a written statement by the taxpayer, the amounts to be refunded can be used to pay forthcoming tax payments on tax or other federal taxes. The decision to set off (refund) the tax amount is taken by the tax authority at the same time as the decision to refund the tax amount (in whole or in part). The tax authority sends the tax refund request based on the decision to refund to the territorial authority of the Federal Treasury the day after the day the tax authority takes this decision. The territorial authority of the Federal Treasury, within five days from the date of receipt of the order, returns the taxpayer the amount of tax In accordance with the budget legislation of the Russian Federation, it also informs the tax authority about the date of return and the amount of money returned to the taxpayer. The prevailing criminal situation in the field of taxation indicates the frequent facts of unjustified VAT refunds, which are committed in various ways. A common way is “pseudo-export” - unreasonable use by commercial structures of the export tax exemption provided by the Tax Code of the Russian Federation. Its essence is that due to the fact that VAT is included in the price of goods (work, services), then the exporter pays this tax when purchasing goods (works, services) from a domestic manufacturer or supplier ka. In the subsequent sale of these goods (works, services) outside the customs territory of the Russian Federation, the exporter has the right to a VAT refund calculated on the basis of the price of the goods (works, services). And here various fraudulent schemes are used. Among them, three main ones can be distinguished. First: artificially inflated prices at which exporting enterprises purchased goods from suppliers, and, accordingly, the customs value of goods exported. Second: purchased products are not actually exported from the country. In accordance with the third scheme, Russian exporters purchase goods from an intermediary who does not submit tax reports and, therefore, does not pay taxes, and therefore the fact of transferring VAT to the budget is not confirmed. It should be noted that while stopping attempts to illegally recover VAT from the state budget law enforcement officials face legal difficulties. The first problem is the delimitation of the criminal claim for VAT refund and the lawful behavior of the taxpayer organization. Recall that unlawfulness along with public danger in accordance with Art. 14 of the Criminal Code is a necessary sign of a crime. With regard to VAT refunds, the definition of wrongfulness causes difficulties due to the fact that the rules determining the legitimacy of certain actions are not contained in the criminal law, but in the regulations of a different industry. According to the Tax Code, the taxpayer receives the right to refund VAT subject to the conditions : 1) he paid the counterparty from whom the goods were purchased, or refundable VAT to the budget; 2) he made a business transaction that gives rise to a VAT refund (for example, export of goods, etc.). Thus, if at least one of these conditions is not met, the claim for compensation will be illegal.
The next problem is related to the qualification of the offense under the relevant article of the Criminal Code of the Russian Federation to bring the perpetrators to justice. On the one hand, offenses committed in the area under consideration encroach on the interests of the state in the field of taxation of legal entities. However, on the other hand, the obviously illegal use of the VAT refund mechanism appears here as a way of criminally violating state property (in this case, the recoverable amount of VAT). In our opinion, the type of reimbursement (direct payments from the budget or tax credit), as well as the orientation of the intent of the guilty persons, are of paramount importance in the criminal qualification of illegal VAT refunds. So, if the intent is to receive money from the budget under the guise of VAT and embezzlement, then the act should be qualified under Art. 159 of the Criminal Code - fraud. Fraud is a form of theft, therefore, it is inherent in all the signs of this concept. In the case we are considering, the amount of VAT refunded by the state is the subject of fraud. In the commission of this crime, the injured party itself transfers the money to the criminal, believing that he has the right to receive it. The method of taking possession of another's property in case of fraud is a fraud or breach of trust. Deception is expressed in a false assertion that it is obviously not true, that is, that this legal entity has the right to a VAT refund. This is accompanied by the manufacture and use of forged documents that are presented to the tax authorities. Funds are turned in favor of the guilty party, since they are “returned” to the taxpayer, and from the moment they are credited by the territorial body of the Federal Treasury to his account, he gets a real opportunity to dispose of the funds received. As an example of the above qualifications, one can cite the criminal case under paragraph “B” part 3 of article 159 of the Criminal Code. During the investigation, it was established that the Executive Director of Delta Leasing Company CJSC G. concluded a fictitious transaction for the supply of export products of Velle Financial Union INK company. To create the appearance of cash flow from the sale of export products, an account was opened in a bank with the participation of CB Rublevsky and CB Intercredit. After the grounds for customs clearance of the exported goods were formally met, CJSC Leasing Company Delta submitted documents to the Inspectorate of the Russian Federation for VAT refund. During the investigation, the actions of being are correctly qualified as fraud. Consider a different situation. By submitting a package of deliberately false documents for VAT refund to the tax inspector, the taxpayer seeks either to get the opportunity to deduct the amount of tax to be refunded by paying off the arrears of this tax, other federal taxes, or if the taxpayer has no tax arrears and the tax authorities there is a written statement, the amounts to be returned must be sent to the account of payment of upcoming tax payments on tax or other federal taxes. Ika should be qualified under Art. 199 of the Criminal Code of the Russian Federation - tax evasion from the organization, since as a result of making them within the limits of artificially created budget arrears, the taxpayer “repays” his tax arrears or the amounts “payable” are sent by the tax authority to pay forthcoming tax payments on tax or other federal taxes. As a result, the corresponding amounts of taxes from this taxpayer are not received to the budget. According to the disposition of this article, in our case, the crime was committed by including in the tax return or other documents, the submission of which in accordance with the legislation of the Russian Federation on taxes and fees is mandatory, knowingly false information. the end of tax evasion, in our opinion, will depend on the method of VAT tax offset. In the event that the tax payment deadline has expired, the crime will be over from the time the tax authority decides on the offset, since this decision establishes the fact that the taxpayer fulfilled the obligation. If the organization is exempted from the obligation to pay taxes, the deadline for which has not yet arrived, then the deed may contain only the composition of the unfinished crime, since tax legislation links the non-payment of taxes with their non-payment in a timely manner. In the event that the taxpayer, before the deadlines specified in the law, voluntarily fulfills his obligations to pay taxes, then the norm of approving refusal of crime should be applied (Article 31 of the Criminal Code of the Russian Federation), and, accordingly, criminal liability is excluded in this case. The taxpayer, presenting a tax return to the tax authority containing inaccurate information about the state’s debt to him for VAT, is intent on receiving a refund by crediting money to his account, and the tax authority decides on a refund by offset. In this case, what we have done should be qualified, in our opinion, as an attempted fraud. A separate problem in qualifying illegal attempts to refund VAT is when the taxpayer tries to “refund” VAT through a tax credit if the outcome is unsuccessful. Here, on the one hand, there is unfinished fraud, and on the other, the guilty one, “refusing” to continue the theft, tries to continue it, but already as a tax crime. The traditional theory of qualification of “escalating” crimes finds a way out of this situation in the following. So, if the theft develops into robbery or robbery, then the offense is regarded as one and the article of the Criminal Code of the Russian Federation provides for a more severe punishment, that is, Art. 161 or Art. 162 of the Criminal Code of the Russian Federation. This takes into account the fact that such crimes have the same species-specific object. In our opinion, this approach is not applicable for assessing illegal VAT refunds. If, after a failed fraud, the perpetrator tries to get a tax credit, then the deed must be qualified according to part 3 of article 30 and Art. 159 of the Criminal Code and Art. 199 of the Criminal Code. In this case, there is no escalation of one crime to another. In addition, the rules on liability for fraud and tax crimes are in different chapters, protecting various objects - property and public interests in the field of economic activity, respectively.
In conclusion, we note the following. VAT is one of the main budget-forming taxes in modern Russia. Deficiencies in the legislative regulation of calculating, paying and refunding VAT allow using the mechanism for reimbursing the amount of this tax for criminal purposes: for tax evasion and embezzlement of funds from the federal budget. largely depends on the integrated efforts of law enforcement and regulatory authorities aimed at timely detection, a comprehensive and objective evseh circumstances prepared or committed crimes. But we can’t talk about revealing a crime if we cannot correctly assess the corresponding committed act from the standpoint of the criminal law. A proper criminal law assessment of acts that violate the criminal law, their qualifications in accordance with the law, ensures the proper protection of public relations from criminal encroachments associated with the use of the VAT refund mechanism.
References to sources 1. Resolution of the Plenum of the Supreme Court of the Russian Federation of December 28, 2006 No. 64 “On the Practice of the Application by the Courts of Criminal Law on Responsibility for Tax Crimes.” 2. Yu.A. Krokhin. Tax law. Textbook for bachelors. M., 2013.S. 396.3. Soloviev I.N. Tax crimes and crime. M., 2006. S. 2304. Ragozina I.G. Crimes in the field of taxation: qualification issues: textbook. Khanty Mansiysk, 2005. P. 31.5. Resolution of the Plenum of the Supreme Court of the Russian Federation of December 27, 2002 No. 29 "On judicial practice in cases of theft, robbery and robbery."
Kasnitskaya Inna Yurievna Candidat of Law Sciences, Department of legal training Tyumen Institute of Advanced Police Academy of the Russian Federation, [email protected] of implementation of criminal responsibility for illegal refund of value added tax under the criminalcode of the Russian FederationAnnotation. The article deals with issues of qualification of illegal refund of value added tax, in cases when the state budget is becoming a source of misappropriation of funds. The article examines the problems faced by law enforcement officers during suppression of attempts of illegal refund of value added tax. Keywords: value added tax, tax evasion, theft, illicit compensation.
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Game? Wrong word. The correct word is imprinting.
A newborn associates himself with those facial features that he observes immediately after birth. This natural mechanism is characteristic of most living creatures with vision.
For the first few days, newborns in the USSR saw the mother for a minimum of feeding time, and most of the time they saw faces of maternity hospital staff. By a strange coincidence, they were (and still are) mostly Jewish. The reception is wild in its essence and effectiveness.
All your childhood, you wondered why you live surrounded by non-native people. Rare Jews on your way could do anything with you, because you were drawn to them, and repelled others. Yes, and now they can.
You cannot fix this - imprinting is one-time and for a lifetime. It is difficult to understand, the instinct took shape when you were still very far from the ability to formulate. From that moment, neither words nor details were preserved. Only facial features remained in the depths of memory. Those traits that you consider your family.
3 commentsSystem and observer
We define the system as an object whose existence is beyond doubt.
The observer of the system is an object that is not part of the system he observes, that is, determines his existence, including through factors independent of the system.
The observer from the point of view of the system is a source of chaos - both control actions and the consequences of observational measurements that do not have a causal connection with the system.
An internal observer is a potentially achievable object for the system with respect to which inversion of the observation and control channels is possible.
An external observer is even an object that is potentially unattainable for the system and is located beyond the system event horizon (spatial and temporal).
Hypothesis No. 1. All-seeing eye
Suppose our universe is a system and it has an external observer. Then observational measurements can occur, for example, with the help of "gravitational radiation" penetrating the universe from all sides from the outside. The capture cross section of "gravitational radiation" is proportional to the mass of the object, and the projection of the "shadow" from this capture onto another object is perceived as an attractive force. It will be proportional to the product of the masses of objects and inversely proportional to the distance between them, which determines the density of the “shadow”.
The capture of "gravitational radiation" by an object increases its randomness and is perceived by us as a passage of time. An object that is opaque to "gravitational radiation," whose capture cross section is larger than its geometric size, looks like a black hole inside the universe.
Hypothesis No. 2. Internal observer
It is possible that our universe is watching itself. For example, using pairs of quantum entangled particles spaced in space as standards. Then the space between them is saturated with the probability of the existence of the process that generated these particles, reaching a maximum density at the intersection of the trajectories of these particles. The existence of these particles also means the absence on the trajectories of objects of a sufficiently large capture cross section capable of absorbing these particles. The remaining assumptions remain the same as for the first hypothesis, except:
Time flow
A third-party observation of an object approaching the event horizon of a black hole, if the “external observer” is the determining factor of time in the universe, will slow down exactly two times - the shadow from the black hole will block exactly half of the possible trajectories of “gravitational radiation”. If the “internal observer” is the determining factor, then the shadow will block the entire trajectory of interaction and the course of time for an object falling into a black hole will completely stop for viewing from the side.
Also, the possibility of a combination of these hypotheses in one or another proportion is not excluded.
"Taxes" (journal), 2007, N 2
In practice, the known difficulties are raised by the qualification of illegal VAT refunds as embezzlement (primarily fraud) or a tax crime or a combination thereof. It should be noted that in assessing the illegal refund of VAT, the law enforcer, perhaps, first encountered the problem of distinguishing between these compositions, since before the appearance of such a crime, such a problem did not arise.
An analysis of judicial investigative practice shows that initially various decisions were made on legally identical actions. At the same time, there are three theoretically possible options for qualifying the offense: tax evasion (Art. 198 or 199 of the Criminal Code), fraud (Art. 159 of the Criminal Code) or a combination of these crimes. A tax crime occurs if the right to a refund is exercised in the form of export VAT amounts or for domestic turnover reimbursed in the form of offsetting tax arrears or tax exemption in the next three reporting periods. However, they did not receive a theoretical justification.
Describing the objective side of the crime under Art. 199 of the Criminal Code, in our opinion, it should be noted that in the literature on issues related to the assessment of the form of action of this composition, today there is no single point of view. Most authors express the view that tax crimes can be committed both through action and through inaction<1>. Some authors are inclined to believe that among the methods of tax crimes there are both active and passive types, which are aimed at ultimately ensuring that a person evades paying taxes and (or) fees, that is, his inaction<2>. In our opinion, the commission of tax evasion by “including deliberately distorted data on income or expenses” in the declaration (accounting documents) is a typical example of “mixed inaction” formulated in the theory of criminal law<3>. In this case, the definition of this type of inaction formulated by N.A. will be correct. Babiy: "a combination of active and passive forms of action, when to ensure inaction a person performs any active actions"<4>.
<1> Sereda I.M. Crimes against the tax system: characteristics, responsibility, fight strategies. Irkutsk: IOGNIU "Institute of Legislation and Legal Information", 2006; The criminal law of the Russian Federation. Special Part / Ed. A.I. Raroga. M., 2001.S. 402 - 404; Kucherov I.I. Investigation of tax crimes: Dis. ... to. n Research Institute of the Ministry of Internal Affairs of the Russian Federation. M., 1996. S. 79; Maslova I.N. Criminal liability for tax evasion // Tax Bulletin. 1998. N 9.P. 154.
<2> See, for example: Verin V.P. Crimes in the field of economics. M., 1999. S. 97 - 104; Commentary on the Criminal Code of the Russian Federation / Ed. IN AND. Radchenko. M., 1996. S. 331 - 335; Grigoryev V.A., Kuznetsov A.V. Problems of qualification of tax crimes on the grounds of the object and the objective side.
<3> See: Piontkovsky A.A. The doctrine of a crime in Soviet criminal law. M., 1961.S. 139.
<4> Babiy N.A. Criminal law of the Republic of Belarus. A common part. Lecture notes. Minsk, 2000.S. 60.
In relation to the illegal VAT refund, the criminal act is characterized by failure to fulfill the obligation to pay taxes imposed on the person as a result of the “placing” of the state in the debtor’s position, accompanied by active actions to include false information in the tax return and other documents confirming the right to VAT refund at the rate of 0 or 18% .
In this regard, the objective side in this case is characterized by the possibility of committing these acts only in the form of inaction, which also indicates the delimitation of this composition from the composition of Art. 159 of the Criminal Code.
After the adoption of the current Criminal Code of the Russian Federation in law enforcement practice, qualification of tax crimes encountered problems associated with the methods of their commission. These problems were predetermined by the legislator, who in the dispositions of articles providing for liability for tax crimes, established specific methods for their commission.
Based on the wording of the article, evasion of taxes and (or) fees from organizations can be accomplished in one of the following ways:
a) by not submitting a tax return or other documents, the submission of which in accordance with the legislation of the Russian Federation on taxes and fees is mandatory, i.e. failure to provide, in violation of the law, information about the income and expenses incurred, about which the organization was obliged and could provide information;
b) by including knowingly false information in the tax return or such documents, i.e. knowingly deliberately making entries in the declaration or such documents that do not correspond to reality.
From the “classical” methods of tax evasion, the act of illegal compensation considered by us is distinguished by the fact that, as mentioned above, the state has an obligation to the taxpayer to refund him the means of VAT paid.
The right to set off on obligations to the federal budget is presented on the basis of the results of consideration by the tax authorities of a package of documents submitted by the taxpayer, including a tax return. Thus, the commission of the illegal VAT refund by offset initially involves the submission of a declaration upon the occurrence of the obligation to pay federal taxes, including VAT, and subsequently the submission of a special declaration as a basis for refund. Consequently, the first of the specified in the disposition of Art. 199 of the Criminal Code of the Russian Federation does not apply to the type of crime under consideration.
With regard to VAT refunds, it should be indicated that the right to refund is not available to any legal entity, but only to the one that carried out the operations provided for in Art. 146 of the Tax Code of the Russian Federation. In accordance with the indicated regulatory legal acts, the following entities are recognized as payers of value added tax: organizations; individual entrepreneurs; as well as persons recognized as payers of value added tax in connection with the movement of goods across the customs border of the Russian Federation, determined in accordance with the Customs Code of the Russian Federation (Article 143 of the Tax Code of the Russian Federation). If the concept of "organization" in relation to tax crimes has been repeatedly considered in dissertation research and monographic works<5>, then the content of the concept of "person moving goods across the customs border of the Russian Federation", which is directly related to the type of crime under consideration, committed through illegal VAT refunds, should be stopped.
<5> See: Sereda I.M. Crimes against the tax system: characteristics, responsibility, fight strategies. Irkutsk: IOGNIU "Institute of Legislation and Legal Information", 2006; Nudel S.L. Criminal law and criminological characteristics of tax crimes. Dis. ... to. n SGA. M., 2004; Larichev V.D. Tax evasion from organizations: qualifications of compositions // Russian Justice. 1997. N 6; Yani P. Qualification of tax crimes // Legality. 1998. N N 1, 2; Bembetov A.P. Prevention of tax crimes. Dis. ... to. n M .: All-Russian Research Institute of the Ministry of Internal Affairs of Russia, 2000.
In accordance with Art. 11 of the Labor Code of the Russian Federation by moving goods and (or) vehicles across the customs border is recognized as the commission of actions to import goods into the customs territory of the Russian Federation or export goods and (or) vehicles from this territory by any means. These actions can be performed by individuals (Ch. 23 of the Labor Code of the Russian Federation) and legal entities (Ch. 24 of the Labor Code of the Russian Federation)<6>.
<6> Federal Law of the Russian Federation of May 28, 2003 N 61-ФЗ "Customs Code of the Russian Federation" (as amended on December 23, 2003) // Russian newspaper. 2003. June 3.
Despite the fact that in accordance with the Tax Code of the Russian Federation, a person who is a VAT payer has a duty to file a certain type of tax return after the tax period, only one that is submitted for value added tax at a tax rate of 0% (KND form 1151002)<7>. The inclusion of knowingly false information in the declaration should be considered as one of the signs of the composition of the crime under consideration. Other declarations filed both for VAT and for other types of federal taxes, for the payment of which the taxpayer had arrears earlier or which are to be paid in future periods, contain reliable information, therefore, be considered as a sign of the objective side of Art. 199 of the Criminal Code cannot.
<7> Appendix N 2 to Order of the Ministry of Finance of the Russian Federation of December 28, 2005 N 163н "On approval of tax return forms for value added tax, value added tax at a tax rate of 0 percent and indirect taxes (value added tax and excise taxes) for import of goods into the territory of the Russian Federation "// Russian newspaper. 2006.15 Feb
Tax evasion from an organization through illegal VAT refunds is characterized by the presence in all cases of two alternatively described in Art. 199 of the Criminal Code of the Russian Federation signs of the objective side: the inclusion of knowingly false information in the tax return and in other documents. This follows from the content of Art. 165 of the Tax Code of the Russian Federation, which establishes the procedure for confirming the right to receive compensation for taxation at a tax rate of 0%. In particular, the article provides a list of documents required to confirm the validity of the application of the 0% tax rate (or tax features) and tax deductions to tax authorities. It seems that it is precisely such documents that can be attributed to others in accordance with Art. 199 of the Criminal Code.
Other documents, the submission of which is mandatory in accordance with the legislation of the Russian Federation on taxes and fees, are any documents objectively necessary for the calculation and payment of taxes, which are referred to in the relevant articles of the Tax Code of the Russian Federation and the norms of the current tax legislation as mandatory taxpayer. The obligation of the latter to submit documents to the tax authorities and their officials follows from the requirements of the law contained in paragraphs. 5 p. 1 Article 23 of the Tax Code<8>.
<8> Nudel S.L. Criminal law and criminological characteristics of tax crimes. Dis. ... to. n SGA. M., 2004.
Consider the features of the qualifications of illegal VAT refunds in order to obtain a set-off for the repayment of arrears or set-off of current payments, i.e. tax evasion from the organization. Qualifying signs in accordance with Part 2 of Art. 199 of the Criminal Code is the commission of this crime:
- a group of persons by prior agreement. In accordance with Art. 35 of the Criminal Code of the Russian Federation, a crime is recognized as committed by a group of persons by prior agreement, if it was attended by persons who had previously agreed on a joint commission of the crime. The commission of a crime by a group of persons, a group of persons by prior conspiracy, an organized group or a criminal community (criminal organization) entails a more severe punishment on the basis and within the limits provided for by the Criminal Code of the Russian Federation;
- in a particularly large size. In accordance with the note to Art. 199 of the Criminal Code of the Russian Federation, tax evasion and (or) fees from an organization are deemed to be committed on a particularly large scale if the amount of unpaid taxes and (or) fees for three consecutive financial years exceeds 1.5 million rubles, provided that their share exceeds 20% of the amount of taxes and (or) fees payable or exceeds 7.5 million rubles.
It should be noted that, given the changes and additions made to Art. 199 of the Criminal Code of the Russian Federation by Federal Law of December 8, 2003 N 162-ФЗ, if law enforcement or tax authorities detect falsified accounting or tax reporting documents before submitting them to the tax authorities, provided that the amount of unpaid taxes as a result of deliberately distorted documents data on income or expenses will exceed 1.5 million rubles, provided that their share exceeds 20% of the amount of taxes and (or) fees payable or exceeds 7.5 million rubles, liability may arise for preparing estupleniyu as the offense in accordance with Art. 15 of the Criminal Code of the Russian Federation is grave<9>.
<9> Nudel S.L. Decree. Op.
In the event that an unlawful VAT refund occurred on the basis of a single transaction (or a combination of transactions) for which one tax return and a corresponding set of documents were submitted to the tax authority for tax refunds, but in various ways (partly by returning funds from the budget, partly by paying off arrears of taxes, partly by offsetting current payments of taxes), then there is a combination of crimes (part 2 of article 17 of the Criminal Code of the Russian Federation).
Submission of a separate tax return for transactions taxable at a tax rate of 0%, 10% and a package of documents to confirm the validity of applying the tax rate of 0%, 10%, containing knowingly false information, for the purpose of unlawful compensation of VAT amounts to the tax authority, if this did not lead to unlawful reimbursement of VAT from the budget is subject to qualification as an attempt to evade payment of taxes from the organization (part 3 of article 30 and article 199 of the Criminal Code of the Russian Federation) if the purpose of submitting documents was to unlawfully pay off arrears or set off large-scale current tax payments (in an amount amounting to more than 2 million 500 thousand rubles over a period of three consecutive fiscal years, provided that the share of unpaid taxes and (or) fees exceeds 20% of the amount of taxes and ( or) fees, or in excess of 7 million 500 thousand rubles).
An attempt occurs only if an unlawful tax refund has not been made (i.e. the crime has not been brought to an end) due to circumstances beyond the control of the guilty person (part 3 of article 30 of the Criminal Code of the Russian Federation), in particular in the refund of tax amounts refused by the tax authority.
E.V. Milyakina
deputy head of the center
research problem
economic security