Considering the issues related to the receipt of unjustified tax benefits by the taxpayer, the authors, starting from the current tax and criminal legislation of the Russian Federation, as well as the emerging judicial practice, came to the conclusion that the line between the illegal minimization of tax obligations to public legal entities is quite illusory, especially when signs of tax fraud and tax crimes (Article 198–199.2 of the Criminal Code of the Russian Federation), becomes almost identical. Over the past 16 years, tax and criminal law (in terms of committed tax crimes) has become quite liberal towards persons who have committed violations of the law regarding unjustified minimization of taxes, fees, duties, insurance premiums. In the current situation, tax and law enforcement agencies are faced with the dilemma of distinguishing a tax offense from a committed crime. The authors have tried to answer some questions related to this problem.
tax crimes, tax fraud, unjustified tax benefit, resolutions of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation, the Supreme Court of the Russian Federation, letters and explanations of the Ministry of Finance of Russia and the Federal Tax Service of Russia, the amount of damage caused to the budget, tax and criminal liability for tax crimes
1. Definition of the Constitutional Court of the Russian Federation dated July 4, 2017 No. 1440-O «On refusal to accept for consideration the complaint of citizen Buneev Sergey Petrovich for violation of his constitutional rights by the provisions of Articles 146, 153, 154, 247-249 and 274 of the Tax Code of the Russian Federation» // SPS «ConsultantPlus».
2. Ruling of the Constitutional Court of the Russian Federation dated June 8, 2004 No. 228-O «On refusal to accept for consideration the complaint of the agricultural cooperative (collective farm) Krasnoselskoye for violation of its constitutional rights by Part 2 of Article 6 of the Law of the Russian Federation «On Payment for Land» and Part 2 of Article 6 of the Law of the Vladimir Region «On Land rates tax for individuals and legal entities for 1999» // SPS «ConsultantPlus».
3. The definition of the constitutional court of 18 January 2005 No. 24-About the "refusal to accept for consideration the complaint of the closed joint-stock company «Pechoraneftegaz» in violation of his constitutional rights by paragraph 1 of article 11 of the Tax code of the Russian Federation and part 2 of article 32.1 of the Federal law «On the introduction of part 2 of the Tax code of the Russian Federation and amendments to certain legislative acts of the Russian Federation on taxes» // SPS «ConsultantPlus».
4. Ruling of the constitutional court of the Russian Federation dated November 2, 2006, No. 444-About the «On the complaint of the Commissioner for human rights in the Russian Federation in violation of the constitutional rights of the citizen Astakhova Irina Alexandrovna provision of paragraph 1 of article 220 of the Tax code of the Russian Federation» // SPS «ConsultantPlus».
5. Definition of the armed forces from 1 December 2016. № 308- 6-10862, an overview of the legal positions of the constitutional court and the Supreme court for the second half of 2016 // SPS «ConsultantPlus».
6. Letter of the FTS of Russia of may 24, 2011 № of SA-4-9/8250 «evidence of unjustified tax benefit» // SPS «ConsultantPlus».
7. Letter of the FTS of Russia of March 23, 2017, № U-5-9/547@ «About clarification of unjustified tax benefit» // SPS «ConsultantPlus».
8. Letter of the FTS of Russia of March 10, 2021 № BV-4-7 No. 3060@ «About practice of application of article 54.1 of the Tax code of the Russian Federation» // SPS «ConsultantPlus».
9. Letter of the FTS of Russia on 11 August 2017, the number of SA-4-7/15895@ «About the judicial review of arbitration practice related to the appeal taxpayers non-normative acts of the tax authorities issued as a result of tax control measures, in which the facts of obtaining undue tax benefits through a formal division (split) of the business and artificial distribution of revenue from ongoing activities are controlled by related parties» // SPS «ConsultantPlus».
10. Letter of the Federal Tax Service of Russia dated October 31, 2013 No. CA-4-9/19592 «On the direction of the review of the practice of consideration of taxpayer complaints and tax disputes by courts on issues of unjustified tax benefits» // SPS «ConsultantPlus».
11. Letter of the Federal Tax Service of Russia dated July 17, 2013 No. AS-4-2/12837 «On recommendations for tax control measures related to tax audits» // SPS «ConsultantPlus».
12. Letter of the Federal Tax Service of Russia dated July 13, 2017 No. ED-4-2/13650@ // SPS «ConsultantPlus».
13. Letter of the Federal Tax Service of Russia dated December 30, 2022 No. SD-4-18/17916@ «On the Direction of the Review of Successful Practices in Eliminating Tax Evasion Schemes (together with a Review of Successful Practices in Eliminating Tax Evasion Schemes, including the Identification of their Real Beneficiary, Beneficiaries of the Activities of a Tax Evader, directions for the Withdrawal of Assets and the Received benefits, starting from the stages of pre-verification analysis and pre-investigation verification» // SPS «ConsultantPlus».
14. Letters of the Federal Tax Service of Russia dated July 25, 2013 No. AS-4-2/13622@ and dated May 29, 2012 No. AS-4-2/8792 // // SPS «ConsultantPlus».
15. Resolution of the Constitutional Court of the Russian Federation No. 6-P dated March 24, 2017 «On the case of checking the constitutionality of certain provisions of the Tax Code of the Russian Federation and the Civil Code of the Russian Federation in connection with complaints of citizens E. N. Besputin, A. V. Kulbatsky and V. A. Chaplanov» (item 4) // SPS «ConsultantPlus».
16. The decision of the constitutional court of the Russian Federation of July 22, 2020 No. 38-P «On the case about the verification of constitutionality of part 3 of article 159 of the Criminal code of the Russian Federation in connection with the complaint of the citizen M. A. Litvinova» // SPS «ConsultantPlus».
17. The decision of the constitutional court of the Russian Federation on 4 March 2021, No. 5-P «On the case about the verification of constitutionality of part 1 of article 159 of the Criminal code of the Russian Federation in connection with the complaint of the citizen Vladimir Kalugerovo» // SPS «ConsultantPlus».
18. The decision as the North Caucasus region from August 13, 2014 in the case № A53-11519/2013 // SPS «Garant».
19. The verdict of the Pskov City Court of the Pskov region of 2017 in case No. 1-14/2017 against Bolshakov V. A. on the grounds of a crime under Part 3 of Article 30, Part 3 of Article 159 of the Criminal Code of the Russian Federation // SPS «Garant».
20. Federal Law No. 263-FZ of July 14, 2022 «On Amendments to Parts 1 and 2 of the Tax Code of the Russian Federation» // SPS «ConsultantPlus».
21. Fighters A. I. Crimes against property. St. Petersburg : Law Center Press, 2002.
22. Gaukhman L. D., Maksimov S. V. Crimes in the sphere of economic activity. M. : Yurinfor, 1998.
23. Pankratov A. N., Fayziev R. T. Perspective of the Criminal code of the Russian Federation article about the tax fraud // Bulletin of the all-Russian advanced training Institute of the Ministry of internal Affairs of the Russian Federation. 2022. № 2 (62).
24. Pankratov A. N. The practice of application of article 159 of the Criminal code of the Russian Federation // the portal of the Ministry of internal Affairs of Russia. 2022. № 1 (57).
25. Full course of criminal law, ed. by A. I. Korobeev. 5 t. T. 3: Crimes in the economic sphere. St. Petersburg, 2008.
26. Reshnyak M. G., Moiseev S. S. On the issue of legal uncertainty in the regulation of criminal liability for tax crimes // Business security. 2019. № 4.
27. Sasov K. Economic analysis as a method of determining the proper subject of repayment of tax arrears // EZH-ACCOUNTANT. 2022. No. 13.
28. Skvortsova O. V., Zitulaeva D. A. Criminal liability for tax crimes: problems of differentiation and legislative novelties // Scientific notes of the V. I. Vernadsky Crimean Federal University. Legal sciences. 2022. Vol. 8. No. 4.
29. Solov'ev I. N. About some questions of the organization of tax crime investigations at the present stage // Russian investigator. 2019. No. 10. 6–8.
30. Criminal law of Russia. The special part / under the editorship of V. N. Burlakov, V. V. Lukyanov, V. F. Metelkova. St. Petersburg : St. Petersburg state University, 2014.
31. Eriashvili N. D. etc. Tax law: textbook for University students enrolled in the specialty «Jurisprudence». M. : YUNITI-DANA : Zakon I pravo, 2020.
