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The Federal Tax Service prescribed the conditions for the accelerated initiation of criminal cases

The Federal Tax Service prescribed the conditions for the accelerated initiation of criminal cases

The Federal Tax Service (of FTS (Federal Tax Service)) wants faster transfer of tax audit materials to investigators, if he does not see the violators' intentions to voluntarily repay the damage, found out Forbes. The initiative is being discussed with representatives of the Prosecutor General's Office, Investigative Committee and the Main Directorate of Economic Security and Anti-Corruption of the Ministry of Internal Affairs

The Federal Tax Service proposes to expedite the initiation of criminal cases against taxpayers. Corresponding letter, sent to the Attorney General, available to Forbes, The authenticity of the document was confirmed by the source, close to the FTS. The department suggests not to wait 75 days after the entry into force of the decision to hold liable based on the results of a tax audit (p. 3 in art. 32 NK) in some cases. The reason for the faster initiation of criminal cases, according to the FTS, should be the absence of the taxpayer's intention to voluntarily compensate for the damage: concealment of property and money, which the tax authorities can collect to the budget, transfer of proceeds to affiliates. At the same time, inspectors must provide evidence of the withdrawal of assets, highlighted in document.

Investigators are also interested in accelerating the initiation of criminal cases., previously reported by RTVI with reference to sources in the UK and the Prosecutor General's Office. “The investigating authorities now also have KPIs for replenishing the budget and they regularly report on compensation for damages”, Vadim Zaripov, Head of the Analytical Service of the Pepeliaev Group law firm, explained.

Forbes sent requests to the Federal Tax Service, Prosecutor General's Office, Investigative Committee and Ministry of Internal Affairs.

Since March 2022 years, investigators are forbidden to initiate criminal cases on tax crimes themselves (Art. 198 — 199.2 CC). The reason for initiating a case can only be the materials of tax audits.. This was one of the first measures to help businesses in the face of sanctions and is designed to reduce the pressure of the security forces on business.. “Amendments to the Code of Criminal Procedure in March 2022 year not specified, what kind of materials can become a reason for initiating criminal cases – only the results of tax audits or any messages from the tax authorities”, - Alexander Erasov, partner of the law firm MEF Legal, explained to Forbes.

The tax office is obliged to raise the issue of initiating a criminal case through 75 working days after the entry into force of the decision to hold liable based on the results of a tax audit (p. 3 in art. 32 NK). During this time, debtors can pay off the state and avoid criminal prosecution.. In March 2023 year came into force a direct ban on the initiation of criminal cases, if the offender paid off tax debts.

However, in practice cases are often initiated before the specified time., Kommersant reported with reference to business associations. “We encountered such examples in Moscow as well., and in various regions, — told Forbes Vadim Zaripov. In cases of "hurry", the investigators refer to. 3 Art. 82 NK, which regulates the general exchange of information between tax authorities and law enforcement agencies. In April, the Prosecutor General's Office proposed to clarify and consolidate, that only materials can be the reason for initiating criminal cases, directed under Art.. 32 NK.

SC in 2022 estimated the annual damage from tax crimes at about 58 billion rubles. The Federal Tax Service last year accrued a record amount of taxes - almost 700 billion rubles, What's on 81% more, than in 2021 year. Last year, during the preparation of the budget for 2023, “ambitious tasks” were set before the tax authorities to increase the collection, wrote Vedomosti with reference to a source close to the government. One reason is to reduce the expected budget deficit.. The Ministry of Finance lays the budget deficit on 2023 year at the level 2,9 trillion rubles, however, by the end of the first three months of the year, it amounted to 2,4 trillion rubles.

Criminal - mandatory or extraordinary measure

If the tax authorities see risks, that the debtor will hide the assets, she has the right to “block” his property and accounts. “It is not necessary to initiate a criminal case immediately for this.”, - the lawyer commented on the initiative of the Federal Tax Service Forbes, Partner of the consulting company "Nomen" Ivan Yagolovich.

The law does not directly prohibit tax authorities from sending materials to the investigation earlier 75 Days, emphasizes ambassador “business officer” Ekaterina Avdeeva: "Don't forget, that a tax officer is a civil servant, which must respect the interests of the state". If the inspector sent the materials of the tax audit to the investigation untimely, he may be charged with misconduct or a crime.

Vadim Zaripov, against, sure, that criminal prosecution is an extreme step, when administrative measures are not enough and there is a public danger - concealment of proceeds, salaries in envelopes, purchase of "paper VAT", fictitious costs, controlled "one-day".

The proposal of the Federal Tax Service is an example of departmental rule-making, considers Zaripov. “Local tax inspectorates can broadly interpret these explanations of the Federal Tax Service in their own interests, he warns. - For example, how the lack of intention to repay the damage can be regarded as, that the taxpayer did not submit a debt repayment plan to the controllers”.

Inspector, hit the brakes

It is no coincidence that the law gives taxpayers about six months to appeal the decision based on the results of the audit and pay off the debt, emphasizes Zaripov: “Appeal against the decision of the inspection in a higher tax authority often reduces the amount of claims. In addition, the arrears are imputed for three years, with penalties and fines, and it is not easy to quickly find money and pay off the debt ".

So, one developer was initially charged with arrears on an especially large scale - over 60 million rubles, the materials of the check were immediately handed over to the investigator. Considering taxpayer objections, the inspection itself withdrew the main part of the accruals and the amount was reduced to 14 mln rubles - less than large size. “At the same time, the investigation managed to initiate a criminal case with damage to 60 million rubles and is in no hurry to stop it", - Zaripov gave an example from practice.

A criminal case and the threat of imprisonment deprives taxpayers of protection opportunities, emphasizes Yagolovic. “An appeal allows you to cancel claims for unproven violations and reduce arrears, - notes the lawyer. - But when a criminal case is initiated, the choice is between paying or sitting. With a bunch of criminal cases, it doesn’t matter whether they were initiated legally or not - when there is a risk of ending up in a pre-trial detention center, suspects will run like scalded, collecting money to pay the required amount".

Avdeeva, on the contrary, he thinks, that it is necessary to initiate criminal proceedings as soon as possible in cases, similar to the high-profile cases of bloggers Valeria Chekalina (Lerchek) and “creator of the Marathon of Desires” Elena Blinovskaya. “The bloggers tried not to pay off the arrears, and [strived] to the Russian border, she pointed out. — Они сознательно, на протяжении длительного времени уклонялись от уплаты налогов. Какие кардинальные изменения могли бы произойти в течение 75 Days? Or the bloggers would be guaranteed to escape?».

“If the Federal Tax Service’s proposals are approved, Entrepreneurs simply will not have enough time to repay the debt, - warns Zaripov. — Explanations from the Federal Tax Service may turn the appeal into a fiction. The courts, usually, turn a blind eye to violations of procedures and deadlines by tax and investigative authorities".

Ideally, you need to specify. 140 Code of Criminal Procedure (grounds for initiating a criminal case), indicating that the initiation of criminal cases under tax articles is possible only based on materials, directed according to. 3 Art. 32 NK (in compliance with the deadline 75 Days), solidarity Zaripov and Yerasov.

“Business Russia” proposes to strictly establish in law a deadline for paying arrears. Если нарушитель успел загладить вину — он гарантированно избежит уголовного преследования. «Это позволит, one side, get away from legal uncertainty, которая может порождать и коррупциогенные риски — считает Екатерина Авдеева. “On the other hand, to significantly reduce the pressure on business and encourage payers to pay off debts as soon as possible and avoid criminal prosecution.”.

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