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Responsibility of the taxpayer for the counterparty: how it is and how it should be

Responsibility of the taxpayer for the counterparty: how it is and how it should be

13 December Member of the General Council and Head of the Delovaya Rossiya Expert Center for Criminal Law Policy and Enforcement of Judicial Acts Ekaterina Avdeeva took part in the round table “Taxpayer’s Responsibility for the Counterparty round table "The responsibility of the taxpayer for the counterparty: as it is and as it should be. The discussion was organized by the law firm Pepeliaev Group as part of the XVIII All-Russian Tax Forum of the Chamber of Commerce and Industry of the Russian Federation.

The event was attended by Deputy Head of the Federal Tax Service Viktor Batsiev, Head of the Department of Procedural Control over the Investigation of Tax Crimes of the Department of Procedural Control over the Investigation of Certain Types of Crimes of the Investigative Committee of the Russian Federation Sergey Trokhov, Deputy Head of the Department of the GUEBiPK of the Ministry of Internal Affairs of Russia Anatoly Pankratiev, representatives of business associations, scientific organizations, professionals and taxpayers. The meeting was moderated by Sergey Pepelyaev, Managing Partner of Pepeliaev Group Law Firm.

In her speech, Ekaterina Avdeeva spoke about some of the difficulties of applying a tax clause. In particular, the expert center received an appeal to initiate a criminal case against a person, which adjusted tax reporting on the recommendation of the tax authority, who convinced, what a person can recover from a guilty company on the basis of a tax clause. However, the actions to adjust tax reporting and pay debts were actually perceived as an admission of guilt and led to the initiation of a criminal case..

The proposal to refuse to initiate criminal proceedings in the event of full repayment of the tax arrears was announced by the expert center at the Business Russia forum and supported by Russian President Vladimir Putin. While the instructions of the President of the Russian Federation from 26.04.2022 No. Pr-740 is not formalized in the form of a law that has entered into force, problem persists. “In this regard, it is necessary to develop clarifications on the inadmissibility of initiating criminal cases with the timely and full repayment of arrears before the adoption of the above draft law”, - Ekaterina Avdeeva suggested. According to her, it is important to establish interdepartmental cooperation, to take into account and mitigate criminal legal risks for counterparties, who choose to take advantage of the tax exemption, to ensure its effective use in the future..

Particular attention at the round table was paid to the establishment of criminal liability for the sale of fictitious invoices.. Today, the formation of "paper" VAT has become widespread. The organizers of the so-called sites sell fictitious, that is, exhibited in the absence of real shipment, invoices, used by "buyers" to inflate deductions. "Despite, that initially the business community was afraid of this draft law, we immediately supported him. Actually, it is necessary to establish responsibility for the organizers of "paper" VAT sites, in order to prosecute persons, organized such platforms, and not provoke criminal legal risks among taxpayers from the sphere of real business”, - explained Ekaterina Avdeeva.

A bill, aimed at establishing responsibility for the organizers of sites for the sale of "paper" VAT, has been discussed many times in various forums., including at the site of the expert center in close dialogue with representatives of the scientific community, business protection institutions, interested federal executive bodies. The bill does not absolve, it solves the problem of evading responsibility of those persons, who organize such platforms. "We have considered all opinions, that the proposed project meets the basic requirements: conciseness, lack of legal uncertainty and transparency in terms of law enforcement practice”, - emphasized Ekaterina Avdeeva.

These issues should be considered not only through the prism of liberalization. Strengthening responsibility for wrongful acts, carried out by the organizers of the "paper" VAT sites, will allow, one side, eliminate legal uncertainty, prescribing clear regulations for law enforcers and providing for the degree of responsibility for the perpetrators. On the other hand, guarantees will be provided, provided by the government, for business entities.

Besides, the expert center is actively working on the proposal of a new article in the Criminal Code of the Russian Federation on tax fraud, separating it into a separate, provided for in article 159.7 CC RF. According to Ekaterina Avdeeva, such acts are currently, committed by different people, can be qualified under the general criminal parts of the article 159 of the Criminal Code of the Russian Federation or be regarded as tax evasion under article 199 CC RF. At the same time, in both cases, crimes are not recognized as committed in the field of entrepreneurial activity., which actually deprives entrepreneurs of procedural guarantees, provided by the government for this category of persons. Thus, seems appropriate, First of all, to single out a separate composition of "tax" fraud, and also include it in the article 76.1 of the Criminal Code of the Russian Federation and article 28.1 Code of Criminal Procedure, which provide for the termination of a criminal case or exempt from criminal liability upon compensation for damage and payment of a fine.

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