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The Investigative Committee wants to expedite the initiation of criminal cases on tax evasion

The Investigative Committee wants to expedite the initiation of criminal cases on tax evasion

After the outbreak of hostilities in Ukraine and the introduction of numerous sanctions, one of the first measures to support Russian business during the crisis was to reduce the risks of criminal prosecution for tax evasion. Президент России Владимир Путин в марте signed закон, который запрещает следователям самостоятельно заводить уголовные дела по налоговым преступлениям — поводом для них теперь могут быть только материалы налоговых органов. По закону ФНС, before handing over data on evaders to the Investigative Committee, must provide violators 2 months to pay off debt. As RTVI found out, The investigator is now seeking, so that the tax authorities transfer this data to them faster - without waiting for the 2 Months. Lawyers note, that this will increase the pressure on business, who previously used this time to seek funds to pay off debt.

What is the essence of the proposals of the Investigative Committee?
Till March 2022 years, the Investigative Committee itself could initiate criminal cases under articles 198-199 CC (tax evasion). For iexample, if during the investigation of cases of "cashing out", the investigator learned about non-payment of taxes by an entrepreneur. However 9 March Vladimir Putin signed the law, which forbade the UK to independently initiate criminal cases on tax crimes - now this can only be done with the approval of the tax authorities. Reducing the risks of criminal prosecution for tax evasion was one of the first measures to support businesses during the crisis after the start of the armed conflict in Ukraine.

Herewith, according to current legislation, The Federal Tax Service is obliged to provide tax evaders with the opportunity to settle accounts with the state and avoid any punishment - this is allotted 2 months. In case, if the debt is not repaid during this time, tax officials are required to submit materials to the Investigative Committee. Thus, criminal prosecution is now a last resort for tax violations.

As RTVI found out, The Investigative Committee seeks to, so that the tax authorities quickly transfer data on evaders - without waiting for the two months established by law. The initiative is being discussed by the UK and other relevant departments “for the prevention of certain cases”, four sources in the UK and one in the Prosecutor General's Office told RTVI. In particular, it is necessary to speed up the process in cases of malicious violations, explained one of the RTVI sources in the UK.

Already now, in practice, tax authorities often do not wait for the two months established by law and rather transfer materials for initiating criminal cases., Aleksey Ryabov, head of the legal expert center of the Commissioner for the Protection of the Rights of Entrepreneurs, told RTVI. Basically they wait two months, but in some regions they send materials to the UK earlier, confirms Ekaterina Avdeeva, head of the Delovaya Rossiya business association's expert center for criminal law policy and enforcement of judicial acts.

“Local tax inspectorates often require you to pay as soon as possible, referring to that, that they are instructed not to wait, until two months pass, and immediately transfer the materials to the investigation. Even if the entrepreneur has appealed additional tax assessments, and the verification decision has not yet entered into force", Vadim Zaripov, head of the analytical service of Pepeliaev Group, told RTVI.

Is that allowed?

The law obliges the tax authorities to send materials to the investigation, after two months, but it doesn't stop you from doing it earlier., explains Avdeeva: “Nothing prevents the tax authorities from launching the materials on the same day”. However, Ryabov takes the opposite position and says, that if the law says "obliged" - it means that the state body has no discretion in this matter.

“The initiation of a criminal case is an extraordinary measure.. The order of excitation should not follow from the interpretation, and from the direct norms of the law, - emphasizes Ryabov. - Justification of such practice with the help of the civil law principle "everything is allowed, what is not forbidden” is contrary to the very foundations of law. Otherwise, government agencies could write their documents in verse and use fonts, which cannot be seen without a microscope.

At the same time, the legislative consolidation of the practice of prematurely transferring materials to the investigation will open the way for power arbitrariness and undermine confidence in the course announced by the government for the freedom of business., considers Zaripov. “I calculated unbearable amounts and immediately in the UK, and there let the entrepreneur already think: pay or stay. Businessmen will become easier to blackmail, that the materials of the tax audit will immediately be handed over to the investigation”, says the lawyer.

Why the IC is quicker to initiate criminal cases?
It is important for any investigator to start an investigation as soon as possible., to gather evidence in hot pursuit, notes Ilya Kucherov, First Deputy Director of the Institute of Legislation and Comparative Law under the government.

Initiative driven by concerns, that in two months unscrupulous entrepreneurs will hide, withdraw assets, destroy documents, Ryabov believes. Besides, only the investigation has the right to determine whether the offender did not pay extra taxes intentionally or by mistake. "For this, you need to conduct interrogations., confrontation, searches and seize additional documents, which is only possible in a criminal case”, - emphasizes Kucherov. A criminal case allows forcibly delivering the offender to the investigator or restricting his movement, if there is reason to believe, that the suspect can escape.

Since the investigation now depends on the tax, increased risks of corruption, stresses the chief researcher of the Center for Public Administration Studies of the Russian Academy of Sciences Sergey Maksimov: "SC is concerned about, that the changes created additional temptations for the tax authorities".

However, partner, Head of Tax Dispute Resolution Practice at Business Solutions and Technologies (former. Deloitte in the CIS) Anton Zykov sure, that “the only benefit from the accelerated transfer of materials to the Investigative Committee is the growth of statistical indicators of the work of investigators”. According to him, SC wants to increase the number of cases, which can be terminated in connection with the repayment of debt.

"The investigator will initiate a case, the entrepreneur will pay taxes in two months, then the SC will drop the case. From the outside it may seem, that the entrepreneur repaid the arrears solely as a result of the actions of the UK, which increases the importance of investigators in the work of filling the budget”, explained the tax lawyer.

The threat of a criminal case is unlikely to work for unscrupulous taxpayers, who were not willing to pay, sure Zykov, but for honest business it will complicate life. "Respite" in two months allows you to find funds to pay off the debt, borrow money or attract the help of the founders, agree Ryabov.

Alternative proposal
"Business Russia" proposes to strictly indicate in the law a reasonable and common period for all to pay off the debt to the budget, to get away from legal uncertainty. "Important, so that the entrepreneur knows exactly the time, during which he can pay the arrears and take advantage of the guarantee of non-initiation of criminal proceedings”, - Avdeeva emphasized.

Already after payment, if the taxpayer does not agree with the additional charges, he can try to recover his funds in the arbitration court, suggested Avdeeva: "The main thing, so that law enforcement practice does not equate the payment of arrears with an admission of guilt”. Delovaya Rossiya intends to formalize its position on the timing of the transfer of materials after discussion at a meeting of the expert center with the participation of the business community, law enforcement and interested departments 4 August, told Avdeeva.

The transfer of materials to the UK before two months can be challenged in court, thinks the lawyer, Partner of the consulting company "Nomen" Ivan Yagolovich: “Otherwise, such a proposal cannot be called a circumvention of the law”. But even the very fact of initiating a criminal case, even if it is later declared illegal, negatively impacts business, Ryabov emphasized: Banks are starting to refuse loans, partners break off relations, employees quit".

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