Practice of application of Article 199.2 of the Criminal Code.

Practice of application of Article 199.2 of the Criminal Code.

Today we will discuss "The Practice of Applying Liability for Tax Crimes".

Article 199.2 of the Criminal Code of the RF stipulates criminal responsibility for concealment of funds or property of an organization or individual entrepreneur at the expense of which tax liabilities must be recovered on a large and especially large scale in accordance with current legislation. A large amount is considered to be more than 2 250 000 rubles and an especially large amount is considered to be 9 000 000 rubles.

In the opinion of the tax authority the circumstances confirming the grounds for the application of this criminal liability are: 

- transfer of funds by the head of the organization to creditors by giving financial instructions to debtors to make payment by letters of instruction;

- The use of cash to conduct FCD without depositing the proceeds in the taxpayer's bank account in relation to which Article 76 of the Tax Code applies;

- concealing information about cash or property and the documents certifying it; 

- non-disclosure or misrepresentation of information on money or property in accounting documents; 

- alienation of property in accordance with clause 1 of article 235 of the Civil Code of the Russian Federation "Grounds for termination of property rights". making sham transactions with property (letter № GD-4-8/9849 dated 02.06.2016). 

- Applying the mechanism of the Labor Dispute Commission, withdrawal of funds to conduct FCD, but not settlements with employees of the organization;

- Assignment agreement (cession) to bypass collection orders;

- And other actions according to the tax and law enforcement authorities with the direct intent, aimed at countering the forced collection of arrears on taxes and fees. 

Are accounts receivable subject to concealment of money and property?

The Federal Law of 20.07.2020 № 219-FZ has supplemented item. 2 of Article 38 of the Tax Code is supplemented by part two, from which it follows that "for the purposes of this Code property rights, except for non-cash funds and uncertificated securities, are not considered property".

In accordance with Article 75 of the Federal Law "On enforcement proceedings" accounts receivable means the right of claim to the debtor - a third party who has not fulfilled a monetary obligation to the creditor, including the right of claim for payment for actually delivered goods, performed works or rendered services, for rent, lease and others. 

Thus, receivables are directly attributed not to property, but to property rights. At the same time, the circumstances of the corpus delicti and the intent of the crime are important for understanding the issue under consideration.

Tax authorities and investigative bodies are united in understanding of these circumstances, which is reflected in the letter from 21.12.2016 № 242-45-2016/ED-4-2/24563@. According to the jointly developed position in the investigation of crimes under article 199.2 of the Criminal Code of the RF "it is required to prove that actions with funds and property were committed solely for one purpose - to prevent the collection of arrears on taxes and levies".

In order to initiate a criminal case tax and law enforcement authorities carry out a number of mandatory measures:

- Establish underpayment (more than 2,250,000 rubles for a large amount, 9,000,000 rubles for an especially large amount); 

- Sending demands for payment of tax and (or) fee to the taxpayer indicating the amount of tax (without penalty) and the deadline for payment with further control of the deadline for tax payment; 

- Make a decision on the foreclosure of the taxpayer's funds;

- Make a decision on the recovery of tax at the expense of the taxpayer's property to send to the bailiff for execution in the manner prescribed by the Federal Law "On Enforcement Proceedings"; 

- Find out whether the bailiff-executive performed enforcement actions in order to execute the decisions of the tax authority, if yes, what kind of actions and what the results were;

- Find out whether the suspect or defendant knew about the decisions of the tax authority on coercive measures, about their sending to banks and bailiff, about the actions of banks and bailiff, about the results of the actions taken.

After confirming the above procedures it is necessary to find out the objective side: 

- What specific actions (inaction) were committed in order to conceal funds and property from collection with an indication of the place, time, method of their commission; 

- What are the consequences - the amount of damage in the form of non-receipt of taxes and fees in the budget; 

- Whether the consequences in the form of non-receipt of taxes and fees in the budget in a direct causal connection with these actions (omissions).  

And the final action is to find out whether the actions (inaction) were not committed in a state of extreme necessity, which does not incur liability. 

Conditionally, extreme necessity is the commission of an act aimed at eliminating danger, which could not be eliminated by other means, provided that the limits of extreme necessity are not exceeded.  

The correctness of application of the concept of "Extreme Necessity" is explained in the Review of the Supreme Court of the Russian Federation of the practice of application by the courts of the provisions of Chapter 8 of the Criminal Code of the Russian Federation on circumstances precluding criminality of a deed.

In the event of risks of application of art. 199.2 of the Criminal Code in carrying out financial and economic operations, it is reasonable to consult with an expert and, if necessary, obtain a criminal-legal opinion on the presence of corpus delicti and direct intent to commit a crime under Art. 199.2 of the Criminal Code.