It has been 6 years since the publication of the Resolution of the Constitutional Court of the Russian
Federation No. 39-P of 08.12.2017, better known as the Akhmadeeva case.
At that time, the subject of consideration of the
Constitutional Court of the Russian Federation were the provisions of Articles
15 and 1064 of the Civil Code of the Russian Federation, as well as Article 31
of the Tax Code of the Russian Federation, which are the basis for the recovery
from individuals criminally liable for tax crimes of monetary amounts in
compensation for damage caused due to non-payment of taxes by an organization.
Let us recall the main conclusions reached by the RF
Constitutional Court:
- The
Constitution of the Russian Federation is not contradicted by the norms
that allow to recover on claims of prosecutors or tax authorities
compensation for damage caused to public-law entities in the amount of
money not received by the budget from the taxpayer organization from
individuals who were convicted of tax crimes (or criminal prosecution
against whom was terminated on non-rehabilitating grounds);
- When
considering such cases, the court must establish all the elements of a
civil offense, and the mere fact of a conviction cannot unconditionally
confirm the infliction of property damage;
- As a
general rule, it is not permitted to recover damages from individuals
until information is entered in the Unified State Register of Legal
Entities on the termination of the taxpayer organization or until the
court finds that the organization is actually inactive or that it is
impossible to recover arrears or penalties from it (persons held liable
for its debts) on the basis of tax and civil legislation;
- An
exception to the general rule about the mandatory priority of collection
of tax debts first from the taxpayer organization itself, from persons
held liable for its debts, is the situation when the court finds that the
taxpayer organization serves only as a "cover" for the actions
of an individual controlling it;
- Unpaid
tax arrears and penalties can be recovered from such individuals, but not
the penalty;
- In
determining the amount of damages, the court has the power to take into
account the property status of an individual, the fact of enrichment, the
degree of guilt, the nature of criminal punishment and other material
circumstances relevant to the resolution of a particular case.
From that moment the practice of application of the legal
approaches expressed by the Constitutional Court of the Russian Federation
began to take shape.
Less than a month after the RF Constitutional Court ruling
was adopted, the Federal Tax Service prepared Letter
No. CA-4-18/45@ dated 09.01.2018, which gave a restrictive interpretation of
the Court's legal position.
Despite the fact that the Federal Tax Service explicitly
speaks about the exclusivity of this mechanism of tax collection, about its
application only with regard to strictly defined purposes and adequacy
requirements, despite all this, the position set forth in the letter speaks
about leveling of the principles that the RF CC wanted to convey.
Thus, according to the FNS:
- Conclusions
of the Constitutional Court of the Russian Federation on the need to prove
the corpus delicti of a civil offense, the need to investigate all the
circumstances concerning the tort in a separate trial - do not apply to
cases of consideration of a civil claim simultaneously with the verdict in
a criminal case, as well as in the presence of an effective court
sentence, as in these circumstances the rules of prejudice apply;
- The
grounds that indicate the exhaustion of mechanisms provided for by tax
legislation to satisfy tax claims include the absence of legal or factual
grounds, or a sufficient evidentiary basis for the collection of debts
from other persons. At the same time, the tax authority is not obliged to
prove the absence of such grounds, as otherwise it would be obliged to
prove a negative fact;
- If
to the guilty person the kind of punishment not connected with
imprisonment is applied, it is necessary to involve him to compensation of
the caused harm in full volume;
- Absence
of evidence of direct or indirect enrichment (benefit) of the cause of
harm - cannot serve as a basis for exemption from tort liability;
- It
is only possible to reduce the liability of a particular person, based on
the degree of fault, by attributing the remainder of the liability to
another culpable person;
- If
the person acted willfully, it is inadmissible to reduce the amount of
compensation for damage even taking into account the property status of
the person;
- Although
the fine is not included in the amount of damages to be recovered from an
individual, but in relation to other mechanisms of civil law regulation,
the tax authorities have the right to make claims against these
individuals for the fine as damages in favor of the debtor - a legal
entity in accordance with the provisions of Article 61.20 of the Bankruptcy Law.
Judicial practice of the last 6 years shows that the claims
of prosecutors and tax authorities, representing the interests of public legal
entities in civil proceedings, to recover tax arrears and penalties from
individuals who have committed crimes of non-payment of these mandatory
payments to the budget by the organization - such claims are satisfied in most
cases.
However, the number of such civil cases is not very large.
Most likely, the exclusivity of this mechanism, as noted in the letter of the
Federal Tax Service, as well as the development of the practice of bringing
controlling persons to subsidiary liability, have an impact. This tool is most
convenient for the authorized bodies due to the presumptions and other
procedural features established by the Bankruptcy Law (for example, the right
to apply for subsidiary liability outside the bankruptcy case established by Article 61.19 of the Bankruptcy Law).
And yet it is premature to say that the mechanism of
Articles 15 and 1064 of the Civil Code of the Russian Federation may soon fade
into oblivion. After all, on February 9, 2024, the Federal Tax Service issued
another Letter No. D-5-18/23@, which almost exactly duplicates the
above letter of January 9, 2018.
The reissuance of this letter confirms the relevance of the
approaches of the Federal Tax Service. It is also possible that there was an
intention to eradicate incorrect actions by tax authorities in practice when
replenishing the budget through the application of Articles 15 and 1064 of the
Civil Code of the Russian Federation.
Thus, at the end of last year, the Constitutional Court of
the Russian Federation also had to correct distortions in law enforcement
practice. In one of the cases, it recalled that the liability of an
organization in the form of a tax penalty cannot be transferred to individuals,
including by way of bringing them to subsidiary liability (Resolution
No. 50-P of 30.10.2023).
It should be concluded that the collection of taxes from individuals criminally liable for tax crimes will be applied in the future, but it is unlikely to become widespread.
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