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.