An article will be issued to invoices – Newspaper Kommersant No. 238 (7439) dated 12/22/2022
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To combat the illegal receipt of VAT deductions, a draft law has been submitted to the State Duma establishing criminal liability for the sale and submission of knowingly false invoices and tax returns. According to the tax authorities, now the volume of illegally issued deductions is estimated at 1 trillion rubles. per year – while the current laws do not allow law enforcement officers to identify the organizers of sites selling fictitious documents. Lawyers agree with the need to criminalize such acts, but warn that in the version presented, the bill also poses a threat to honest business.
A group of deputies from the United Russia and LDPR factions submitted a bill to the State Duma on introducing a new article into the Criminal Code – 173.3 “Sale and (or) submission to the tax authorities of knowingly false invoices and tax returns.” Amendments to the Criminal Code were proposed in order to combat the scheme of illegal tax optimization – with the so-called paper VAT. This is a fictitious purchase of goods and services, due to which the input VAT is increased on paper. To do this, the statutory documents of companies registered as nominees are purchased, and false invoices and tax returns are made on their behalf. The organizers of such activities, as stated in the explanatory note to the project, take 2-3% of the amount of fictitiously confirmed tax deductions for this. It also states that, according to the Federal Tax Service, in 2021, deductions of about 1 trillion rubles were illegally issued in this way.
According to the draft, invoices and declarations drawn up with the use of nominees or with the illegal use of personal data, as well as containing deliberately false information (for example, about the shipment of goods), will be recognized as false. For the sale or provision of such documents to the tax authorities, if this caused major damage to citizens and organizations or led to a large income (from 2.25 million rubles), at best, a fine of 100 thousand to 300 thousand rubles is threatened. , at worst – up to four years in prison with a fine in the amount of six months’ income. If the crime was committed by an organized group or led to the receipt of a particularly large income (from 9 million rubles), then up to seven years with a fine in the amount of five years of income.
The need for changes is explained by the fact that the absence of a special rule does not allow carrying out operational-search measures to identify activities for the manufacture and sale of false invoices – “until the real taxpayer uses fictitious deductions.” However, even then, the authors of the project explain, it is difficult to document the connection between the organizers of the fictitious document flow and the taxpayer, since the sale of documents is carried out through a chain of intermediaries.
The government and the Supreme Court, as follows from their opinions on the project, generally supported it – subject to revision. Vadim Zaripov, head of the analytical service at the law firm Pepeliaev Group, emphasizes that the proposed article is not aimed at taxpayers who want to evade taxes (Article 199 of the Criminal Code provides for them, under which the sanctions are softer), but at those who create fictitious invoices . “This is a criminal business, mostly of former cashiers, which can be called highly profitable, technologically advanced and almost risk-free,” the expert says. Taxology partner Alexei Artyukh adds that tax and law enforcement agencies are reluctant to search for the organizers of such “platforms”, only when it is already impossible not to notice the scale of their activities, which is also due to the lack of a liability rule. Ekaterina Avdeeva, head of the Delovaya Rossiya Criminal Law Policy Expert Center, notes that the project can provide guarantees for conscientious entrepreneurs: the number of business calls received by the call center related to the illegal use of their data in the preparation of forged documents has increased.
According to Alexander Erasov, a partner in the tax practice of MEF LEGAL, a similar project was already submitted to the State Duma in the spring. Then he did not receive a positive opinion from the government and was rejected by the business community due to concerns about unreasonable pressure on business. The new language, the lawyer says, partly reduces such risks, but there is still concern that their application may be formal and accusatory. Vadim Zaripov agrees with this: the bill is needed, but it needs to be finalized – in particular, it is necessary to exclude from the article the actions to provide tax returns, since this creates threats for those who even unintentionally submitted such unreliable documents. Also, referring to false invoices that contain deliberately false information about the shipment of goods (instead of their absence) allows us to understand anything by this wording – erroneous documents can lead to criminal prosecution of a wide range of people.
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