Investigators will be asked not to rush – Newspaper Kommersant No. 65 (7510) dated 04/14/2023

The Prosecutor General’s Office has published a draft order, which may provide some clarity on the question of what tax authorities’ materials investigators can use to initiate criminal cases under tax articles. When exercising prosecutorial supervision, it is prescribed to proceed from the fact that the reason for initiating a case is only materials sent under a special procedure – when the arrears were not repaid within the prescribed period. Now, they say in business associations, situations are not uncommon when cases are started earlier – already on the basis of information exchange with the tax authorities.

The draft order published by the Prosecutor General’s Office on the implementation of supervision over the implementation of legislation in the tax sphere concerns, among other things, the procedure for initiating criminal cases for tax crimes. This topic has become problematic for Russian business. Let us explain that in 2022, the procedure for initiating cases by investigators that was in force in 2011–2014 was returned only on the basis of materials sent to them by the tax authorities. The procedure for the transfer of materials is fixed in Art. 32 of the Tax Code (TC): if within 75 days after the entry into force of the decision to hold liable based on the results of a tax audit, the arrears were not paid off, the tax authorities are required to send materials to the investigating authorities.

However, practice has shown that there is a shorter way. provided by Art. 82 of the Tax Code, information exchange between state bodies on violations and measures to suppress crimes allows you to quickly send information to the investigating authorities – and they are also used to initiate cases. In this regard, the draft order emphasizes that prosecutors, when exercising supervision, should proceed from the fact that only materials sent under Art. 32 NK.

Business Ombudsman Boris Titov draws attention to the fact that the practice of sending materials before the decision to prosecute comes into force and before the expiration of the voluntary repayment of arrears creates grounds for excessive pressure on business. At least because the higher tax authority can still reduce the arrears to an amount that “does not reach” the threshold of criminal liability.

The RSPP “Kommersant” confirmed the existence of a problem of initiating cases on materials transferred before the expiration of the deadlines provided for in Art. 32 NK. “Several such cases are already known – both in Moscow and in the regions,” said Alexander Varvarin, Vice President for Legal Regulation and Law Enforcement of the RSPP. According to Ekaterina Avdeeva, a member of the General Council of Delovaya Rossiya, to solve the problem, it would be expedient to establish a guaranteed minimum term for paying arrears.

According to Oleksandr Yerasov, partner of the IEF LEGAL, although when editing the Code of Criminal Procedure it was assumed that cases would be initiated only based on the results of tax audits, the changes were worded in such a way that they left a loophole for law enforcement agencies: the Code of Criminal Procedure does not say anything about tax audits and direct references to Art. 32 NC no. And, since the code contains provisions on information exchange, legal uncertainty has arisen: is it permissible to initiate cases based on materials obtained through such a procedure. In this regard, business asked the authorities to specify the provisions of the Code of Criminal Procedure and give official explanations – the appearance of the draft order of the Prosecutor General’s Office is connected with the fulfillment of this wish.

Vadim Zaripov, head of the analytical service of Pepeliaev Group, notes that the draft order does not concern tax authorities, but investigators who consider the data received as part of the information exchange as materials for resolving the issue of initiating a case. Although prosecutors have mechanisms of influence through prosecutorial response measures and it depends on them whether the case will be taken to court, the presence of an order, in his opinion, does not guarantee full compliance with the procedure prescribed by law – only a joint letter from the Federal Tax Service and the TFR can finally close this issue. But, according to Alexander Erasov, “the appearance of an explanation will help solve the problem, since it will show the legal position of the supervisory authority.” The partner of the Criminal Defense Firm, Anna Golub, agrees with this – she recalls that the prosecutor has the right to cancel the decision to initiate a case if it was made illegally.

Evgenia Kryuchkova, Diana Galieva