Penalty only for yourself – Newspaper Kommersant No. 32 (7477) of 02/21/2023

On Monday, the Government Commission on Legislative Activities approved amendments to the Criminal Code aimed at mitigating punishment for tax crimes: entrepreneurs are guaranteed that if all arrears and penalties are paid, they will not be held criminally liable. Also, the terms of prosecution for tax evasion should be significantly reduced: they will actually be equated with the terms of storage of reporting documentation. Such concessions were promised by President Vladimir Putin to business a year ago, but the implementation of his instructions was delayed due to disagreements between departments. The expert says that the completion of work on the bill is very good news, which is eagerly awaited.

On February 20, the RF Government Commission on Legislative Activities approved amendments to the Criminal Code (CC) aimed at liberalizing criminal liability for crimes related to tax evasion. As expected, the Cabinet of Ministers should approve it on Wednesday at the next meeting, after which the bill will be submitted to the State Duma. This was reported to Kommersant by a source in the government.

The bill, which Kommersant got acquainted with, obliges the investigator to issue a decision to refuse to initiate a criminal case or to stop the one already initiated if the entrepreneur pays the arrears and the corresponding penalties. In addition, the statute of limitations for criminal liability under the relevant articles of the Criminal Code is reduced from ten to six years. To do this, the authors of the bill propose to reduce the amount of the maximum sanction for tax items: under Art. 199-199.2 of the Criminal Code – from six or seven to five years in prison, and under Art. 199.4 – from four to three years. Thus, they move into the category of crimes of small and medium gravity, and for them the statute of limitations is lower.

The explanatory note to the bill specifies that it was developed in pursuance of the presidential order issued in April last year “in order to reduce the negative consequences for the Russian economy in modern conditions.” According to a Kommersant source in the government, the development of the amendments was delayed due to disagreements between the Ministry of Justice (it acted as the main executor), on the one hand, and the Ministry of Finance and the Investigative Committee of Russia (TFR) on the other.

These departments feared that the proposed reduction in the statute of limitations would make it virtually impossible for non-payers to be prosecuted in situations where the amounts of damages caused are significant. Indeed, in these cases, an on-site tax audit is carried out within a time frame as close as possible to the maximum allowable (three years preceding the year of the audit). In addition, the decision of the tax authority must still come into force, on its basis a demand must be sent, the execution of which is given two months, and all this can take up to five years. Therefore, there is a risk that in complex and confusing cases, one year left before the expiration of the statute of limitations for criminal liability may simply not be enough to investigate a crime, consider a case by a court and pass a sentence, feared the Ministry of Finance.

As an alternative, the TFR and the Ministry of Finance proposed simply raising the minimum amount of damage, for which the maximum sanction is now provided, from 45 million to 100 million rubles. However, according to the results of interdepartmental conciliation procedures, this option was turned down – as contrary to the solution of the task set by the president to reduce administrative pressure on business, a Kommersant source said.

This is very good news, says Vadim Zaripov, head of the analytical service at Pepeliaev Group. He recalls that business has been waiting for these amendments for more than a year: the president gave the corresponding instruction at a meeting with the Business Russia organization in February 2022.

It can be difficult for entrepreneurs to prove their good faith seven or eight years later, Yekaterina Avdeyeva, head of the Delovaya Rossiya expert center on criminal law policy, told Vladimir Putin at the time. “The tax authority now sees violations almost in real time, and ten years seems to be an excessive period in order to identify and investigate. Maybe it’s not worth punishing an entrepreneur for past periods just because his counterparty didn’t keep documents beyond the deadline? And the collection of tax arrears should not go into the criminal-legal plane, Ms. Avdeeva insisted.

The President, commenting on her speech, admitted that he had previously “somehow not paid” attention to this problem, but “always proceeded from the fact that this goes without saying, this is within the framework of common sense.” “If the debt is repaid, then what is the point of starting a criminal case and prosecuting people, creating problems at work?” he wondered. As for the terms of keeping documents and the statute of limitations, “six and ten years is a clear discrepancy,” and something needs to be done about this, the head of state said: “I don’t want to say now how this should be resolved, but it needs to be resolved , I agree ”(quote from the official website of the Kremlin).

Now the deadlines for investigators will practically coincide with the requirements for storing documents that the Tax Code imposes, explains Vadim Zaripov: six years for the statute of limitations and five years for documents, now the gap between them reaches five years. In addition, now taxpayers can count on the fact that in case of payment of all additional accrued payments, criminal proceedings will not be initiated against them. “Now in 95% of cases this is what happens, but sometimes we still encountered the fact that people, having received a demand, pay, but cases against them are still initiated. Of course, this greatly reduces the motivation to satisfy all the requirements of the tax,” the lawyer notes. Finally, the amendments remove the gap that still existed between large and especially large amounts of arrears, Mr. Zaripov adds. Now the damage is up to 45 million rubles. within three financial years, it is considered a crime of minor gravity, and if at least a ruble is more than 45 million, then it immediately goes into the category of serious ones. If the government bill is adopted, this category of crimes will move into the category of moderate cases, the expert notes.

As for the fears of the Ministry of Finance regarding the reduced terms of prosecution, such terms will encourage the tax authorities not to delay inspections and make decisions based on their results, as is often the case, Vadim Zaripov is sure, otherwise they will lose a convenient “criminal-fiscal cudgel” for knocking out tax debts. And it would be ideal if similar restrictions were also extended to cases of customs evasion, the lawyer concludes.

Maria Makutina, Anastasia Kornya