Quickly paid is not considered stolen – Newspaper Kommersant No. 197 (7398) of 10/24/2022

The Constitutional Court will decide whether the tax deducted from the stolen funds should be included in the amount of damages. The reason for the consideration of the case was the request of the Pacific Military Court, which believes that the money transferred to the budget is not considered stolen. There is no unequivocal answer to this question, the expert believes: the only question is what the Constitutional Court considers more priority for the purposes of criminal liability – legal or actual receipt of funds.

The Constitutional Court will check Note 1 to Article 158 of the Criminal Code (theft) – in the part that allows you to include in the total amount of theft the amount of personal income tax withheld from the perpetrator, according to the website of the court. The reason for checking the criminal law was the request of the Pacific Naval Military Court, which does not agree with the decision of a higher authority and asks the Constitutional Court to put an end to the dispute.

Last year, the Pacific Court considered as an appeal the case of a serviceman Ivan Anokhov, who, on the basis of a fake certificate of a master of sports, for some time received an increase in salary, thus “earning” a total (before taxes) of 545 thousand rubles. The Vladivostok garrison military court found Mr. Anokhov guilty of fraud and sentenced him to a fine of 400 thousand rubles, but the Pacific Court reviewed this decision and reduced the amount of damage caused to the state by 70,897 rubles, which were withheld from the accrued income tax individuals. At the same time, the court proceeded from the fact that the fraudster did not receive this money and could not dispose of it, they remained in the budget, and therefore, the state was not damaged. As a result, the Pacific Court almost halved the amount of the fine awarded, to 250,000 rubles.

However, the military court of cassation did not agree with this decision, canceled the verdict, and returned the case to the Pacific Fleet Military Court. The court of cassation came to the conclusion that the amount of damage should be determined based on the amount of the accrued allowance – it was this amount that the Ministry of Defense missed, and the tax was withheld from income already received (including illegally). However, the Pacific Court is ready to argue with this approach: in its request, it recalls that the crime is recognized as completed from the moment the property passes into someone else’s possession. Since the maintenance of the serviceman was allocated from the budget, and the withheld tax was returned there, in fact, such a transition did not occur. The relevance of the issue, noted in the request, is confirmed by conflicting judicial practice: the courts either exclude the amount of tax collected from the amount of theft, or refuse to do so. Here it is necessary to finally achieve legal certainty, the naval court insists.

There is no unequivocal answer to the question posed yet, Vadim Zaripov, head of the analytical service of Pepeliaev Group, confirms. On the one hand, he notes, one cannot say that a person received income for the amount net of tax: income was received for the entire amount accrued to him, with which his personal tax was paid through a tax agent. In addition, the payment was made from the federal budget, and personal income tax is credited to the regional budget, that is, it cannot be considered that this is some kind of one big “pocket,” the lawyer argues. The Budget Code establishes the principle of independence of budgets, so these are different “pockets” belonging to various public entities: the federal budget – the Russian Federation, the regional budget – its subject. It turns out that, in fact, the seizure took place from the possession of the federal center, and in part of the amount of tax was transferred to the possession of the region, Mr. Zaripov points out. Therefore, in his opinion, it cannot be said that the federal budget has not suffered in terms of tax.

On the other hand, the expert notes, the person actually did not receive property for this amount in his possession. This circumstance cannot be ignored, at least when evaluating the act as completed, and also as a mitigating circumstance. It turns out the incident, which the Constitutional Court decided to deal with: the property was removed from the possession of the legal owner, but in some part it landed unjustifiably to another owner, and not to the guilty person, Vadim Zaripov states. “The court will have to decide what to consider as a priority for the purposes of criminal liability – legal or actual receipt,” the lawyer concludes.

Anastasia Kornya