The Ministry of Justice proposed amendments to the bill on criminal liability for false invoices

The bill on criminal liability for the sale and submission of knowingly false invoices and tax returns for the illegal receipt of deductions is proposed to be clarified for the second reading – the Ministry of Justice submitted a draft amendment to the government. Among them is a clarification that the new article applies if there are no signs of fraud or tax evasion. Experts agree on the need to separate the liability of “platformers” who sell false invoices and declarations, and their buyers, for whom articles on fraud and tax evasion are already provided. However, the amendments of the Ministry of Justice are unlikely to solve the problem.

As it became known to Kommersant, the Ministry of Justice sent to the government a draft amendment to the bill on the introduction of a new article 173.3 in the Criminal Code “Sale or submission to the tax authorities of knowingly false invoices and tax returns.” The bill was approved by the State Duma in the first reading (see “Kommersant” dated December 22, 2022) and is aimed at combating the so-called paper VAT – a fictitious purchase of goods and services, due to which input VAT is increased on paper. False according to it are invoices and declarations drawn up using nominees or with the illegal use of personal data and containing deliberately false information. For their sale or presentation in the event of causing major damage to citizens and organizations or receiving large income (from 2.25 million rubles), they will face up to four years in prison with a fine in the amount of income for six months. If we are talking about an organized group or a particularly large income (from 9 million rubles) – up to seven years with a fine in the amount of five years of income.

The amendments of the Ministry of Justice provide for an important clarification: art. 173.3 will only apply if there are no indications of fraud or tax evasion. The wording of the article is also corrected. If it is now referred to as “selling and/or submitting fraudulent invoices and tax returns”, then a distinction is suggested: “selling or submitting fraudulent invoices or tax returns”. This is apparently due to the government’s response, which indicated that the current version does not allow “to assign an independent criminal punishment – in relation only to an invoice or a tax return.” In addition to citizens and organizations, the number of persons who may be harmed includes the state. In the White House, Kommersant confirmed the receipt of the amendments, in the Ministry of Justice – that the position of the department regarding the amendments was sent to the interested state bodies.

As Ekaterina Avdeeva, head of the expert center for criminal law policy at Delovaya Rossiya, notes, the center “comprehensively supports the amendments – we are talking about developing legislation that is loyal to real business, taking into account the balance of private and public interests.” MEF Legal Partner Alexander Erasov recalls that the bill has worried businesses: the current wording of the new article allows it to be applied not only to sellers of “paper VAT”, but also to buyers – entrepreneurs, who are already criminalized for tax evasion (Article 199 of the Criminal Code ) or fraud.

At the same time, adds Vadim Zaripov, head of the analytical service of the law firm Pepeliaev Group, if the article on fraud is as strict as the proposed article. 173.3, in the case of tax evasion, there is a special procedure for initiating cases, a significant criminal threshold, exemption from liability in case of compensation for harm and a ban on detention – “without clarification, the investigators could apply the new article much more actively.”

In general, Alexander Erasov sees in the amendments an attempt to “find a balance in order to punish the “site owners”, and not the buyers”, but, “to put it mildly, faulty” – the article needs to be finalized so that it cannot be used for additional pressure on business. In particular, he explains, the inclusion of a reference to damage to the state may be an “additional argument” for the application of Art. 173.3 to taxpayers – for example, if evasion does not pass the criminal threshold. Ekaterina Avdeeva also agrees with the redundancy of indications of damage to the state, with the proviso that this issue is debatable. However, Vadim Zaripov adds, the “conflict clause” may deprive the new article of its meaning, since “there will always be signs of complicity in evasion or fraud among the “platformers” who sell fake invoices” and the suspect in such a case can point to them, to take advantage of the guarantees provided for in Art. 199 of the Criminal Code “for entrepreneurs, and not for criminal business dealers.”

Evgenia Kryuchkova