UDC 343.98

SCHEMES OF COMMITTING FRAUD INVOLVING VALUE ADDED TAX REFUND

V. S. Belokhrebtov

Schemes of fraudulent reimbursement of value added tax are considered. A classification of methods for committing fraud when refunding VAT is given. It is concluded that there is a need for further research into schemes for committing fraud in the field of VAT refunds in order to timely identify, disclose and suppress this type of crime.

Key words: fraud, fraud in the reimbursement of value added tax; value added tax refund fraud scheme.

Value added tax (VAT), being one of the most important economic instruments for regulating market relations, has a significant impact on solving government tasks to ensure balanced budgets and create guarantees for the development of the institution of entrepreneurship. At the same time, the current legislation in Russia leaves the possibility of using numerous methods of unfair compensation, which negatively affects the protection of the interests of the treasury.

The main industries (areas of economic activity) in which attempts were made to commit fraudulent actions when refunding VAT are most often the following: geology, drilling operations; commercial activities related to the rental of real estate; cargo transportation; repair work; timber processing industry; sales of oil and its refined products; publishing and printing activities; provision of intermediary services in the field of trade; wholesale purchase of goods on the domestic market of the Russian Federation and its sale under foreign economic contracts; activities in the field of accounting.

This crime is characterized by the constant “updating” of fraudulent VAT refund schemes using sophisticated secrecy measures. Highly qualified tax consultants who have thoroughly studied tax and criminal legislation work on the development and organization of fraudulent VAT refund schemes, the application of which allows the organizers and executors to be guaranteed to receive funds from the budget and not be held accountable. The variety of types of criminal schemes indicates that without a clear understanding of the main schemes it is impossible to stop this type of fraud at the initial stages of its commission. The most common fraud schemes are the following:

1. Schemes for committing fraud with VAT refunds for exports, based on the application of a 0% rate.

1.1. False export, in which goods intended for export are not actually exported from the territory of the Russian Federation, but are sold on the domestic market for cash; in this case, a package of fictitious financial documents is created for an allegedly completed export transaction. In most cases, this fraud scheme involves the creation of shell companies, specially registered for the sole purpose of obtaining a tax deduction; fictitious founders, fake seals, mass registration addresses are revealed in the process of considering the dispute.

1.2. Export of goods from the territory of the Russian Federation accompanied by false declaration. This fraudulent VAT refund scheme involves the implementation of actual deliveries of goods within the framework of a concluded export transaction when the cargo crosses the border of the customs union, but the exported goods are declared either at many times inflated prices or with a significant overstatement of volumes, for which the products are passed through a number of counterparties, and their the cost increases on average 10 times, as does the amount to be reimbursed. All other actions of criminals are similar to the first scheme. It should be noted that currently the scheme to inflate the cost of goods for export through the supply chain is considered unsafe and easy to open.

More complex are VAT refund schemes implemented based on the results of export operations related to the movement of goods across the customs border of the Russian Federation, accompanied by other fraudulent actions, for example with a substitute product, when another is exported under the guise of a certain product, as well as by “doubling” the product, when goods are exported, and similar documents for reimbursement are submitted to different tax authorities with distorted data by two and sometimes three different legal entities that are not affiliated with each other. Such schemes include:

2. Schemes for illegal VAT refunds for transactions concluded on the domestic market in relation to certain goods and services.

2.1. Artificially inflating the taxpayer’s costs when purchasing goods, works and services (the so-called cost scheme) by:

Falsification of documents reflecting the purchase from a formally controlled organization of goods, works or services that do not actually exist (non-commodity scheme);

Falsification of tax and accounting records for work performed on one’s own or services provided, which were allegedly performed by a false subcontractor who is controlled by a formally legitimate organization (subcontracting scheme).

2.2. Artificially inflating the taxpayer's costs by providing documentary evidence for false business transactions when the taxpayer sells goods. For example, by creating the appearance of entrepreneurial trading and purchasing activities, accompanied by the reflection of fictitious costs for products, it allows

Let us derive the difference between the “input” and “output” VAT for transactions of companies participating in the scheme (“circular scheme”). Often, one of the essential conditions of such agreements is a deferred payment, which does not allow tax officials, at the time of conducting a desk audit of a declaration with a declared right to a tax refund, to check the actual receipt of funds into the organization’s account. To mislead tax authorities about the reality of business transactions, criminals submit tax returns with insignificant amounts of tax payable to the tax office within 3-6 months before committing the theft. Thus, fraudsters eliminate one of the main signs of an unscrupulous taxpayer - the provision of “zero” declarations in the process of carrying out business activities.

2.3. Conclusion of a lease agreement by an organization (enterprise, institution) with itself. An organization that has switched to taxation under the Unified Agricultural Tax, acting simultaneously both as a legal entity and as a participant in a simple partnership, leases the object to itself. As a lessor, an organization (enterprise, institution) deducts VAT on purchased work and materials, and as a lessee, it reimburses VAT paid on rent.

2.4. Using the “commission agreement” scheme. The goods that are actually missing according to documents are repeatedly resold between a chain of intermediaries, after which its remains are allegedly transferred for sale to a commission agent, whose exact data is not known, and VAT is claimed for compensation on the cost of the goods “purchased” by the last buyer. Payment for the goods is not made due to the condition stipulated in all contracts for a significant deferment of payment.

2.5. Scheme of illegal VAT refunds on advances paid to suppliers. When applying an illegal VAT refund scheme for advances paid to suppliers, funds are transferred from the account of one organization through a chain of counterparties, including fly-by-night companies, as partial payment for upcoming deliveries of goods (work, services), while real movement goods (work, services) are not carried out. The supplier organization, which acts as the final link in this scheme and is a fly-by-night company, does not calculate or pay VAT to the budget when receiving funds as an advance. The result of applying this scheme is an illegal VAT refund and the withdrawal of funds by transferring from the account of a fly-by-night company (one-day companies of the next link) to the accounts of foreign organizations and/or to plastic cards of individuals.

2.6. A scheme for illegal VAT refunds when goods are accumulated in a warehouse. The scheme for illegal VAT reimbursement when goods accumulate in a warehouse consists of organizations creating fictitious document flow in the absence of real movement of goods (purchase, transportation

goods, transferring them for safekeeping). An organization acting as a buyer declares a VAT deduction on purchased goods and, through fictitious document flow, creates the appearance of further sales. In this case, only a small part of the previously purchased goods is fictitiously sold.

3. Scheme of illegal VAT refunds on transactions in the domestic market, taxed at a reduced 10% rate, when purchasing goods, works, services, fixed assets for one’s own needs, as well as fraud by entrepreneurs who are not VAT payers, due to transfer to payment taxes under a special tax regime (UTII, simplified tax system, unified agricultural tax, etc.). At the same time, since 2013, according to tax authorities, fraudsters most often use real estate transactions to illegally refund VAT.

3.1. VAT refund if there is no revenue. The company buys expensive equipment for sale, and the VAT return declares a refund from the purchased products. Fraudsters draw up fictitious documents for the purchase of expensive equipment, as well as documents confirming the acceptance of this equipment for registration by an organization (enterprise) as a fixed asset. The scammers then contact the tax office for a VAT refund.

3.2. A scheme for illegal VAT refunds on the resale of real estate with a significant increase in value. Illegal VAT reimbursement is achieved through coordinated actions of a group of interdependent persons to imitate purchase and sale transactions of a real estate property, which results in a multiple unjustified increase in the price of the property.

4. Fraud schemes for VAT refunds using the application procedure and filing a clarifying declaration.

4.1. Issuance of an opinion by the tax authority on a tax deduction without verification. The conclusion of the department of desk audits when processing a tax deduction for an amount of less than 3 million rubles is given without verification, since in these cases it is not necessary to report to a higher authority, the commission of a constituent entity of the Russian Federation, which usually makes a decision on a tax refund. Such amounts are considered insignificant and are not included in general statistics, which is what scammers take advantage of.

4.2. Submission of updated tax returns. During the period of the desk audit, fraudsters submit to the tax authority an updated declaration for the same tax period, but with an insignificant amount to be reimbursed or with zero reimbursement. In this regard, the verification of a previously submitted declaration in accordance with the law is terminated. Subsequently, the unscrupulous taxpayer applies to the tax authority (or to the court) with a demand to reimburse the VAT in the original amount, motivating his position by the fact that he did not submit the updated declaration, and the signature on it does not belong to the head of the organization, the seal imprint on the updated declaration also does not coincide with seal of the organization. In this case, the arbitration court may consider this circumstance not to interfere with the exercise of the right to

compensation.

4.3. Repeated VAT refund on transactions for which a deduction has already been provided. The use of fraudulent actions when submitting applications for VAT refunds: the application is submitted by an unidentified person; a non-existent current account or an account of another organization is indicated; false identification documents of the person submitting the application are presented, etc.

5. Fraud in VAT refunds when exercising the right to appeal a decision of the tax authority and using the rules of judicial prejudice. If the tax authority refuses a VAT refund, the applicant has the right to appeal the decision of the tax authority in an arbitration court; often in such cases, decisions are made in favor of the plaintiffs. According to the wording of Article 90 of the Code of Criminal Procedure of the Russian Federation dated December 29, 2009 No. Z8Z-FZ, the circumstances established by a verdict that has entered into legal force or another decision of an arbitration court that has entered into legal force are recognized by the court, prosecutor, investigator, inquirer without additional verification. If this rule is formally followed, the decision of the arbitration court on VAT refund in favor of the taxpayer must be accepted unconditionally. In such a situation, when the investigator receives inspection material containing contradictory information (the results of the operational investigation, indicating that a person is guilty of committing fraudulent actions, and the decision of the arbitration court in his favor), the investigator must make a decision to refuse to initiate a criminal case. In this case, the decision of the arbitration court will act as an “indulgence” for the taxpayer.

An analysis of investigative and judicial practice suggests that most shell companies used to implement a criminal plan are controlled by third parties providing services for illegal cash withdrawals, and only in rare cases are they created by the management of a fraudulent taxpayer. When using formally legitimate structures dependent on taxpayers in calculations, it is relatively easier to resolve the issue of evidence of the coordination of criminal actions, which in other situations seems quite difficult.

Persons intending to steal funds from the federal budget, as a rule, register the organization under the name of citizens from disadvantaged families who are registered as drug addicts or do not have a permanent place of residence. Next, the attackers open a current account at a credit institution with the connection of the “Bank-Client” remote use system. Then they enter into contracts for the supply of inventory items with front companies, often located in other regions, using a power of attorney on behalf of the “head” of the organization.

Opposition from tax authorities forces fraudsters to migrate to other regions: hundreds of cases of re-registration have been recorded

enterprises included in the so-called risk zone. To prevent such actions, the tax department launched the “Stop Migrant” program.

Deputy Head of the Department for Supervision of Criminal Procedural Activities of the Department of Internal Affairs and Justice of the Prosecutor's Office of St. Petersburg Vasily Shilin gives an example of positive interaction between authorities in countering fraudulent VAT refunds from the budget. The St. Petersburg Prosecutor's Office developed and subsequently enshrined in a joint order an algorithm for interaction between regulatory, law enforcement and prosecutorial authorities, the implementation of which in practice made it possible to reduce the volume of unjustified VAT refunds. In accordance with this order, information from the tax authority in the form of a reasoned notification is provided to the city prosecutor's office, which includes the organization and information about it in the list of enterprises belonging to the risk zone, and forwards it to the internal affairs bodies for inspection in accordance with Art. 144-145 Code of Criminal Procedure. In this case, the progress of the inspection is placed under special control. Thanks to this, even before the tax authority makes a decision, a simultaneous, including joint, verification of the validity of the stated requirements is carried out by the tax inspector within the framework of the Tax Code, and by police officers - within the framework of the Code of Criminal Procedure. By involving employees of internal affairs bodies and taking preventive measures even at the stage of checking the declaration, the likelihood of making a decision on tax refunds for those organizations whose fraudulent nature of activities, although obvious, has not been formally proven, is reduced.

The purpose of such a mechanism is not only to bring fraudsters to justice, but also to eliminate the very possibility of theft of budget funds; for this purpose, the specified joint order provides for the procedure for taking interim measures within the framework of a criminal investigation.

Preventing the theft of budget funds should be facilitated by joint inspections, as well as timely exchange of information with credit institutions, divisions of the Federal Service for Financial and Budgetary Supervision, the Central Bank of the Russian Federation, and MRU Rosfinmonitoring in terms of suppressing facts of money laundering and theft of budget funds.

Certain activities of the St. Petersburg Prosecutor's Office are aimed at organizing joint activities with regulatory authorities to identify credit institutions that commit violations that entail the revocation of a license to carry out banking operations. These include inspections of banks’ compliance with the requirements of the Federal Law of August 7, 2001 “On Combating the Legalization (Laundering) of Proceeds from Crime and the Financing of Terrorism” as well as legislation on currency regulation and exchange control, intensifying the practice of credit institutions using the right of refusal concluding a bank account agreement, its termination if legal entities violate the essential terms of the agreement.

Measures have been taken to establish, in cooperation with the tax authorities, claims work to compensate for damage caused by crimes in this area to the interests of the state, including improving the practice of applying the consequences of the invalidity of a void transaction (Articles 169 and 170 of the Civil Code).

Together with the government of St. Petersburg, the city prosecutor's office created a joint working group to submit proposals to the legislative body on the implementation of the right of legislative initiative in terms of introducing changes to the Tax Code of the Russian Federation that would eliminate the possibility of abuse when refunding VAT amounts. Ways to eliminate gaps in legal regulation by law enforcement practice have already been worked out: tax amounts can be mandatory counted against future tax payments or accumulated in special accounts that have a limited legal regime. And this is only a small part of the possible methods for solving the problem.

This article examines only some of the most common fraud schemes for VAT refunds. The study of fraud schemes for VAT refunds requires further in-depth research, since only being armed with knowledge about the criminal schemes of fraudsters will allow timely identification, disclosure and suppression of the actions of criminals.

An important fact in the successful study of fraudulent schemes for VAT refunds and, as a consequence, the successful identification, disclosure and investigation of this category of cases are examples of interdepartmental cooperation. The positive experience of St. Petersburg can be considered as a model for an algorithm for interaction between regulatory, law enforcement and prosecutorial authorities, which will reduce the volume of unjustified VAT refunds.

Bibliography

1. Shilin V. Counteraction to the acquisition of rights to budget funds through illegal VAT reimbursement // Legality. 2013. No. 11.

2. An elegant way to refund VAT // Taxes. 2012. No. 45.

3. Criminal Procedure Code of the Russian Federation: Feder. Law of December 18, 2001 No. 174-FZ (as amended on February 3, 2015 No. 7-FZ) // Collection of legislation of the Russian Federation. 2001. No. 52 (part I). Art. 4921.

4. Semenchuk V.V. Prejudice and illegal reimbursement of VAT from the budget // Russian Legal Journal. 2014. No. 1.

Belokhrebtov Vadim Sergeevich, adjunct of the Federal State Educational Institution of Higher Professional Education, [email protected](Russia, Irkutsk, East Siberian Institute of the Ministry of Internal Affairs of Russia).

SCHEMES OF FRAUD REIMBURSEMENT OF TAX ON VALUE ADDED

V.S. Belokhrebtov

The schemes fraudulent refund of value added tax. Classification of methods of committing fraud means for VAT refund. The conclusion about the necessity of further research schemes of fraud in the sphere of VAT refund in timely detection, disclosure and suppression of this type of crime.

Keywords: fraud, fraud upon the refund of value added tax; fraudulent scheme for reimbursement of value added tax.

Belokhrebtov V.S, adjunct of FSGEI of HPE (Russia, Irkutsk,Eastern-Siberian Institute of the Ministry of Internal Affairs of Russia)

EVOLUTION OF MEANS OF INDIVIDUALIZATION FOR INDIVIDUALS

R.I. Bodrov

The question of the formation and development of civil law institutions regulating the procedure and conditions for assigning a name to individuals, which, in accordance with current legislation, should be understood not only as the first name itself, but also as the surname and patronymic (except for cases provided for by law) is being explored. The author's conclusion is that a domain name should be qualified as one of the means of individualizing citizens.

Key words: first name, last name of a person, domain name, electronic signature, change of name, guardianship authorities, facsimile signature

The need to distinguish (individualize) each person not only by the external signs of his face and body has emerged since the formation of society. Historically, the main means of individualization of a person in society is a name, which at different times was understood as a person’s personal name, then a clarification of a person’s belonging to a certain clan, family (from the Latin familia - family) was added. For example, in the Roman Empire it denoted a community consisting of a family of masters and their slaves, i.e. a common name belonging to served as an external sign of their connection. It was inherited through the male line or acquired by strangers through their adoption. Often the acquisition of property was associated with the need to take on the name of the former owner. For example, the appointment of an heir or donee was subject to the condition of obtaining their consent to accept the name of the testator or donor.

Kasnitskaya Inna Yuryevna, Candidate of Legal Sciences, senior lecturer of the Department of Legal Training of Internal Affairs Officers, Tyumen Institute for Advanced Training of Employees of the Ministry of Internal Affairs of the Russian Federation, Tyumen [email protected]

Problems of implementing criminal liability

for illegal reimbursement of value added tax under the Criminal Code of the Russian Federation

Annotation. The article is devoted to the problematic issues of qualifying illegal reimbursement of value added tax in cases where the state budget becomes a source of theft of funds. The article examines the problems faced by law enforcement officers when suppressing attempts to illegally reimburse value added tax. Key words: value added tax, tax evasion, theft, illegal reimbursement.

The public danger of evasion of taxes and fees, that is, the deliberate failure to fulfill the constitutional obligation of everyone to pay legally established taxes and fees, lies in the non-receipt of funds into the budget system of the Russian Federation. As the most important source of generating revenue for budgets at all levels, tax payments play a critical role in stabilization economic and social situation in the country. Non-receipt of funds into the budget as a result of tax evasion leads to reductions in various social programs and other negative consequences.

No less dangerous in its consequences are activities related to the use of the tax system to withdraw funds from the budget under the guise of tax refunds. In this case, not only the established tax payments do not enter the budget system, but the state budget becomes a source of theft of funds. Russian officials admit that they do not have reliable data on the volume of illegal reimbursement of value added tax (hereinafter referred to as VAT). Illegal VAT refund is a complex economic and legal phenomenon. Its criminal legal characteristics include an analysis of a number of norms of criminal law that are closely related to the norms of tax, civil legislation and other branches of law.

To properly understand the essence of a criminal attack in the field of VAT refund, we consider it necessary to briefly consider the basic concepts associated with the functioning of this tax.

Currently, this tax in the Russian Federation is established by Chapter 21 “Value Added Tax” of the Tax Code of the Russian Federation (hereinafter referred to as NKRF). Note that this tax, as one of the types of federal indirect taxes, is a system of taxation of goods in the amount of value added at each stage of their production, exchange or resale. VAT is an indirect tax, since it is included in the price of a product (work, service), and then accepted for deduction (reimbursed from the budget) by the buyer of this product (work, service) as paid when purchasing it through a supplier, that is, it is actually transferred to the final consumer of the product ( works, services). VAT is a federal tax (Article 13 of the Tax Code of the Russian Federation), as it is established by the Tax Code of the Russian Federation and is obligatory for payment throughout the territory of the Russian Federation (Clause 2 of Article 12 of the Tax Code of the Russian Federation). VAT is the main source of tax revenue for the federal budget. According to Art. 143 of the Tax Code of the Russian Federation, VAT payers are organizations and individual entrepreneurs, as well as persons recognized as taxpayers in connection with the movement of goods across the customs border of the Russian Federation.

Speaking about illegal VAT refund, we note what is the procedure for its legal compensation. VAT refund is a special procedure carried out by tax authorities, which consists of refunding VAT paid by the taxpayer to its suppliers for goods (works, services), or VAT paid in accordance with the established in order to the budget. Reimbursement is carried out in two types: by offset or return. At the same time, the basis for applying this or that type of compensation is strictly regulated by Art. 176 NKRF. Offset as a type of compensation is an accounting tax transaction performed by a tax authority, as a result of which the taxpayer’s debt for payment of arrears, penalties, and awarded tax sanctions is repaid. Return as a type of compensation is a financial transaction carried out by federal treasury authorities on the basis of documents sent by tax authorities to return funds to the taxpayer. After the taxpayer submits a tax return, the tax authority verifies the validity of the amount of tax declared for reimbursement when conducting a desk tax audit in the manner established by Art. 88 NKRF. Upon completion of the inspection, within seven days, the tax authority is obliged to make a decision on the reimbursement of the appropriate amounts if, during a desk tax audit, no violations of the legislation on taxes and fees were identified. If these violations are identified, a tax audit report must be drawn up. Based on the results consideration of the materials of the desk tax audit, a decision is made to hold the taxpayer accountable for committing a tax offense or to refuse to hold him accountable. Simultaneously with this decision, a decision is made to reimburse (in whole or in part) the amount of tax claimed for reimbursement, or a decision to refuse reimbursement of the amount of tax. If the taxpayer has arrears of taxes, other federal taxes, arrears of penalties or fines, the tax authority has the right to independently offset the amount of tax to be reimbursed to pay off the arrears and arrears of penalties or fines. If the taxpayer does not have arrears of taxes, arrears of penalties or fines, the amount of tax subject to reimbursement by decision of the tax authority is returned at the request of the taxpayer to the bank account specified by him. If there is a written application from the taxpayer, the amounts to be refunded may be used to pay upcoming tax payments for tax or other federal taxes. The decision to offset (refund) the tax amount is made by the tax authority simultaneously with the decision to refund the tax amount (in whole or in part). An order for the refund of the tax amount, issued on the basis of the decision on the refund, is sent by the tax authority to the territorial body of the Federal Treasury on the next day after the day the tax authority makes this decision. The territorial body of the Federal Treasury, within five days from the date of receipt of the specified order, returns the amount of tax to the taxpayer in accordance with the budgetary legislation of the Russian Federation and at the same time notifies the tax authority about the date of return and the amount of funds returned to the taxpayer. Enforcer inevitably faces a number of questions regarding the legal assessment of the taxpayer’s claims for a refund of VAT amounts or a tax offset. The emerging crime situation in the field of taxation indicates the increasing incidence of unjustified VAT refunds, which are made in various ways. A common method is “false export” - the unjustified use by commercial structures of the export VAT benefit provided for by the Tax Code of the Russian Federation. Its essence boils down to the fact that, due to the fact, that VAT is included in the price of goods (works, services), then the exporter pays this tax when purchasing goods (works, services) from a domestic manufacturer or supplier. Upon subsequent sale of these goods (works, services) outside the customs territory of the Russian Federation, the exporter has the right to a VAT refund, calculated based on the price of the goods (works, services). And here various fraudulent schemes are used. Among them, three main ones can be distinguished. First: the prices at which exporting enterprises purchased goods from suppliers are artificially inflated, and, accordingly, the customs value of goods going for export. Second: purchased products are not actually exported outside the country. In accordance with the third scheme, Russian exporters purchase goods from an intermediary who does not submit tax reports and, accordingly, does not pay taxes, and therefore the fact of transferring VAT to the budget is not confirmed. It should be noted that when suppressing attempts to illegally recover VAT from the state budget Law enforcement officers face legal difficulties. The first problem is to distinguish between the criminal demand for VAT refund and the lawful behavior of the taxpayer organization. Let us recall that illegality, along with public danger in accordance with Art. 14 of the Criminal Code of the Russian Federation is a necessary sign of a crime. In relation to VAT reimbursement, the definition of illegality raises difficulties due to the fact that the rules determining the legality of certain actions are contained not in the criminal law, but in regulations of other industry sectors. According to the Tax Code of the Russian Federation, the taxpayer receives the right to VAT reimbursement if the conditions are met : 1) he paid the counterparty from whom the goods were purchased, or refundable VAT to the budget; 2) he has completed a business transaction that gives rise to a VAT refund (for example, export of goods, etc.). Thus, if at least one of these conditions is not met, the claim for compensation will be illegal.

The next problem is related to the qualification of the offense under the relevant article of the Criminal Code of the Russian Federation in order to bring the perpetrators to criminal liability. On the one hand, offenses committed in this area infringe on the interests of the state in the field of taxation of legal entities. However, on the other hand, the obviously illegal use of the VAT refund mechanism acts here as a method of criminal encroachment on state property (in this case, the refundable VAT amount). In our opinion, the type of compensation (direct payments from the budget or tax credit), as well as the direction of intent of the perpetrators, are of paramount importance in the criminal legal classification of illegal VAT refunds. So, if the intent is aimed at receiving funds from the budget under the guise of VAT and stealing them, then the act should be qualified under Art. 159 of the Criminal Code of the Russian Federation – fraud. Fraud is a form of theft, so it has all the characteristics of this concept. The subject of fraud in the case we are considering is the amount of VAT reimbursed by the state. When committing this crime, the injured party itself transfers funds to the criminal, believing that he has the right to receive them. A way to take possession of someone else's property during fraud is deception or abuse of trust. Deception is expressed in a false statement that is obviously untrue, that is, that a given legal entity is entitled to a VAT refund. This is accompanied by the production and use of false documents that are presented to the tax authorities. The funds are turned in favor of the culprit, since they are “returned” to the taxpayer, and from the moment they are credited to his account by the territorial body of the Federal Treasury, he receives a real opportunity to dispose of the funds received. As an example of the above qualification, one can cite a criminal case initiated under paragraph. "b" part 3 art. 159 of the Criminal Code of the Russian Federation. During the investigation, it was established that the executive director of Delta Leasing Company CJSC, G., entered into a fictitious deal for the supply of export products to Welle Financial Union INC. To create the appearance of cash flows from the sale of export products, a bank account was opened with the participation of CB Rublevsky and CB Intercredit. After the grounds for customs clearance of the exported cargo were formally complied with, CJSC Delta Leasing Company submitted documents and VAT reimbursement to the Tax Inspectorate of the Russian Federation. During the investigation, the actions of being are correctly classified as fraud. Let's consider another situation. The taxpayer, by submitting to the tax inspectorate a package of deliberately false documents for VAT refund, seeks either to obtain the opportunity to offset the amount of tax to be refunded against the arrears of this tax, other federal taxes, or, if the taxpayer does not have arrears on taxes, and from the tax authorities there is his written application, the amounts to be refunded should be sent to pay upcoming tax payments for tax or other federal taxes. The actions of the above taxpayer should be qualified under Art. 199 of the Criminal Code of the Russian Federation – evasion of taxes from an organization, since as a result of their commission, within the limits of an artificially created budget debt, the taxpayer “repays” his existing tax arrears, or the amounts “subject to return” are sent by the tax authority to pay upcoming tax payments. or other federal taxes. As a result, the budget does not receive the corresponding amounts of taxes from this taxpayer. According to the disposition of this article, in our case, the crime was committed by including in the tax return or other documents, the presentation of which in accordance with the legislation of the Russian Federation on taxes and fees is mandatory, of knowingly false information. Moment the end of tax evasion, in our opinion, will depend on the method of conducting the VAT tax offset. In the event that the deadline for paying the tax has expired, the crime will be completed from the time the tax authority makes a decision on the offset, since it is this decision that establishes the fact that the taxpayer has fulfilled the obligation. If an organization is released from the obligation to pay taxes, the payment period of which has not yet come, then what has been done may only contain the elements of an unfinished crime, since tax legislation links non-payment of taxes with their failure to remit them on time. And in the event that the taxpayer voluntarily fulfills his obligations to pay taxes before the deadlines specified in the law, then the rule of voluntary renunciation of a crime should be applied (Article 31 of the Criminal Code of the Russian Federation), and, accordingly, in this case criminal liability is excluded. We note the following. The taxpayer, submitting to the tax authority a tax return containing false information about the state's debt to him for VAT, has the intention of receiving compensation by crediting money to his account, and the tax authority independently makes a decision on compensation by means of offset. In this case, what was done should be qualified, in our opinion, as an attempt at fraud. A separate problem when qualifying illegal attempts to refund VAT are cases when, if the outcome of receiving funds is unsuccessful, the taxpayer tries to “recover” VAT through a tax offset. Here, on the one hand, there is unfinished fraud, and on the other hand, the culprit, “refusing” to continue the theft, tries to continue it, but as a tax crime. The traditional theory of qualifying “escalating” crimes finds a way out of this situation in the following. So, if the theft develops into robbery or robbery, then the act is regarded as one whole and an article of the Criminal Code of the Russian Federation is applied, providing for a more severe punishment, that is, Art. 161 or Art. 162 of the Criminal Code of the Russian Federation. This takes into account the fact that such crimes have the same specific object. To assess illegal VAT refunds, this approach, in our opinion, is not applicable. If, after a failed fraud, the culprit tries to get a tax offset, then the act must be qualified under Part 3 of Art. 30 and Art. 159 of the Criminal Code of the Russian Federation and Art. 199 of the Criminal Code of the Russian Federation. In this case, there is no escalation of one crime into another. In addition, the rules on liability for fraud and tax crimes are in different chapters, protecting different objects - property and public interests in the field of economic activity, respectively.

In conclusion, we note the following. VAT is one of the main budget-forming taxes in modern Russia. The shortcomings of the legislative regulation of the calculation, payment and reimbursement of VAT allow the mechanism of reimbursement of amounts of this tax to be used for criminal purposes: for tax evasion and theft of funds from the federal budget. The effectiveness of the fight against these crimes in largely depends on the comprehensive efforts of law enforcement and regulatory authorities aimed at timely detection, comprehensive and objective investigation of all the circumstances of crimes being prepared or committed. But we cannot talk about identifying a crime if we cannot correctly evaluate the corresponding committed act from the perspective of criminal law. A proper criminal legal assessment of acts that violate criminal law and their qualification in accordance with the law ensures proper protection of public relations from criminal attacks related to the use of the VAT refund mechanism.

Links to sources1. Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 28, 2006 No. 64 “On the practice of application by courts of criminal legislation on liability for tax crimes.”2. Yu.A. Krokhina. Tax law. Textbook for bachelors. M., 2013. P. 396.3. Soloviev I.N. Tax crimes and crime. M., 2006. P. 2304. Ragozina I.G. Crimes in the field of taxation: qualification issues: Educational and practical guide. Khanty-Mansiysk, 2005. P. 31.5. Resolution of the Plenum of the Supreme Court of the Russian Federation of December 27, 2002 No. 29 “On judicial practice in cases of theft, robbery and robbery.”

Kasnitskaya Inna YurievnaCandidate of Law Sciences, Department of legal trainingTyumen Institute of Advanced Police Academy of the Russian Federation, [email protected] of implementation of criminal responsibility for illegal refund of value added tax under the criminal code of the Russian FederationAnnotation.The article deals with issues of qualification of illegal refund of value added tax, in cases when the state budget is becoming a source of misappropriation of funds. The article examines the problems faced by law enforcement officers during suppression of attempts of illegal refund of value added tax. Keywords: value added tax, tax evasion, theft, illicit compensation.

• 24.01.2014, 19:24,

Illegal VAT refunds from the budget were classified as fraud and tax evasion. The court did not find any signs of laundering. From the Information on the results of generalizing the practice of consideration by the courts of the Murmansk region of criminal cases on the legalization (laundering) of criminal proceeds, as well as the acquisition (sale) of property obtained by obviously criminal means for the period 2012-2013.

By the verdict of the Oktyabrsky District Court of Murmansk dated (DATE), K. and P. were found guilty and sentenced respectively under Part 4 of Article 159 of the Criminal Code of the Russian Federation, Part 5 of Article 33 of Article 199 of the Criminal Code of the Russian Federation and Part 4 of Article 159 of the Criminal Code of the Russian Federation, Part 1 of Article 199 of the Criminal Code of the Russian Federation and both under Part 4 of Article 174.1 of the Criminal Code of the Russian Federation were acquitted due to the lack of corpus delicti in their actions.

The preliminary investigation body accused K. and P. of committing financial transactions with funds acquired as a result of committing a crime, of using these funds to carry out entrepreneurial and other economic activities, on a large scale, by a group of persons by prior conspiracy, by a person using his official position, committed by an organized group, that is, a crime provided for in Part 4 of Art. 174.1 of the Criminal Code of the Russian Federation. K.A., K.K., unidentified persons developed a plan for the activities of an organized criminal group to provide enterprises in the city of Murmansk and the Murmansk region that actually carry out business activities with illegal services for the provision of false documents in order to inflate their expenses and, thereby, reduce tax base for taxes, as well as illegal reimbursement of value added tax amounts from the federal budget.

P., acting as part of an organized group with K.A., K.K. and unidentified persons, deliberately used as legal entities carrying out transactions for the purchase and sale of goods organizations registered under dummies using their lost passports or for monetary compensation, without the purpose of conducting financial and economic activities due to the lack of employees, funds, premises and property . The transactions were fictitious, that is, they were not actually carried out. To confirm the facts of transactions for the purchase and sale of goods, fake registration and accounting documents of organizations, transaction agreements, invoices, and invoices were prepared and used. The current accounts of the enterprises used served for repeated transfers of funds from one account to the account of these enterprises, and to the accounts of other fictitious legal entities, from which funds were transferred to the personal accounts of K.A. and K.K. in the Murmansk branch of OJSC TL. On the basis of forged and unreliable documents, documents were drawn up containing a demand for reimbursement of value added tax from the budget of the Russian Federation and confirming the fact of transactions, which were presented to the Federal Tax Service of the Russian Federation for the city of Murmansk, which has the right to resolve the issue of returning the amount of tax to the taxpayer calculated on transactions , recognized as an object of taxation in accordance with Tax legislation. Thus, employees of the Federal Tax Service of the Russian Federation for the city of Murmansk were misled regarding the authenticity of the documents presented, on the basis of which they drew up a conclusion on the return of the overpayment of value added tax and the crediting of funds declared for reimbursement to the settlement account of SMR LLC (whose head was P.).

P., K.A. and K.K. and unidentified persons, acting as part of an organized group, deliberately, for selfish reasons, by deception and abuse of trust of the tax authority, stole funds from the federal budget during the period from (DATE) for a total amount of *** rubles.

Subsequently, according to the accusation, in the period from (DATE) by writing off money from the current account of SMR LLC to the accounts of IV, TG, KP LLC and in repayment of accounts payable to the bank, K.A. and P. *** rubles were legalized, that is, *** rubles more than were stolen as a result of fraud.

Tax payments play a huge role in shaping the state economy. Their shortfall in the budget leads to cuts in many social programs and other adverse consequences. The state receives even greater damage from the tricks of fraudsters who are trying to carry out illegal VAT refunds, that is, to withdraw money from the country’s budget under the guise of an authorized tax refund.

Taxes are one of the most important components of a country’s financial stability. The budget is formed mainly by 4 types of taxes and VAT is one of them; it fills the treasury by 45%. Control over the timely payment of taxes is carried out by the Tax Service, which also provides taxpayers with a choice of reporting regime.

Legal entities, government bodies, as well as individual entrepreneurs who strictly comply with the rules for paying taxes have the right to a refund. This procedure is not automatically initiated by the state; it must be activated by the head of the enterprise or accountant.

The procedure consists of several stages:

1. The accountant prepares a package of documents.
2. Sends it to the tax office.
3. The tax service checks the documents and makes a decision.
4. If there is consent, the company can receive funds.

During the audit process, the tax inspector may request additional documentation that confirms the legality of the tax refund. The Tax Service has three months to make a decision. If a request for additional documentation is received by an enterprise later than 90 days, the accountant may leave it without consideration.

Very often, tax authorities delay the audit and deliberately violate the established deadlines, but such actions are easy to challenge in court. If timely requests to provide documentation or explain, for example, a low salary, were rejected by an accountant, the company may be fined and denied a tax refund.

If all the documents are in order, the tax office makes a decision on the return of funds, and within 5 days after the decision is made, it must notify the management of the enterprise. Funds must also be credited no later than the 5th day after the decision is made. If the funds have not been received into the company’s account, then after 12 days the accounting department may charge penalty interest, which the legislation, represented by the Tax Service, must pay off.

The process of checking the documentation and work of the company before refunding the tax is called a desk audit. Sometimes, in addition to a desk audit, the tax office may initiate a number of additional activities, such as requests to the bank about the status of accounts, conversations with employees, checking the identity of the company’s founders, etc.

Types of fraudulent schemes

The imperfection of legislative acts has become an excellent “platform” for the formation of fraudulent schemes. Illegal VAT refund is one of the main forms of profitable business, both among private entrepreneurs and legal entities.

The most common tax refund scheme is the bankruptcy of a company. All goods listed in one company are sold at the expense of another, newly organized one. Of course, without actual payment. Further, all goods sold are subject to taxation in accordance with the established procedure. Naturally, the owner of the goods has an obligation to pay taxes, but the tax itself has already been included in the sale amount.

Thus, the owner of the company has the right to apply for a refund of VAT, since it was paid by him to the seller. The seller and the buyer are actually the same person, although legally, the company may be registered in the name of another person.

Often, criminals use the export of goods at inflated prices. These same goods are then returned to the country at a reduced price. The buyer of these goods at a reduced price has the right to claim a tax refund.

A popular method of money laundering is the creation of a shell company. For example, a registered company draws up an agreement for the purchase of goods with a fly-by-night company. To pay for the supply of goods, a company that actually exists takes out a loan from a bank and, with the same funds, pays the one-day company for the goods allegedly received.

Further, the company has the right to a VAT refund. Ultimately, the genuine company receives a tax refund, and the shell company, under any pretext, returns the funds again to the account of the genuine company. The company's management pays for the loan taken from the bank and has a net profit in the form of refunded VAT. A one-day company is liquidated immediately after the transaction is completed.

Tax Service employees are actively fighting the theft of state property during tax fraud. During their work, tax workers have already developed a number of signs that help them identify and promptly stop illegal tax refunds.

Indirect evidence of illegal VAT refunds includes:

• selling goods at an inflated price;
• the enterprise does not purchase goods and equipment, but at the same time regularly reimburses the tax;
• there is no construction, but VAT is refundable;
• large turnover of goods, but small amounts of taxes;
• reduced customs value of goods;
• conducting frequent counter-inspections;
• under the supply agreement, the advance payment is made with borrowed funds;
• frequent adjustments to the customs value of goods.

Very often, fictitious companies can be detected by checking the data on the legal address, which may have signs of mass distribution. A legal entity can be created quite recently, this also alarms tax authorities, because fly-by-night companies are created immediately before a corruption scheme is carried out.

The accounting reports of the audited company may not include costs for rent and payment of wages to employees. This suggests that the company does not actually function, but exists only on paper. The most common form of fraud is the creation of a company on a person’s passport without his consent or on people without a specific place of residence.

The presence of the above facts gives tax authorities the reason and grounds to conduct a desk audit and a number of other activities confirming the legality or illegality of the actions of entrepreneurs.

Circumstantial evidence alone is not enough to refuse a VAT refund. If they are the ones that tax officials are guided by when refusing, then they themselves can be held accountable for exceeding their official duties..

Responsibility for illegal tax refund

The actions of criminals are not regulated by a specific article of the Criminal Code. Criminals are held accountable under Article 159 of the Criminal Code for fraud. Depending on the form of the fraud, the perpetrator may also be charged with a combination of articles, for example, for theft of state property or tax evasion.

Article of the Criminal Code of the Russian Federation for illegal VAT refund is punishable by a fine of up to 300 thousand rubles. or correctional labor for up to two years. For tax fraud, the same article carries a penalty of up to 10 years in prison with or without further restriction of freedom.

As practice shows, unscrupulous employees of the Tax Service are often involved in crimes of this type. Using their official position, they manage to easily pass all desk checks, and ultimately, use the cashed money of the state at their own discretion.

Such actions by employees of the Tax Service are qualified under two Articles 159: fraud using one’s official position, as well as abuse of authority. For such actions, violators will be punished by imprisonment for a term of 8 to 15 years, with payment of a fine and confiscation of property. The choice of sanction directly depends on the damage that dishonest officials caused through their actions.

The charges brought against production participants for theft of money from the budget are considered one of the most serious. The fact is that with their illegal actions, the perpetrators harm the normal development of the economy in the country and undermine the authority of the state in the international market, not to mention violating the interests of law-abiding entrepreneurs who, while conducting honest business, receive refusals due to massive fraud.

"Taxes" (magazine), 2007, N 2

In practice, certain difficulties arise from the question of classifying illegal VAT refunds as theft (primarily fraud) or a tax crime or a combination of both. It should be noted that when assessing illegal VAT refunds, the law enforcement officer was, perhaps for the first time, faced with the problem of distinguishing between these elements, since before the emergence of this type of crime, no such problem arose.

An analysis of judicial and investigative practice shows that initially different decisions were made regarding legally identical actions. In this case, there are three theoretically possible options for qualifying the crime: tax evasion (Article 198 or 199 of the Criminal Code of the Russian Federation), fraud (Article 159 of the Criminal Code of the Russian Federation) or a combination of these crimes. A tax crime occurs if the right to reimbursement is exercised in the form of VAT amounts from exports or on domestic turnover, reimbursed by way of offset of debt on tax payments or exemption from taxes in the next three reporting periods. However, they did not receive theoretical justification.

Characterizing the objective side of the crime provided for in Art. 199 of the Criminal Code of the Russian Federation, in our opinion, it should be noted that in the literature on issues related to assessing the form of an act of this composition, there is currently no single point of view. Most authors express the view that tax crimes can be committed both through action and through inaction<1>. Some authors are inclined to believe that among the methods of tax crimes there are both active and passive types, which are aimed at ultimately ensuring the evasion of a person from paying taxes and (or) fees, that is, his inaction<2>. In our opinion, committing tax evasion by “including in the declaration (accounting documents) deliberately distorted data on income or expenses” is a typical example of “mixed inaction” formulated in the theory of criminal law.<3>. In this case, the correct definition of this type of inaction, formulated by N.A. Babiy: “a combination of active and passive forms of an act, when in order to ensure inaction a person takes any active actions”<4>.

<1>Sereda I.M. Crimes against the tax system: characteristics, responsibility, combat strategies. Irkutsk: IOGNIU "Institute of Legislation and Legal Information", 2006; Criminal law of the Russian Federation. Special part / Ed. A.I. Raroga. M., 2001. S. 402 - 404; Kucherov I.I. Investigation of tax crimes: Dis. ... K. Yu. n. Research Institute of the Ministry of Internal Affairs of the Russian Federation. M., 1996. P. 79; Maslova I.N. Criminal liability for tax evasion // Tax Bulletin. 1998. N 9. P. 154.
<2>See, for example: Verin V.P. Crimes in the economic sphere. M., 1999. S. 97 - 104; Commentary on the Criminal Code of the Russian Federation / Ed. IN AND. Radchenko. M., 1996. S. 331 - 335; Grigoriev V.A., Kuznetsov A.V. Problems of qualifying tax crimes based on the characteristics of the object and the objective side.
<3>See: Piontkovsky A.A. The doctrine of crime in Soviet criminal law. M., 1961. P. 139.
<4>Babiy N.A. Criminal law of the Republic of Belarus. A common part. Lecture notes. Minsk, 2000. P. 60.

In relation to illegal VAT refund, the criminal act is characterized by failure to fulfill the obligation imposed on a person to pay taxes as a result of “putting” the state in the position of a debtor, accompanied by active actions to include false information in the tax return and other documents confirming the right to VAT refund at a rate of 0 or 18% .

In this regard, the objective side in this case is characterized by the possibility of committing these acts only in the form of inaction, which also indicates the delimitation of this composition from the composition of Art. 159 of the Criminal Code of the Russian Federation.

After the adoption of the current Criminal Code of the Russian Federation, problems related to the methods of their commission arose in law enforcement practice when qualifying tax crimes. These problems were predetermined by the legislator, who, in the dispositions of the articles providing for liability for tax crimes, established specific methods for their commission.

Based on the wording of the article, evasion of taxes and (or) fees from organizations can be committed in one of the following ways:

a) by failure to submit a tax return or other documents, the submission of which is mandatory in accordance with the legislation of the Russian Federation on taxes and fees, i.e. failure to provide, in violation of the law, information about income received and expenses incurred, about which the organization was obliged and could provide information;

b) by including deliberately false information in a tax return or such documents, i.e. deliberately making entries in the declaration or such documents that do not correspond to reality.

What distinguishes the act of illegal compensation we are considering from the “classical” methods of tax evasion is that, as mentioned above, the state has an obligation to the taxpayer to reimburse him for the VAT paid.

The right to offset obligations to the federal budget is granted based on the results of the tax authorities' review of the package of documents provided by the taxpayer, including the tax return. Thus, taking actions to illegally reimburse VAT through offset initially involves filing a declaration upon the occurrence of an obligation to pay federal taxes, including VAT, and subsequently filing a special declaration as the basis for reimbursement. Consequently, the first of those specified in the disposition of Art. 199 of the Criminal Code of the Russian Federation does not apply to the type of crime we are considering.

In relation to VAT refunds, it should be noted that not any legal entity has the right to a refund, but only the one that carried out operations under Art. 146 of the Tax Code of the Russian Federation. In accordance with the specified regulatory legal acts, the following entities are recognized as payers of value added tax: organizations; individual entrepreneurs; as well as persons recognized as payers of value added tax in connection with the movement of goods across the customs border of the Russian Federation, determined in accordance with the Customs Code of the Russian Federation (Article 143 of the Tax Code of the Russian Federation). If the concept of “organization” in relation to tax crimes has been repeatedly considered in dissertations and monographic works<5>, then we should dwell on the content of the concept of “a person moving goods across the customs border of the Russian Federation”, which is directly related to the type of crime under consideration, committed through illegal VAT refunds.

<5>See: Sereda I.M. Crimes against the tax system: characteristics, responsibility, combat strategies. Irkutsk: IOGNIU "Institute of Legislation and Legal Information", 2006; Nudel S.L. Criminal legal and criminological characteristics of tax crimes. dis. ... K. Yu. n. SGA. M., 2004; Larichev V.D. Tax evasion from organizations: qualification of composition // Russian justice. 1997. N 6; Yani P. Qualification of tax crimes // Legality. 1998. N N 1, 2; Bembetov A.P. Prevention of tax crimes. dis. ... K. Yu. n. M.: All-Russian Research Institute of the Ministry of Internal Affairs of Russia, 2000.

In accordance with Art. 11 of the Labor Code of the Russian Federation, the movement of goods and (or) vehicles across the customs border is recognized as the commission of actions to import into the customs territory of the Russian Federation or export from this territory of goods and (or) vehicles in any way. These actions can be performed by individuals (Chapter 23 of the Labor Code of the Russian Federation) and legal entities (Chapter 24 of the Labor Code of the Russian Federation)<6>.

<6>Federal Law of the Russian Federation of May 28, 2003 N 61-FZ “Customs Code of the Russian Federation” (as amended on December 23, 2003) // Russian newspaper. 2003. June 3.

Despite the fact that, in accordance with the Tax Code of the Russian Federation, at the end of the tax period, a person who is a VAT payer is required to file a declaration of a certain type for this tax, only those filed for value added tax at a tax rate of 0% are related to illegal compensation. (form according to KND 1151002)<7>. The inclusion of knowingly false information in the declaration should be considered as one of the signs of the crime in question. Other declarations submitted both for VAT and for other types of federal taxes, for the payment of which the taxpayer previously incurred a debt or which will have to be paid in future periods, contain reliable information, therefore, are considered as a sign of the objective side of Art. 199 of the Criminal Code of the Russian Federation cannot.

<7>Appendix No. 2 to Order of the Ministry of Finance of the Russian Federation dated December 28, 2005 No. 163n “On approval of tax return forms for value added tax, value added tax at a tax rate of 0 percent and indirect taxes (value added tax and excise taxes) with import of goods into the territory of the Russian Federation" // Rossiyskaya Gazeta. 2006. 15 Feb.

Tax evasion from an organization through illegal VAT refund is characterized in all cases by the presence in all cases of two alternatives described in Art. 199 of the Criminal Code of the Russian Federation signs of the objective side: inclusion of knowingly false information in the tax return and in other documents. This follows from the content of Art. 165 of the Tax Code of the Russian Federation, which establishes the procedure for confirming the right to receive compensation when taxed at a tax rate of 0%. In particular, the article presents a list of documents necessary to confirm the validity of the application of the 0% tax rate (or taxation features) and tax deductions to the tax authorities. It seems that it is precisely such documents that can be classified as others in accordance with Art. 199 of the Criminal Code of the Russian Federation.

Other documents, the presentation of which is mandatory in accordance with the legislation of the Russian Federation on taxes and fees, are any documents objectively necessary for the calculation and payment of taxes, which are referred to in the relevant articles of the Tax Code of the Russian Federation and the norms of the current tax legislation as mandatory for presentation taxpayer. The latter’s obligation to submit documents to the tax authorities and their officials arises from the legal requirements contained in paragraphs. 5 p. 1 art. 23 Tax Code of the Russian Federation<8>.

<8>Nudel S.L. Criminal legal and criminological characteristics of tax crimes. dis. ... K. Yu. n. SGA. M., 2004.

Let's consider the features of the qualifications of illegal VAT refunds in order to obtain a credit for repayment of arrears or credit for current payments, i.e. tax evasion from the organization. Qualifying characteristics in accordance with Part 2 of Art. 199 of the Criminal Code of the Russian Federation is the commission of this crime:

• by a group of persons by prior conspiracy. In accordance with Art. 35 of the Criminal Code of the Russian Federation, a crime is recognized as committed by a group of persons by prior conspiracy if it involved persons who had agreed in advance to jointly commit a crime. The commission of a crime by a group of persons, a group of persons by prior conspiracy, an organized group or a criminal community (criminal organization) entails a more severe punishment on the basis and within the limits provided for by the Criminal Code of the Russian Federation;
• on a particularly large scale. In accordance with the note to Art. 199 of the Criminal Code of the Russian Federation, evasion of taxes and (or) fees from an organization is recognized as committed on an especially large scale if the amount of unpaid taxes and (or) fees within three financial years in a row exceeds 1.5 million rubles, provided that their share exceeds 20% of the amounts of taxes and (or) fees payable or exceeds 7.5 million rubles.

It should be noted that, taking into account the changes and additions made to Art. 199 of the Criminal Code of the Russian Federation by Federal Law of December 8, 2003 N 162-FZ, in the event that law enforcement or tax authorities detect falsified accounting or tax reporting documents before their submission to the tax authorities, provided that the amount of unpaid taxes as a result of the introduction of deliberately distorted documents into these documents data on income or expenses exceeds 1.5 million rubles, provided that their share exceeds 20% of the amounts of taxes and (or) fees payable or exceeds 7.5 million rubles, liability may arise for preparation of a crime, since this crime in accordance with Art. 15 of the Criminal Code of the Russian Federation is grave<9>.

<9>Nudel S.L. Decree. Op.

In the event that an unlawful VAT refund occurred as a result of one transaction (or a set of transactions), for which one declaration and a corresponding package of documents for tax refund were submitted to the tax authority, but in different ways (partly by returning funds from the budget, partly by repaying arrears on taxes, partly by offsetting current tax payments), then there is a combination of crimes (Part 2 of Article 17 of the Criminal Code of the Russian Federation).

Submitting, for the purpose of unlawful reimbursement of VAT amounts, to the tax authority a separate tax return on transactions taxed at a tax rate of 0%, 10% and a package of documents to confirm the validity of the application of the tax rate of 0%, 10%, containing knowingly false information, if this did not lead to unlawful reimbursement of VAT from the budget is subject to qualification as an attempt to evade taxes from an organization (Part 3 of Article 30 and Article 199 of the Criminal Code of the Russian Federation), if the purpose of submitting documents was to illegally repay arrears or set off current tax payments on a large scale (in an amount amounting to more than 2 million 500 thousand rubles for a period within three financial years in a row, provided that the share of unpaid taxes and (or) fees exceeds 20% of the payable amounts of taxes and (or) fees, or exceeds 7 million 500 thousand rubles).

An attempt takes place only if the illegal tax refund is not made (i.e. the crime is not completed) due to circumstances beyond the control of the guilty person (Part 3 of Article 30 of the Criminal Code of the Russian Federation), in particular in the refund of tax amounts refused by the tax authority.

E.V.Milyakina

deputy head of the center

on problem research

economic security