In Art. 120 and 122 of the Tax Code of the Russian Federation, liability is established for failure to comply with the requirements of tax legislation on accounting for taxable items, expenses and income, as well as on making mandatory payments. A fine has been established as punishment. Its value depends on the nature and number of violations, as well as the consequences that arose. We consider in more detail Art. 120 of the Tax Code with the comments of lawyers.
Types of Violations and Punishment
Fine under Art. 120 of the Tax Code of the Russian Federation is charged for gross violation of the provisions governing the procedure for accounting by the payer of objects of taxation, costs and income:
- committed during one reporting period;
- allowed for more than 1 tax period;
- resulting in an understatement of the taxable base.
In the first case, a monetary penalty of up to 10 thousand rubles. Such a fine is defined in paragraph 1 of Art. 120 of the Tax Code. If violations are committed for more than 1 period, the amount increases to 30 thousand rubles. If the actions of the subject have led to an underestimation of the base, 20% of the amount of unpaid tax (or insurance premiums) may be recovered from it, but not less than 40 thousand rubles.
Gross violation of accounting
Under it under Art. 120 of the Tax Code of the Russian Federation should understand the absence of:
- primary documentation;
- invoices;
- tax / accounting registers.
A gross violation is also recognized as a systematic incorrect / untimely reflection of information on accounts, in registers, reporting documents:
- business operations;
- intangible assets;
- of money;
- financial investments;
- Goods and materials.
One-time responsibility
When committing a specific offense, the guilty person may be punished only once. The relevant provision follows from many existing regulations. If we talk about tax violations, the principle of one-time liability is enshrined in article 108 of the Tax Code (paragraph 2).
The courts should take into account that liability and punishment for gross non-compliance with the accounting procedure, which led to an understatement of the taxable base, are established in paragraph 3 of Article 120 of the Tax Code. But if the understatement has occurred on the grounds not specified in the 120th norm, liability must come under Article 122 of the Code.
Many arbitral tribunals adhered to this approach until the adoption of plenary resolution of the Supreme Arbitration Court No. 57 of 2013, and Resolution No. 5 of 2001 lost its force. Today, explanations regarding the application of the provisions of paragraph 3 of Art. 120 of the Tax Code are absent.
At the same time, in Resolution No. 5, which was in force earlier, it was mentioned precisely clause 3 of the considered norm (and not the whole article as a whole). Given this, individual courts allow the possibility of applying sanctions to perpetrators under paragraph 3 of Art. 120 of the Tax Code and 122 articles.
Composition of the offense
To impute punishment under Article 120 of the Tax Code of the Russian Federation, it is necessary not only to establish the fact of the violation, but also the guilt of the person. For example, if the documentation requested by the control body is not submitted on time, due to theft, damage due to fire, flooding and other force majeure circumstances, there is no qualifying sign of violation and guilt of the subject. Judicial practice confirms this conclusion.
Features of the proceedings
Article 100.1 of the Tax Code establishes the rules for the consideration of cases related to tax violations. The norm says that the facts of non-compliance with the requirements of the Code identified during field or desk inspection are considered in the manner prescribed by Article 101 of the Tax Code. The article also states that cases of offenses discovered during the implementation of other control measures, except for the norms specified in 120, 122, 123, are dealt with in accordance with the rules of Art. 101.4.
If it is revealed that an advance invoice has not been issued, the Federal Tax Service may impose a fine on the payer for gross violation of the accounting procedure for taxable items, expenses and income under Article 120 of the Tax Code of the Russian Federation.
If the information in the submitted declaration does not correspond to the information received during the exchange of data between the control bodies of the EurAsEC CU member states, sanctions may be applied to the payer in accordance with paragraph 9 of Article 2 of the Protocol of 2009. Moreover, the fact of non-compliance is not recognized as a basis for imputation fine, since such a basis is not provided for in the Tax Code. If the actions of the payer reveal signs of violations provided for in Articles 120 and 122, appropriate measures may be applied to it.
Limitation period
It is mentioned in article 113 of the Tax Code. Based on the provisions of the norm, liability measures can be applied to the payer if less than three years have passed from the date of the violation or from the day following the last day of the reporting period in which the offense was committed and before the decision on imposition of punishment.
This procedure, however, applies only partially to cases enshrined in Articles 120 and 122 of the Tax Code. With regard to violations specified in these standards, the rule on calculating the statute of limitations from the day following the date of completion of the reporting period applies.
The concept of a continuing offense is not provided for in the Tax Code. If in the course of inspections the control body reveals a violation of the procedure for accounting for the object of taxation on personal income tax in the context of each individual, the organization can be held accountable for a single offense under Article 120 of the Tax Code.
CAO
The legislation contains a similar article enshrining sanctions for gross violations of accounting and reporting. The measures of responsibility for these acts are established in Art. 15.11 Administrative Code. The subjects of violation are the head of the enterprise (as the person who bears the responsibility for organizing accounting) and ch. accountant (responsible for direct accounting).
The specified rate of the Code of Administrative Offenses provides for punishment from 2 to 3 thousand rubles.
Gross violations of the provisions governing the accounting and reporting procedures are considered to be an underestimation of the amount of taxes and fees charged for payment by no less than 10% arising from distortion of information.
Disclaimer
Punishment to officials may not be imputed if the company provides an updated declaration and, on the basis of the information reflected in it, pays the previously unpaid fees and taxes, penalties, subject to the requirements laid down in paragraphs 3, 4, 6 of Article 81 of the Tax Code. Exemption from liability is possible if the actions of persons have not revealed signs of other offenses.
In any case, the question of the possibility or impossibility of applying sanctions provided for by law to the perpetrators should be decided taking into account the specific circumstances of the case, taking into account factors mitigating liability.
Conclusion
Currently, the revised version of Article 120 of the Tax Code is in force. Since 01/01/2014, there is normally no indication of the subject of the violation. In the previous edition, the number of persons held accountable included IP and legal entities.
In the original version of article 120, paragraph 4 was also present. It established liability for violation of the procedure for filing a tax return. In particular, the sanction was provided for untimely / incorrect reflection in the reporting of expenses and income, sources of income, tax amount, other information regarding the calculation and deduction of mandatory payments. This paragraph was excluded from the article on the basis of the Federal Law No. 154 of 1999.
Bill No. 460262-6 was submitted to the State Duma. It provides for the inclusion of paragraph 5 in article 120. According to lawmakers, this paragraph should provide for liability for the payment of income to citizens without concluding employment contracts with them. According to the proposal, the penalty for this should be 20 thousand rubles.