According to the current domestic legislation, the person acting as a tax agent is the person who is charged with charging, withholding from the payer and transferring payments to the budget. He is obliged to calculate the amount that must be paid when performing a certain operation. The agent is obliged to keep the calculated value. This amount is excluded from the funds due to any persons and is sent to the budget.
Responsibilities of tax agents
These persons carry out the calculation, deduction and transfer of mandatory payments, regardless of whether they themselves are payers. In addition, agents are required to:
- send a written notice to the tax office about the impossibility of withholding;
- keep records of calculated and paid incomes, calculated, withheld and directed to the budget amounts for each taxpayer separately;
- provide the supervisor with the documents that are necessary to control the calculation, deduction, and the allocation of amounts to the budget;
- keep documentation for 4 years.
These obligations are established by Article 24 of the Tax Code. Regardless of the taxation system used, the organization can act as an agent for:
- VAT.
- Personal income tax.
- Income tax.
Retention
Regardless of the form of payment of income (in kind or in cash), the agent must calculate the amount of tax. However, its deduction is carried out exclusively from the funds paid to the counterparty. This rule is set in sub. 1 paragraph 3 of the above article. Not later than a month from the moment when the tax agent learned about the impossibility of withholding, he needs to send a written notice to the tax authority. This may be a free-form statement. The moment from which the month begins, is determined individually in a particular situation. For example, the issuance of prizes to citizens in kind may serve as it.
Responsibility
It is established for violation of obligations imputed to tax agents, and is provided for in art. 199 of the Criminal Code. Crimes in the field of economic activity today are one of the urgent problems of the state. As you know, deductions of enterprises and citizens form the revenue side of the budget. Failure to fulfill obligations of payers or agents causes substantial damage to the financial condition of the country.
Art. 199 of the Criminal Code: corpus delicti
The norm establishes a penalty for non-fulfillment in one's own interests of the agentโs duties of calculating, withholding and transferring payments to be calculated and redirected to the budget or extra-budgetary fund, failure to provide reporting documents in a large amount. The sanctions for this act are as follows:
- fine in the amount of 100-300 thousand rubles. or income (salary) for 1-2 years;
- arrest up to 6 months;
- up to 2 years of forced labor;
- up to two years in prison.
In addition to the last two sanctions, article 199 of the Criminal Code of the Russian Federation (Criminal Code of the Russian Federation) provides for a ban on certain types of activities. Staying in specific posts for up to 3 years also applies to this. Indicated in Part 1 of Art. 199 of the Criminal Code, sanctions also apply to persons who include deliberately false information in a declaration or other reporting documents.
Qualifying signs
Art. 199 of the Criminal Code of the Russian Federation tightens sanctions if the act is committed:
- by prior arrangement by a group of persons;
- in especially large sizes.
In this case, the agent is punished:
- a fine of 200-500 thousand rubles. or in the amount of income (salary) for 2-5 years;
- imprisonment of up to 6 years;
- forced labor up to 5 years.
In the last two cases, an additional ban may be imposed on the occupation of certain posts or the implementation of specific activities for a period of up to 3 years.
Art. 199 of the Criminal Code with comments
Basically, the given signs of unlawful behavior coincide with those established in another norm - 198. But, in contrast to Art. 199 of the Criminal Code, tax evasion and (or) organization charges presupposes another subject of an illegal act. In addition, there is a difference in the amounts that form a large or especially large value. In Art. 199 of the Criminal Code are established large in comparison with the previous norm.
Explanations of the Plenum of the Armed Forces
They are given in relation to entities that are held accountable under Art. 199 of the Criminal Code. Judicial practice is guided by the provisions of norm 11 of the Tax Code. In accordance with it, agents should include legal entities formed in accordance with domestic law, foreign companies and other corporate associations endowed with civil legal capacity, or formed in the manner prescribed by the legal system of foreign states, international entities, their representative offices / branches located at the territory of Russia.
Objective part
It is characterized by the characteristics specified in rule 198. The legislation establishes a list of documents required to be submitted to the supervisor. Among them, in particular, there is a report on losses and profits or the targeted use of funds, balance sheet, etc. Enterprises (except for public and budget associations, as well as their structural units that do not carry out commercial activities and do not have turnover in the sale of material assets, except for the retired property) are required to provide quarterly (within a month after its completion) and annual (no later than 90 days from its end) statements, unless otherwise provided by law.
Federal Law No. 402
The financial statements of an enterprise can be provided directly to an interested person, or transmitted through a company representative, sent by mail with an inventory of investments, or via telecommunication channels. The user of the documentation does not have the right to refuse to accept it and must, at the request of the contractor, put a mark on the copy indicating the date of receipt. In case of receiving reports via telecommunication channels, the entity is obliged to transfer to the enterprise a receipt on its receipt in electronic form. The day of submission of documentation is considered directly the date of sending or the actual transfer.
Action design
The corpus delicti is formal. The norm connects the completion of an act with the fulfillment of the actions that are given in the disposition. The intent of the guilty entity is the realization that he is evading the payment of tax or insurance premiums in large quantities. This value is recognized as an amount from 2 million rubles. for three consecutive years, provided that the share of unpaid mandatory payments is more than 10% of all deductions due to the budget, or more than 6 million rubles.
Subjective part
The sane individual may be guilty, whose functional duties provide for mandatory budgetary deductions from the enterprise. Other entities cannot be held liable under Art. 199 of the Criminal Code. The practice of considering cases indicates that the defendants are the heads of the payer company, an accountant (including the main one), whose duties include signing reports submitted to supervisory authorities, ensuring timely and full payments to the budget. Other individuals may be held liable if they have received special powers for such actions by the governing body of the enterprise. In the circle of subjects of Art. 199 of the Criminal Code of the Russian Federation also refers to citizens who actually replace the positions of accountant or manager. If these persons have previously agreed to commit an unlawful act aimed at non-reporting or inclusion of knowingly false data in it, their behavior is qualified according to paragraph "A", part 2 of this article.
Subject classification
Other employees of the payer enterprise, whose responsibilities, for example, include the preparation of primary accounting records, if there are reasons, may be held liable for the relevant part of the rule in question as accomplices who deliberately assisted in the commission of an illegal act. A person who organized or persuaded a manager, accountant, or other employee of the company, as well as facilitated the commission of an act by instructions, advice, and so on, may be punished as an organizer, accomplice, or instigator. In these cases, the provisions of Art. 33.
Extra large sizes
This qualifying attribute established in paragraph "B" of part 2 of article 199 of the Criminal Code of the Russian Federation, acquires the appropriate value only when the amount of amounts not allocated to the budget is more than 2.5 million rubles. The calculation in this case is carried out within 3 financial years in a row. In this case, the condition that the share of non-deducted taxes / fees is more than 20% of the total amount to be transferred to the budget must be observed. If this percentage is not met, then a size exceeding 30 million rubles is recognized as especially large.
Conclusion
The category of economic crimes, according to a number of lawyers, is quite reasonably included in the Criminal Code of the Russian Federation. The presence in the legislation of more stringent responsibility allows to stop violations of financial discipline and ensure the stability of budget revenues. It should be noted that criminal liability takes place only in cases of large amounts of non-deducted amounts. To establish it, the legislator determines the time limits, which are at least 3 years following in a row. It follows from this that criminal punishment arises from a systematic violation of financial discipline. In such cases, there is a direct intention of the guilty persons.