Article 114 of the Tax Code of the Russian Federation. Tax sanctions (current version)

What is a tax offense and responsibility for it?

Tax offenses are actions that violate the provisions of the Tax Code and for which liability is established (Article 106 of the Tax Code of the Russian Federation).
For committing an illegal act, the law provides for fines and sometimes criminal penalties. The punishment depends on the type of violation and the presence of intent. According to the Tax Code of the Russian Federation, it is impossible to fine a company official - the fine is imposed on legal entities and individuals. But this does not mean that the general director and chief accountant are free to do whatever they want. Along with fines for an organization under the Tax Code of the Russian Federation, articles of the Code of Administrative Offenses or even the Criminal Code of the Russian Federation may be applied to officials.

Individuals bear tax liability from the age of 16. Even if a child has an obligation to pay tax or submit a declaration before the age of 16, his parents or guardians must fulfill it. Otherwise, all responsibility will fall on them (Article 107 of the Tax Code of the Russian Federation).

Where does “clarification” begin?

The accountant submitted the declaration, and then realized that there was a technical error in the report. The program worked that way.

Or the reporting campaign has long passed, the report was submitted on time, but then the responsible manager brings the initial report, which can be used to take into account new expenses.

Or the counterparty corrected the invoice after submitting the reports.

Or the accountant, through his own fault, reflected the wrong indicators in the report.

All such situations are a reason to create an updated declaration. For an accountant, this is an opportunity to correct errors in reporting independently, before the tax authorities find them, and thereby avoid unwanted liability.

Act differently depending on what happens to your tax - whether you increase it or decrease it.

Types of tax offenses and fines

A complete list of tax offenses is in Chapter 16 of the Tax Code of the Russian Federation. In the table we have collected the main types of offenses and fines that are established by the Tax Code.

Remember, a fine does not relieve you of responsibility for fulfilling your obligation. You cannot pay 20% of unpaid taxes and forget about them, or give 200 rubles and not bring documents when requested by the inspector. You still have to fulfill your obligations.

Article 114 of the Tax Code of the Russian Federation. Tax sanctions (current version)

The commented article regulates a fine as a tax sanction.

The Tax Code of the Russian Federation provides for only one type of sanction for any tax offense - a fine.

If there is at least one mitigating circumstance, the amount of the fine shall be reduced by no less than two times compared to the amount established by the Tax Code of the Russian Federation.

In paragraph 16 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 N 57 “On some issues arising when arbitration courts apply part one of the Tax Code of the Russian Federation” it is noted that paragraph 3 of Article 114 of the Russian Federation establishes only the minimum limit for reducing the tax sanction and the court based on the assessment results relevant circumstances (for example, the nature of the offense committed, the number of mitigating circumstances, the identity of the taxpayer, his financial situation) has the right to reduce the amount of the penalty by more than half.

At the same time, in accordance with Article 71 of the Arbitration Procedure Code of the Russian Federation, the arbitration court evaluates evidence according to its internal conviction, based on a comprehensive, complete, objective and direct examination of the evidence available in the case.

Thus, the current procedural legislation does not contain a prohibition on presenting arguments in court to reduce the amount of a tax sanction due to the presence of mitigating circumstances, when they are taken into account by the tax authority at the stages of pre-trial settlement of a tax dispute, as well as on the inability of the court to take into account these circumstances again and reduce the amount of tax sanctions in case of non-compliance by the tax authority with the principle of proportionality of punishment for the committed offense.

In this regard, the court, when determining the proportionality of the applied tax sanction to the tax offense committed, has the right to take into account any mitigating circumstances, including those previously assessed by the tax authority.

A similar position is enshrined in the letter of the Federal Tax Service of Russia dated August 22, 2014 N SA-4-7/16692.

An increase in the amount of the fine by 100 percent is permissible only in cases where the person held accountable due to an aggravating circumstance committed an offense after being held accountable for a previously committed similar offense.

This conclusion was reached by the Presidium of the Supreme Arbitration Court of the Russian Federation in Resolutions dated December 9, 2008 N 9141/08 and dated April 1, 2008 N 15557/07.

As the Ministry of Finance of Russia explained in letter dated July 24, 2012 N 03-02-08/64, the fine may be increased by 100 percent if a person commits a tax offense within 12 months from the date of entry into force of a court or tax authority decision to prosecute the person to liability for committing a similar tax offence.

As stated in the Resolution of the Federal Antimonopoly Service of the North-Western District dated October 26, 2012 N A05-12621/2011, by virtue of Articles 112, 114 of the Tax Code of the Russian Federation, when determining the amount of penalties, the law enforcement officer takes into account both circumstances aggravating liability and circumstances mitigating liability, since the tax The sanction is a measure of responsibility for committing a tax offense.

It does not follow from the provisions provided for in Chapter 16 of the Tax Code of the Russian Federation that the presence of aggravating circumstances excludes the possibility of using mitigating circumstances.

Therefore, these circumstances must be taken into account when assigning punishment in their entirety.

Comment source:

“ARTICLE-BY-ARTICLE COMMENTARY TO PART ONE OF THE TAX CODE OF THE RUSSIAN FEDERATION” (UPDATE)

Yu.M. Lermontov, 2016

In what cases can the fine be reduced?

The law establishes a list of situations that mitigate liability for violations of taxes and fees. These include (clause 1 of article 112 of the Tax Code of the Russian Federation):

• difficult personal or family circumstances;
• committing an act under threat or coercion;
• other circumstances that the court or the Federal Tax Service consider mitigating.

Law loves balance. Therefore, there is an aggravating circumstance - repeated violation.

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We declare additional tax

In this case, it is extremely important to act in a strictly defined sequence. If you do the opposite, you will run into fines and penalties. If all the steps are correct, you will be able to limit yourself to only penalties.

Step 1.

Before submitting an amendment, transfer to the budget that part of the tax that arose for additional payment after all the corrections.

In addition to the arrears, pay a penalty for each calendar day of non-payment of tax.

Keep in mind: individual entrepreneurs and companies calculate penalties differently. For organizations, the “prices” are twice as strict starting from 31 days of delay.

In any case, the amount of penalties cannot be greater than the arrears themselves.

An accountant calculates penalties. To help, there are Internet services provided for these purposes.

How to calculate penalties

Step 2.

After you have paid the tax and penalties, submit an amended return.

What to do if you first clarified, and then transferred the arrears and penalties to the budget?

Be prepared to pay a fine under paragraph 1 of Art. 122 of the Tax Code of the Russian Federation - 20% of the unpaid tax amount. Reason: incorrect tax calculation, underestimated tax base. If the violation is intentional, the sanction will be increased to 40% of the unpaid tax amount.

To at least somehow correct the situation, try to reduce the size of the fine by stating the presence of mitigating circumstances. How exactly to apply - see the cheat sheet below. And the table shows what arguments should be given.

The tax office is obliged to take into account mitigating circumstances (Article 112 of the Tax Code of the Russian Federation). Even one mitigating circumstance already reduces the fine by half.

There is no limit to which the tax authorities have the right to reduce the sanction. This means that the fine can even be canceled completely. For example, if the inspector considers that a combination of circumstances forced the violation and there was no choice.

In each specific situation, the taxpayer may point to arguments that are not mentioned either in the Code or in judicial practice.

Mitigating circumstances can be stated in objections to the desk audit report or in a free-form statement (petition), as well as during the consideration of the desk audit materials. The taxpayer may also submit documents confirming the above arguments.

List of possible circumstances that reduce the amount of the fine

Crib. How to avoid fines for clarification

1. Based on the results of the desk check of the clarification, you receive a report. In person, by TKS or Russian Post. From the act you will learn that the tax office is holding you accountable under Article 122 of the Tax Code.
2. You have 30 calendar days to prepare objections to the inspection report or a free-form petition. The goal is to list the circumstances mitigating liability, that is, the amount of the fine. It is advisable to support your arguments with supporting documents.

Responsibility for tax violations under the Code of Administrative Offenses of the Russian Federation

Administrative responsibility under the Code of Administrative Offenses lies with officials, most often the director or chief accountant of the company. The legislator highlighted violations of taxes and fees in Chapter. 15 Code of Administrative Offenses of the Russian Federation.

We declare the tax to be reduced

There is no reason for a fine here. However, there are at least two possible problems that need to be taken into account if you decide to clarify.

The first trouble.

A declaration in which the amount of loss has increased or the amount of tax has decreased is a reason for inspectors to request documents confirming the amount of loss, primary records, and analytical registers. But there is a limitation: this opportunity is provided only for those declarations that are submitted after two years from the date of the established filing deadline.

The second problem.

The tax office has the right to demand clarification from the taxpayer. You will have to explain on what grounds your tax liabilities were reduced. Failure to provide an explanation may result in a fine.

The Constitutional Court gave a new interpretation to the norms of the Tax Code on fines due to the decision of the ASGM

The Constitutional Court of the Russian Federation gave a new interpretation to the norms of the Tax Code of the Russian Federation regarding exemption from liability for late payment of taxes. The case of verification of paragraph 4 of Art. 81 and art. 123 of the Tax Code of the Russian Federation was considered based on the complaint of TAIF PSC without a hearing. As follows from the complaint, PSC TAIF, based on the results of an on-site tax audit for the period 2011–2012, was brought to tax liability for untimely transfer to the budget of withheld amounts of personal income tax. The company was fined in the amount of 299,403 rubles, and also charged a penalty in the amount of 4,896.70 rubles.

filed a claim with the Moscow Arbitration Court to declare the tax authority’s decision invalid. The plaintiff referred to the fact that his late transfer of personal income tax was eliminated independently, and long before the end of the tax period and before the deadline for submitting the relevant calculations to the tax authorities, late penalties were also paid. The court declared the tax authority's decision invalid only in relation to the fine in the amount of 59,730.20 rubles. Regarding the other part of the fine, the ASGM considered that the provisions of paragraph 4 of Art. 81 of the Tax Code of the Russian Federation binds the exemption from liability provided for in Art. 123, with the submission of an updated declaration or calculation, as well as with the payment of the missing amount of tax and penalties accrued for late payments, while TAIF PSC presented the tax authority with a calculation of the personal income tax immediately without errors and did not clarify it subsequently, which does not allow apply exemption from tax liability on the basis of clause 4 of Art. 81 Tax Code of the Russian Federation. The 9th AAS and the Administrative Court of the Moscow District left the court decision unchanged, and the judge of the Supreme Court of the Russian Federation refused TAIF PSC to transfer the company’s cassation appeal for consideration by the Judicial Collegium for Economic Disputes of the Supreme Court.

When appealing to the Constitutional Court, the company indicated that, in its opinion, the provisions of paragraph 4 of Art. 81 and art. 123 of the Tax Code contradict the Constitution, since they allow the tax agent to be released from liability only if he has submitted inaccurate tax reporting, and if the reporting was initially correctly drawn up, the exemption from liability for delay cannot be used. In addition, the unconstitutionality of Art. 123 of the Tax Code is proven by the fact that the fine established by this article for failure to transfer withheld tax amounts is collected from tax agents in the same amount - regardless of the fact that the delay in payment of tax could have been insignificant and was independently eliminated long before the end of the tax period with the payment of penalties in compensation damage to the treasury.

The Constitutional Court, having considered the case, noted: from the provisions of the Tax Code of the Russian Federation under consideration, it follows that for acts committed by tax agents of the same category and entailing the same consequences, exemption from tax liability depends on whether there was unreliable or incomplete reflection of information in tax documentation . At the same time, only those tax agents who incorrectly or erroneously prepared tax calculations receive the right to exemption with certainty. The legal status of these persons as subjects of tax liability is equivalent to the position of tax agents who, like them, have committed a delay in transferring tax amounts that was not caused by distortion of tax reporting. However, those who fulfilled the obligation to submit a reliable tax calculation and paid the overdue tax amounts along with penalties may be denied exemption from tax liability, despite the fact that the violation they committed was based on a technical error that does not entail distortion of tax reporting.

The Constitutional Court recognized clause 4 of Art. 81 and art. 123 of the Tax Code do not contradict the Constitution. However, taking into account the discrepancies in the understanding of these provisions of the Tax Code, which occur in judicial practice, the Constitutional Court came to the conclusion that these provisions should not be interpreted as depriving a tax agent who was late in paying personal income tax, which was correctly calculated by him in the calculation submitted to the tax authority , the right to exemption from tax liability. This applies to those cases when he paid the missing amount of tax and the corresponding penalties until the moment when he became aware of the fact that the tax authority had discovered the fact of untimely transfer of the withheld tax or had appointed an on-site tax audit, despite the fact that there is no evidence indicating that the untimely the transfer of tax amounts to the budget was deliberate and was not the result of its omission (technical or other error).

As the Constitutional Court pointed out, the revealed constitutional and legal meaning of the provisions of the Tax Code of the Russian Federation under consideration is generally binding; any other interpretation of them in law enforcement practice is excluded. The Constitutional Court decided to review the decisions in the case of TAIF PSC.

Tax exemption.

Tax legislation determines that citizens are exempt from taxation under certain conditions:

1. If the period of ownership of movable or immovable property (acquired before January 1, 2021) is more than 3 years.

2. The minimum period for ownership of real estate acquired after January 1, 2021 is 3 years (if ownership was acquired as a gift (between close relatives), as a result of privatization or rent). For other cases, the minimum period is 5 years.

If the period is shorter, then you will have to pay tax. However, there are some important points.

In what cases is it necessary to submit a declaration?

We are not talking about filing a tax refund declaration (it can be submitted at any time), but precisely the conditions under which the law obliges the submission of reports within a certain period.

The declaration is submitted if you have received additional income that is not related to the earnings on which the employer pays tax:

- if income is received from the sale of property;

- if real estate, a vehicle, shares, shares, shares were received as a gift from individuals who are not close relatives;

-if remuneration is received on the basis of a concluded agreement (for example, if you rent out an apartment);

— if you won the lottery or received winnings from a bookmaker/totalizator (other gambling games) up to 15 thousand rubles;

- if you received income outside the Russian Federation.

In practice, most often citizens are faced with actions related to the sale of property.

Tax sanction

– measure of responsibility for committing a tax offense. Tax sanctions are established and applied in the form of monetary penalties (fines). Tax sanctions are applied as a response measure reflecting the negative reaction of the state to a tax violation. At the same time, tax liability is always of a public legal nature, which is due to the socially significant, public legal nature of tax legal relations. Disputes over non-fulfillment of tax obligations are within the framework of public law, not civil law.

The amounts of penalties collected from individuals for violating the requirements of tax legislation and determined by the Tax Code go beyond the scope of the tax debt as such. This is how they differ from arrears and tax penalties and essentially represent a type of public legal liability of a property nature.

Tax sanctions are of a property nature and are applied in the form of fines. In the area of ​​tax liability, the use of the entire system of administrative penalties is justified. The application of penalties for tax offenses should pursue goals not of a compensatory and restorative nature (this problem is solved by the collection of arrears and penalties), but of a punitive and educational nature. Along with property sanctions, it is quite acceptable to apply the full range of administrative and legal liability measures for tax offenses, including penalties of a personal and organizational nature.

If there is at least one mitigating circumstance, the amount of the fine shall be reduced by no less than two times. If there is an aggravating circumstance, the fine increases by 100%.

When two or more tax offenses are committed by one person, tax sanctions are collected for each offense separately without absorbing the less stringent sanction with the more stringent one.

The amount of a fine collected from a taxpayer, fee payer or tax agent for a tax offense resulting in a tax (fee) debt is subject to transfer from the accounts of the taxpayer, fee payer or tax agent, respectively, only after the full transfer of this amount of debt and the corresponding penalties in order established by the civil legislation of the Russian Federation.

Tax authorities may apply to court to collect fines from organizations and individual entrepreneurs in the manner and within the time limits provided for by the Tax Code; from an individual who is not an individual entrepreneur, in the manner and within the time limits provided for by the Tax Code.

A statement of claim for the collection of a fine from an organization or individual entrepreneur in cases provided for by the Tax Code of the Russian Federation may be filed by the tax authority within six months after the expiration of the deadline for fulfilling the requirement to pay the fine. The deadline for filing the specified statement of claim missed for a valid reason may be restored by the court.

In case of refusal to initiate or terminate a criminal case, but in the presence of a tax offense, the period for filing a statement of claim is calculated from the date the tax authority receives the decision to refuse to initiate or terminate the criminal case.

Table of contents

KS: Independent elimination of a tax violation should lead to release from liability

The Constitutional Court published Resolution No. 6-P of February 6, 2018 in the case of verifying the provisions of paragraph 4 of Art. 81 and art. 123 of the Tax Code of the Russian Federation. Their constitutionality was challenged by TAIF PSC, which, based on the results of an on-site tax audit for the period from January 1, 2011 to December 31, 2012, was brought to tax liability for untimely transfer to the budget of withheld amounts of personal income tax. In accordance with Art. 123 The company was fined almost 300 thousand rubles, and a penalty was also charged.

The arbitration court declared the decision of the tax authority invalid regarding the fine in the amount of about 60 thousand rubles. At the same time, the Company referred to the fact that the untimely transfer of personal income tax amounts, which it committed as a tax agent, was eliminated independently, long before the end of the tax period and before the deadline for submitting the relevant calculations to the tax authorities, and also paid late fees, but the court did not take this into account and refused to grant relief from tax liability in another part of the fine. The court considered that the provisions of paragraph 4 of Art. 81 of the Tax Code of the Russian Federation binds the exemption from the fine provided for in its Art. 123, with the submission of an updated declaration or calculation, as well as with the payment of the missing amount of tax and penalties accrued for late payments, while the company submitted to the tax authority a calculation for the personal income tax immediately without errors and did not clarify it subsequently, which does not allow applying the exemption from tax liability.

The Court of Appeal and the District Court upheld the first instance decision. The judge of the Supreme Court of the Russian Federation refused to transfer the Company's cassation appeal for consideration at a court session of the Judicial Collegium for Economic Disputes, with which the Deputy Chairman of the Supreme Court of the Russian Federation also agreed.

The company appealed to the Constitutional Court. In her opinion, paragraph 4 of Art. 81 and art. 123 of the Tax Code of the Russian Federation contradict the Constitution, since they allow a tax agent to be released from tax liability (fine) for untimely transfer to the budget of the amounts of personal income tax withheld by him only if he submits updated tax reporting; Since this condition cannot be fulfilled if the reporting is initially correctly drawn up, only tax agents who have submitted inaccurate tax reporting can enjoy exemption from tax liability for such delay.

The society separately substantiated its position regarding the unconstitutionality of Art. 123 of the Tax Code of the Russian Federation, indicating that the fine established by this article for failure to transfer withheld tax amounts is collected from tax agents in the same amount - regardless of the fact that the delay in payment of tax could have been insignificant and was independently eliminated long before the end of the tax period with the payment of penalties in compensation for damage to the treasury.

The court noted that it had repeatedly spoken out regarding this article in its decisions of March 19, 2003 No. 3-P, of March 13, 2008 No. 5-P, of May 27, 2008 and others. He pointed out that the application of penalties without proper consideration of the circumstances characterizing the person guilty of committing the act, which have an objective and reasonable justification, contradicts the constitutional prohibition of discrimination and the ideas of justice and humanism expressed in the Constitution of the Russian Federation, and is also incompatible with the principle of individualization of responsibility for offenses. “Measures of legal liability and the rules for their application must not only correspond to the nature of the offense, its danger to values ​​protected by law, but also ensure that the reasons and conditions for its commission are taken into account, as well as the identity of the offender and the degree of his guilt, thereby guaranteeing the adequacy of the consequences generated for the person held accountable, the harm caused as a result of the offense, avoiding excessive state coercion and ensuring a balance of the fundamental rights of the individual (legal entity) and the general interest, which consists in protecting the individual, society and the state from offenses,” the Constitutional Court emphasized.

The Constitutional Court indicated that a tax agent held accountable for failure to fulfill the obligation to withhold and (or) transfer taxes, in any case, has the right to count on the possibility of establishing in his case significant circumstances that determine the individualization of the punishment, in particular, taking into account mitigating circumstances. Thus, the Constitutional Court did not see any uncertainty in the issue of the constitutionality of regulating the amount of the fine provided for in Art. 123 Tax Code of the Russian Federation.

The court referred to its Resolution No. 9-P of July 14, 2005, where it noted that the taxation system is based on information about income provided by the taxpayer himself. From this understanding, which implies the reliability of tax declarations, comes sub-clause. 2 clause 4 art. 81 of the Tax Code of the Russian Federation, according to the meaning of which, the release from liability of a taxpayer who has submitted an updated tax return after an on-site tax audit, which did not reveal errors and violations in his reporting, is not even conditioned by his payment of the missing amounts of tax and penalties, but only by the correction of the relevant information.

According to the Constitutional Court, this legal provision, without canceling the tax obligation, directly encourages taxpayers and tax agents to maintain reliability in tax reporting. Moreover, Art. 119 and 126 of the Tax Code of the Russian Federation provide for liability specifically for failure to submit tax reports to the tax authority, and its Art. 126.1 – for the submission by a tax agent of documents containing false information. From this, according to the Court, it follows that the tax law recognizes the importance of the requirement for the reliability of tax reporting in maintaining fiscal law and order. “Accordingly, its compliance cannot impede the use of fiscal incentive measures, especially since neither the tax law itself nor the practice of its application can encourage the persistence of unreliability in tax reporting, conditioning exemption from tax liability solely on the presence of errors (inaccurate information) in tax returns or calculations, both taken into account in the objective and subjective side of the offense, and accompanying a tax tort in a conditionally neutral sense,” the resolution says.

The Constitutional Court noted that also Art. 123 of the Tax Code of the Russian Federation provides for liability in the form of a fine not for violations committed by the tax agent in terms of the reliability of the submitted calculations, but for arrears, regardless of the reasons for their occurrence. With this definition of the composition of a tax offense, the Constitutional Court believes, the tax agent, as a responsible person obliged by virtue of the tax law to accurately declare taxes, has reason to believe that it is the failure to pay tax and penalties, regardless of whether the tax reporting submitted by him is erroneous or flawless, that entails refusal in exemption from tax liability. Moreover, if the arrears were paid voluntarily by him and compensated with penalties before he became aware of the discovery by the tax authority of the fact of late payment of tax or the appointment of an on-site tax audit, it was allowed without distortion of tax reporting and unintentionally.

The Constitutional Court noted that in judicial practice it is possible to exempt a tax agent who has timely submitted reliable tax reporting from liability for unlawful non-withholding and non-transfer of taxes, which is consistent with the legal position set out in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of March 18, 2014 No. 18290/13 in relation to to the intended purpose of exemption from tax liability provided for in Art. 81 Tax Code of the Russian Federation. This is also indicated in the letter sent to the Constitutional Court in the framework of this case by the Deputy Chairman of the Supreme Court of the Russian Federation, who believes that tax agents who missed the deadline for paying taxes, but compensated for the delay by voluntarily paying penalties, are put in a worse position compared to those who who committed a more serious violation by distorting tax reporting, resulting in incomplete payment of tax. At the same time, the letter notes that under circumstances similar to those established in relation to the Company, in order to release the tax agent from tax liability for untimely transfer of withheld tax, made without distortion of tax reporting, there is formally no set of all the conditions provided for in clauses 3 and 4 of Art. . 81 Tax Code of the Russian Federation.

Thus, the Court decided to recognize the contested provisions as not contradicting the Constitution, to recognize the revealed meaning as generally binding, and to review the decisions made in relation to the Company.

In a commentary to AG, Deputy Head of Tax Law Practice Maxim Voloboev emphasized that situations similar to the one that happened to the applicant occur quite often. “The tax authorities, on formal grounds, refuse to grant exemption from liability, despite the fact that the arrears have been repaid and the budget has received compensation in the form of a penalty. Apparently, this is not enough for the tax authorities and they want to squeeze everything they can out of taxpayers. However, the Constitutional Court stood up to protect not only the interests of taxpayers, but also established, from the point of view of fairness and equality of taxation, as well as the proportionality of the deed, the actual meaning of the provisions of Art. 81 and 123 of the Tax Code of the Russian Federation,” the expert indicated.

Maxim Voloboev believes that henceforth taxpayers and tax authorities will adhere to the position of the Constitutional Court of the Russian Federation, since by virtue of paragraph 2 of the operative part of the resolution, the revealed meaning of the norms is generally binding. He added that, in addition, in recent years, regulatory authorities have been paying attention to judicial practice; The Federal Tax Service of the Russian Federation issues quarterly review letters of practice of the Supreme Court of the Russian Federation, the Constitutional Court of the Russian Federation and district courts.

The head of the legal department of Heads Consuling, Diana Maklozyan, pointed out that since the disputed article specifically indicates a list of circumstances under which the taxpayer is exempt from liability in the form of a fine, it does not give the tax authority any reason for reflection. “Accordingly, in all such cases, the tax authorities were obliged to assess a fine. A violation in the form of untimely transfer of personal income tax to the budget by the tax authority could only be established as part of an on-site tax audit,” the expert explained.

She also noted that the Constitutional Court, having considered a specific case, made a binding conclusion that if a tax agent transfers untimely personal income tax to the budget and pays a penalty, tax liability in the form of a twenty percent fine does not arise. “Now similar decisions in cases for previous periods can be appealed by taxpayers on the basis of this resolution of the Constitutional Court of the Russian Federation based on newly discovered circumstances within the time limits established by the Arbitration Procedure Code of the Russian Federation,” added Diana Maklozyan. At the same time, she noted that the Tax Code contains a fairly large number of contradictions and ambiguities, so it would be logical, based on the resolution, to make changes to the relevant part of the Tax Code of the Russian Federation.

Tax lawyer at Egorov, Puginsky, Afanasiev and Partners Law Firm Torez Kulumbegov emphasized that now all similar disputes should be resolved in favor of the tax agent (except for cases where non-transfer of tax was the result of deliberate actions), since the Constitutional Court of the Russian Federation has directly indicated that the identified they have the constitutional and legal meaning of the interrelated provisions of paragraph 4 of Art. 81 and art. 123 of the Tax Code of the Russian Federation is generally binding, which excludes any other interpretation in law enforcement practice. “Thus, similar disputes should no longer arise without making appropriate changes to the Tax Code of the Russian Federation. However, such changes would certainly make tax agents more informed about their rights, since they are not always aware of the decisions of the Constitutional Court of the Russian Federation, and local tax authorities may continue to impose fines in such cases,” the expert explained.

Lawyer of the Freitak and Sons Bureau of Attorneys Aleksey Smirnov, on the contrary, believes that legal disputes on the circumstances considered by the Constitutional Court of the Russian Federation arose quite rarely. “It is obvious that after the adoption of the resolution in question, the practice of applying these norms in the courts will change, or rather, disputes should stop altogether. In general, the significance and importance of the subject of the dispute considered by the Constitutional Court is not so great due to the insignificance of the issues and only exposes the formal approach to the enforcement of the norms of the Tax Code of the Russian Federation,” the expert concluded.