Responsibility for non-payment of taxes in 2021 and 2021

Income tax

For individuals, that is, for you and me, this is income tax.

This is the main type of tax that individuals must pay on all types of income received during the year.

The tax rate for citizens whose annual income does not exceed 512 thousand rubles is 13%. That is, those who have higher incomes are required to pay 23%.

If you are an employee, your employer will transfer income tax to the relevant authorities for you. In all other cases (selling a car, real estate, renting out an apartment), the burden of paying tax on your income falls on you.

By April 1 of the year following the reporting year, it is necessary to fill out and submit an income declaration to the tax authority at the place of residence and pay the accrued tax amount by December 1.

Liability for non-payment

If you decide not to share the income received with the state, then you must be prepared for the fact that the state has response measures for this case:

You decide not to file an income tax return - this will result in a penalty of 5% of the amount of tax payable from the date set for filing the return. If such a delay is more than 180 days, the fine will increase to 30%, and from 181 days 10% of the amount of taxes payable will be calculated for each full or partial month of delay . It should be remembered that information that you sold an apartment, land, car is received by the tax office from the authorities that participated in the registration of your transaction (notary, state registration authorities, traffic police).
For paying taxes late, a penalty will be charged, which is calculated by multiplying the amount of tax debt by the number of days of delay and by 1/300 of the refinancing rate.
The fine for violating the tax payment deadline is 20% of the unpaid tax amount. In addition, the tax office will find out whether you are intentionally evading tax or not. If evidence of deliberate evasion is obtained, the fine will increase to 40%.

Tax liability

According to Article 107 of the Tax Code of the Russian Federation, both legal entities and individuals over the age of 16 can be held liable for non-payment of taxes.

When an organization is liable to the tax inspectorate for non-payment of fees, it is not excluded that its head may be brought to administrative or criminal liability.

Tax liability is financial sanctions, that is, fines by decision of the tax authority that detected violations. At the same time, it is possible to significantly reduce the fine (at least twice) if there are mitigating circumstances: non-payment due to special circumstances (serious illness of a family member, for example), under the influence of a threat or due to official dependence, etc. Conversely, the monetary sanction can be doubled if there is an aggravating circumstance such as committing a similar offense repeatedly. The recalculation of the fine, taking into account mitigating or aggravating circumstances, may be carried out either by the appellate authority of the tax authority or by the court.

The main types of tax offenses related to non-receipt of tax payments to the budget are:

activities of an individual entrepreneur or organization without registration with the Federal Tax Service. In essence, this is a hidden non-payment of taxes; this may result in liability in the form of a sanction in the amount of 10% of income for the unaccounted period (but not less than 40,000 rubles) - Part 2 of Art. 116 of the Tax Code of the Russian Federation.
Significant violations of the rules for calculating income and expenses for taxable items (fine 10,000-30,000 rubles) - Art. 120 Tax Code of the Russian Federation.
Failure to submit to the Federal Tax Service a declaration and other information required for tax control. This is one of the frequently used ways not to pay the state; the fine can be 5% of the amount to be declared for each month, but not more than 30% and not less than 1000 rubles - Art. 119 of the Tax Code of the Russian Federation. Example No. 4 . Karpov E.N. sold his car, which he had owned for less than 3 years, but did not file a declaration. Based on the decision of the Federal Tax Service, Karpov may be held liable under this article if the cost of the car sold exceeds 250,000 rubles.
Complete non-payment or illegally reduced payment of taxes. A sanction is imposed in the form of a fine from 20 to 40% of the unpaid amount. Example No. 5 , in case of non-payment of transport tax (for 2021, payment must be made before December 1, 2020), the tax authorities will charge penalties and may bring tax liability under Art. 122 of the Tax Code of the Russian Federation. If the tax amount, for example, was 10,000 rubles, then the penalty may be 2,000 rubles. If there is evidence of direct intent, tax authorities may impose a fine of 4,000 rubles.
Violation by a tax agent of requirements to withhold amounts from income (for example, failure to pay personal income tax - for this a fine of 1,000 rubles is provided for each month of the reporting period).
Refusal to provide documents to tax authorities upon request, as well as failure to provide information about the taxpayer. An offense of this kind can be either in the form of an official refusal to provide the requested documents, or in the form of evasion from fulfilling the request. The fine for organizations and individual entrepreneurs in such cases is 10,000 rubles, for individuals – 1,000 rubles.

By nature, the listed violations of tax law are in one way or another related to non-payment of taxes and fees. So, if an individual entrepreneur provides a distorted income report to the Federal Tax Service, in most cases this is a way of not paying tax. Then there are grounds for a financial sanction.

Apartment rental tax

Nowadays, it is very common to receive both primary and additional income from renting an apartment.
If you rent out an apartment for a period of more than a year, then the rental agreement is subject to the state. registration. The tax rate on income received by an individual from renting an apartment is 13% and is calculated on the amount you received within 1 year (from January 1 to December 31). Let's look at this with a specific example: Citizen L. Rented out an apartment for a monthly fee of 10 thousand rubles. (including utility bills), starting from February to November 2021 inclusive. Thus, in 2016 she received an income of 100 thousand rubles. After receiving a declaration of income from citizen L. (by April 30 of the following reporting year, i.e. 2017), the tax office assessed a tax in the amount of 13 thousand rubles, which she must pay before December 1, 2021.

It should be noted that for foreigners renting out an apartment in the Russian Federation, the income tax will be 30%.

Liability for non-payment

Now let’s look at the problems that a citizen will have if he fails to pay tax on income received from renting out an apartment:

First of all, if you have not filed a declaration of your income at all, then you have committed an offense. This is subject to a penalty of 5% of the amount of tax payable from the date established for submitting the declaration. If such a delay is more than 180 days, the fine will increase to 30%, and from 181 days 10% of the amount of taxes payable will be calculated for each full or partial month of delay.
For paying taxes late, a penalty will be charged, which is calculated by multiplying the amount of tax debt by the number of days of delay and by 1/300 of the refinancing rate.
The fine for violating the tax payment deadline is 20% of the unpaid tax amount. In addition, the tax office will find out whether you are intentionally evading tax or not. If evidence of deliberate evasion is obtained, the fine will increase to 40%.

Returning to our example with citizen L., it is easy to calculate that in the event of tax evasion for renting out an apartment, the amount that the tax inspectorate can collect will almost double.

Basic Concepts

Understatement of the tax base, as well as its concealment, are part of the crime, which is defined as tax evasion.

The term “tax base” and all related issues, such as the procedure for its calculation, etc., are disclosed in the Tax Code of the Russian Federation. Let's consider the basic rules provided for calculating the tax base:

If the taxpayer is a legal entity, then it is obliged to calculate the tax base at the end of each tax period. Accounting registers are used as documents on the basis of which this operation is carried out. As well as other documentation that can establish information about objects that are subject to tax by law. If, when making calculations, an accountant discovers distortions in the tax base that were made earlier, then he is obliged to recalculate so that taxes are withheld in the new tax period. Provided that it is not possible to establish exactly the time period when errors were made in calculating the tax base, it should be recalculated for the reporting period when these errors were discovered.
Individual entrepreneurs and private practitioners calculate the tax base at the end of each reporting period. The basis for this is data on income and expenses.
If the payers are individuals, then the calculation is carried out on the basis of financial documents received from legal entities and individuals, which record the amounts paid to the taxpayer, which are regarded as income.

For each type of tax, an individual tax base is calculated. For example, if a property tax is taken, then either the cadastral value of the taxable object or the balance of fixed assets is taken as such.

When calculating transport tax, the base will be the engine power. To determine the income tax base, the calculations must take into account the following indicators:

The total amount of income received by the company from sales. These could be transactions for the sale of goods, property, etc.
The total amount of expenses associated with sales expenses.
The total amount of income received from non-operating activities.
Expenses incurred in connection with non-operating activities.
Profit (or loss) resulting from non-operating income or expense transactions.

The total total amount of these indicators will be the tax base.

If the personal income tax is calculated, then the sum of all the citizen’s income that is subject to taxation will be used as the tax base.

Property tax

Property tax for individuals is assessed by the tax office, a notification is sent, to which a receipt for payment of the tax is immediately attached. Property taxes must be paid by December 1 of the following year. For example, you must pay property taxes calculated for 2021 by December 1, 2021. You are not required to pay the tax until you receive notice, which will be sent to you no later than 30 days before the due date.

Liability for non-payment

Non-payment or untimely payment of property tax for individuals is subject to liability:

For paying taxes late, a penalty will be charged, which is calculated by multiplying the amount of debt by the number of days of delay and by 1/300 of the refinancing rate.
The fine for violating the tax payment deadline is 20% of the unpaid tax amount. Intentional failure to pay tax will result in a fine of 40% of the tax due.
6 months after the expiration of the payment period for debt amounting to more than 3 thousand rubles. (including penalties and fines), the tax office may send documents to the court with a claim for collection, and your funds and property may be seized.

In addition, the tax authority may send a letter to your employer stating that you are not fulfilling your obligation to pay tax debt.

The offense of incomplete payment or general non-payment of tax was committed for the first time

The answer to the question whether the fact that the taxpayer did not pay the tax for the first time or paid it in a smaller amount is a mitigating circumstance is also ambiguous.

In one case, the courts believe that if a tax offense has been committed for the first time, then it can be considered a mitigating circumstance when held accountable for incomplete payment or non-payment of tax. Such arguments are contained, in particular, in the decisions of the Arbitration Court of the Volga District dated May 26, 2016 No. F06-8342/2016 in case No. A72-1808/2015, the FAS Povolzhsky District dated March 26, 2014 in case No. A72-6157/2013 and the FAS North -Caucasian District dated March 14, 2014 in case No. A32-26775/2011.

In another case, the arbitrators are convinced that a tax violation is such even if it was committed for the first time. Tax Code of the Russian Federation in paragraphs. 3 p. 1 art. 112 does not name such cases in the list of mitigating circumstances for non-payment of taxes.

These arguments are contained in the decisions of the FAS of the East Siberian District dated July 10, 2012 in case No. A78-7098/2011 (by the decision of the Supreme Arbitration Court of the Russian Federation dated November 13, 2012 No. VAS-14171/12, the transfer of this case to the Presidium of the Supreme Arbitration Court of the Russian Federation was refused) and the FAS of the Volga District dated September 13, 2011 in case No. A55-25957/2010.

If you missed the deadline for filing a VAT return for the first time, then read the material “Is missing the deadline for filing a return for the first time a mitigating circumstance?” .

Transport tax

The Tax Code of the Russian Federation stipulates that individuals who are owners of vehicles pay transport tax on the basis of a tax notice sent by the tax authority. Owning not all vehicles requires payment of transport tax.

Not subject to taxation:

rowing boats, as well as low-power motor boats;
low-power cars for disabled people received through social security authorities;
fishing sea and river vessels;
passenger and cargo sea, river and aircraft for passenger and cargo transportation;
agricultural machinery;
wanted vehicles;

The deadline for payment of transport tax is December 1 of the following reporting year. In this case, sending a tax notice is allowed no later than 30 days before the expiration of the payment deadline and no more than three tax periods preceding the calendar year of its sending. If you have not received a notice of tax payment, in order to avoid subsequent problems, you must contact the territorial tax authority and find out the situation.

Liability for non-payment

If the owner of a vehicle evades payment of transport tax or makes untimely payment, then the tax authorities have the right to apply the following sanctions to the violator:

A penalty, which is calculated by multiplying the amount of debt by the number of days of delay and by 1/300 of the refinancing rate.
The imposition of a fine for violation of the tax payment deadline is 20% of the unpaid tax amount. Willful failure to pay tax will result in a fine of 40% of the amount of tax due.
Applying to the court to seize your money and property.

Case study . Citizen Ch., who owned a car, did not pay transport tax for more than four years, while regularly receiving notifications. In addition, the tax inspectorate sent citizen Ch. a demand for payment of tax arrears, and also assessed a penalty. Citizen Ch. ignored the demands of the tax inspectorate. After this, the tax inspectorate filed a lawsuit. By court decision, citizen Ch.’s car was seized. The bailiffs sold the car and, using the funds received, the tax debt, as well as penalties and fines for intentional tax evasion, were paid off.

Understatement of the tax base for VAT

To calculate the amount of VAT, you must first correctly formulate the tax base. Each company must do this independently, based on the characteristics of its activities. The formula for calculating the tax base itself is quite simple. However, calculating the individual components is quite difficult. Therefore, errors creep into the calculations, and as a result, the tax base is unintentionally underestimated.

Typical errors when calculating the tax base are the erroneous determination of the object of taxation; erroneous application of the tax rate and unlawful use of the “input” VAT deduction. The reasons for the errors lie in the incorrect qualification of a fact of economic life; failure to timely take into account the fact that occurred; arithmetic and logical errors in primary documents; typos; double registration of the same event based on different documents. Often the reasons for errors are the lack of original contracts, primary documents and invoices. However, the main problem is the lack of qualifications of the accountant. An employee’s lack of professionalism is expensive, and the manager has to pay for it.

However, businessmen themselves sometimes deliberately underestimate the tax base in order to obtain tax benefits, which sooner or later leads to liability under the law.

How is the tax base calculated?

The general principle of forming the tax base is the same for all VAT payers and is calculated using the formula:

NOB = (ObN x StN) – NV

NOB – taxable base.

ObN is an object of taxation. The objects of taxation for VAT purposes are: sales of goods or services on the territory of Russia or in the export regime; partial payment (i.e. advance) towards upcoming deliveries; transfer of goods or provision of services for one’s own needs on the territory of Russia; carrying out construction and installation work for own consumption; import of goods in import mode.

StN – tax rate. Today the following VAT rates apply: 0%, 10%, 20%. The application of a particular rate depends on the object of taxation. The rate that should be used when calculating the taxable base can be determined using Article 164 of the Tax Code of the Russian Federation.

NV – tax deductions. Tax deductions are the amount of tax by which the tax base is reduced. Typically, these amounts are paid to suppliers as part of the cost of goods or services.

Land tax

Land tax for individuals must be paid to land owners.

Land tax is a local tax, and its rate is set by municipal authorities. For individuals, land tax is calculated by the tax office. Every year, the tax office no later than 30 days before December 1 of the following year sends tax notices regarding the payment of land tax. You are not required to pay land tax until you receive such a document.

It should be noted that from 01/01/2015, individuals are required to report to the tax authority by December 31 of the year following the expired tax period about an object for which a tax notice was not received.

For example, citizen V. bought a plot of land in May 2015. If he does not receive a tax payment notice by November 1, 2021, he must inform the tax office by December 31, 2021 that he owns a land plot. Failure to do so may subsequently be considered tax evasion.

Liability for non-payment

Failure to pay land tax by individuals is an offense and is subject to liability:

Accrual of penalties for late payment of tax, which is calculated by multiplying the amount of debt by the number of days of delay and by 1/300 of the refinancing rate;
The imposition of a fine for violation of the tax payment deadline is 20% of the unpaid tax amount. Failure to pay tax will result in a 40% fine.

For example, if the amount of land tax is 8 thousand rubles, then the fine will be 1600 rubles, and for intentional actions - 3 thousand 200 rubles. Typically, if you received tax notices but ignored them, the tax office has grounds to charge you with intentional tax evasion.

It should be noted that the tax inspectorate can collect tax debts, penalties and fines from an individual only by a court decision.

If there is a court decision to collect tax debts, and it is not executed, then bailiffs, in order to ensure the execution of the court decision, can foreclose on the debtor’s wages, his property, and prohibit travel abroad.

Reasons for holding legal entities accountable

Who is responsible before the law in organizations is indicated in internal documentation.
An employee who performed duties for a colleague who is on vacation will be held fully accountable before the law. Read also: The difference between individual entrepreneurs and the self-employed

There are the following collection methods:

fines;
forced labor for up to 5 years;
arrest;
restriction of freedom up to 6 years;
a fine for non-payment of personal income tax in the amount of 20% of the debt;
deprivation of the opportunity to work in a leadership position.

More stringent measures apply to a group of people than to an individual.

Criminal liability for non-payment of taxes by individuals

Failure to pay any type of tax by individuals may also result in the individual being brought to criminal liability for tax evasion (Article 198 of the Criminal Code of the Russian Federation).

Criminal liability for intentional non-payment of taxes occurs in the case of large (more than 600 thousand rubles) and especially large (more than 3 million rubles) amounts of tax debt.

The punishment under this article is quite severe. In addition to the criminal record you received, you will have to pay a fine from 100 thousand rubles to 300 thousand rubles. Arrest for a term of 4 to 6 months, or imprisonment for a term of up to one year is also possible. If the amount of arrears is particularly large, the fine increases to 200-500 thousand rubles. The term of imprisonment is increased to 3 years.

The state may release the debtor from criminal liability if the damage caused is fully repaid . In this case, even the criminal case initiated will be terminated. But this option is valid only once, since the person who commits a tax crime for the first time is exempt from criminal liability.

If you have any questions about non-payment of taxes by an individual, or you find yourself in an unpleasant situation with bailiffs, then our online duty lawyer is ready to advise you on this issue for free.

Circumstances that mitigate or remove guilt

Evasion of taxes and fees hardly meets the criteria of insignificance of the offense, in accordance with Art. 2.9 of the Code of Administrative Offenses of the Russian Federation, when release is possible.

Mitigating circumstances under the Code of Administrative Offenses of the Russian Federation are associated either with the person’s attitude to what happened: repentance, voluntary participation in making amends for the damage, or with the personality of the offender: a pregnant woman, a minor, a severe emotional state. Aggravating ones are associated with aggravation of damage, increasing the social danger of the act.

In criminal law, the same principles apply when identifying similar circumstances. The desire to make amends and repentance are always regarded as a sign of correction and therefore can be considered as a reason for mitigating punishment. On the contrary, relapse, committing an offense as part of a group, etc. indicate a person’s danger to society.