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Do tax authorities have the right to collect tax arrears from the general director or accountant?

By 10.01.2018 No Comments

In early December, the Constitutional Court of Russia gave an answer to a question that had long been tormented practitioners: Is the tax right to collect tax arrears from the general director or accountant if the company went bankrupt or liquidated, and is the court judgment obligatory for this particular employee?

Comments by Mikhail German, Senior Lawyer of the Law Firm “Legal Studio”

On December 8, 2017, the Constitutional Court of the Russian Federation in the Resolution No. 39-P (in the case on verification of the constitutionality of the provisions of Articles 15, 1064 and 1068 of the Civil Code of the Russian Federation, subitem 14 of paragraph 1 of article 31 of the Tax Code of the Russian Federation, Article 199.2 of the Criminal Code of the Russian Federation and part 1 of article 54 of the Criminal Code of the Russian Federation Communications in connection with the complaints of the citizens G.G.Ahmadieva, S.I.Lysiak, A.N.Sergeeva) clarified the procedure for collecting from natural persons the compensation for the harm caused by tax crimes in the amount of tax arrears and penalties not submitted by the taxpayer organization in question to the corresponding budget.

The reason for appealing to the Constitutional Court was the fact that by the decision of the courts to collect penalties from retirees – a former accountant G. Akhmadeyeva and ex-director of the municipal enterprise S.Lysiak as per the lawsuit filed by the tax authorities, for the damages caused by them through committing crimes (tax evasion and concealment of funds or property of the organization) in the amount of 2.7 and 8.2 million rubles, respectively. With respect to G. Ahmadeeva the criminal case was dismissed by amnesty. In relation to S. Lysiak  the case was also first dismissed by amnesty, and then again resumed. The former director general of the distillery A. Sergeyeva was found guilty of tax evasion by the court through leading an organization that committed  the tax evasion, the court recovered  losses in the amount of 142.5 million rubles as compensation for damage equal to the amount of tax payments not contributed.

The appellants believed that the disputed norms allowed courts, responding to claims of the tax authorities and the prosecutor’s offices, recover from individuals who were prosecuted for tax crimes damages caused to the state by non-payment of taxes not by the defendants themselves, but by the organizations whose officials they were. The appellants were also of the opinion that the damage was subject to indemnity directly at the expense of the taxpayer, that is, the legal entity.

Thus, in law enforcement practice, due to the uncertainty of the concept of “harm” contained in the legislation, the question arose as to whether the disputed norms, in their normative legal system and systematic interpretation, allow the amount of unpaid taxes by an organization to be equated with the harm caused by an individual.

When considering the appeals of citizens, the Constitutional Court of the Russian Federation came to the conclusion that being a legal entity, the organization participates in an illegal act in the tax field indirectly – through individuals, usually the head and the accountant. Acting in their own interests, as well as in the interests of their organization, they commit an offense or violation and carry administrative or criminal responsibility. At the same time, subjects of tax crimes, whose illegal actions led to non-receipt of taxes in the budget, are not exempted from the obligation to reimburse property damage inflicted by them.

The provisions of Articles 15, 1064 of the Civil Code of the Russian Federation and subitem 14 of paragraph 1 of Article 31 of the Tax Code of the Russian Federation in their normative unity do not contradict the Constitution of the Russian Federation.

They presume the possibility of collecting from natural persons, on the claims of prosecutors and tax authorities, for the harm caused by tax crimes, in the amount not received in the appropriate budget from the taxpayer organization, tax arrears and penalties.

At the same time, the Constitutional Court of Russia unambiguously pointed out the inadmissibility of the collection of fines imposed on the taxpayer organization in such cases.

Another significant circumstance to which attention was drawn was the fact that the termination of the non-rehabilitating circumstances of the criminal case against these persons, as well as the indictment for the commission of tax crimes, can not be considered by the court as unconditionally confirming their guilt in causing property damage.

It also excludes the collection of harm caused by late payments from natural persons accused of committing a tax offense before the information on the termination of the taxpayer’s organization is submitted to EGRUL, or before the court establishes that this organization is in fact invalid and recovery of debts from it is impossible, except for cases , when the court established that a legal entity serves only as a “cover” for the actions of the controlling individual.

At the same time, when determining the liability of an individual, the court is entitled to take into account his property status, the fact of enrichment as a result of a tax offense, the degree of guilt, the criminal punishment imposed on him, as well as other essential circumstances.