Mitigating circumstances for a tax offence. Mitigating circumstances when committing a tax offense

Circumstances mitigating liability are recognized (clause 1, article 112 of the Tax Code of the Russian Federation):

1) the commission of an offense as a result of a combination of difficult personal or family circumstances;

3) a new tax offense must be committed within 12 months from the date of entry into force of a court decision or a tax authority on the application of a tax sanction for a similar tax offense (clause 3, article 112 of the Tax Code of the Russian Federation).

The circumstance aggravating tax liability is also implemented through the rules contained in Art. 114 NK. When a court or tax authority establishes a sign of repetition, the amount of the fine is doubled in comparison with the amount established by the corresponding special article of Ch. 16 or 18 of the Tax Code of the Russian Federation (Clause 4, Article 114 of the Tax Code of the Russian Federation). It seems that this norm of the Tax Code of the Russian Federation does not contradict the constitutional principles of proportionality and fairness of punishment, since the very fact of the systematic nature of obviously illegal activities rightly entails an increase in the size of the sanction.

2) with individual who is not an individual entrepreneur - to a court of general jurisdiction.

The tax authorities can apply to the court with a claim for the collection of fines (clause 1, article 115 of the Tax Code of the Russian Federation):

from an organization and an individual entrepreneur - in the manner and within the time limits provided for in Art. 46 and Art. 47 of the Tax Code of the Russian Federation;

from an individual who is not an individual entrepreneur - in the manner and terms provided for in Art. 48 of the Tax Code of the Russian Federation.

The procedure for mitigating liability for non-compliance with tax provisions is regulated by a number of legislative and by-laws. The basic document establishing the general conditions for reducing liability for violations of tax regulations is the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation). Its norms are consistently supplemented, explained and concretized by by-laws, as well as conclusions from judicial practice.

In particular:

1. The Tax Code obliges to reduce punitive tax sanctions by no less than half in the presence of at least one mitigating condition (clause 3, article 114 of the Tax Code of the Russian Federation). At the same time, the Ministry of Finance of the Russian Federation explains that even the minimum fine is subject to reduction (letter No. 03-02-08/7 dated January 30, 2012). In practice, the tax service, as a rule, reduces the amount of penalties by exactly 2 times, although judicial practice also knows cases of reducing punishment by tens or even hundreds of times (for example, the decisions of the FAS ZSO dated 10/15/2010 in case No. A75-430 / 2010 and FAS DVO dated December 21, 2011 No. F03-5882/2011 in case No. A24-1513/2011), which corresponds to the provisions of the Decree of the Plenums of the Supreme Court of the Russian Federation No. 41 and the Supreme Arbitration Court of the Russian Federation No. 9 of 06/11/1999.
2. Special circumstances do not apply to penalties, therefore, their amount cannot be reduced in this way (paragraph 5 of the resolution of the Constitutional Court of the Russian Federation of December 17, 1996 No. 20-P).
3. The provisions of Art. 112 of the Tax Code of the Russian Federation on the list of circumstances, the presence of which contributes to the reduction of penalties, are not mandatory. This means that the list of reasons mitigating the tax penalty can be expanded (subclause 3, clause 1, article 112 of the Tax Code of the Russian Federation, information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 17, 2003 No. 71).

Types of circumstances mitigating responsibility for committing a tax offense

In the list of mitigating conditions named in paragraph 1 of Art. 112 of the Tax Code of the Russian Federation, includes:

1. The primary commission of a tax violation under the influence of adverse factors (personal, family).
2. Forced commission of a violation due to threats, coercion or official, material or other subordination.
3. Committing a violation by a citizen due to a difficult financial situation.
4. Other factors recognized by the court or tax authorities as mitigating factors.

An analysis of judicial practice makes it possible to divide the conditions under which the amount of tax sanctions is reduced into several groups:

1. General circumstances (can be used by all subjects), which include:

• the primacy of the violation;
• inadvertence;
• admission of guilt;
• complex financial position subject;
• availability of the status of a city-forming enterprise (decision of the 6th Arbitration Court of Appeal dated January 17, 2012 No. 06AP-5792/2011 in case No. A73-8890/2011);
• socially significant activity of the subject.

1. Special (can only be applied to certain tax violations):

• if the declaration was submitted later than the deadline, then circumstances such as the absence of damage to the budget and an insignificant period of delay may be recognized as mitigating;
• if the tax has not been paid in full, then mitigating circumstances such as the independent identification of errors by the taxpayer, repayment of debts before being held accountable and overpayment of other tax payments can be recognized as mitigating ones.

1. Specific (only for citizens or individual entrepreneurs), applicable if available:

• dependents;
• disability;
• serious illness (including a relative);
• advanced age;
• credit obligations.

Procedure for applying extenuating circumstances

According to the current legislation, during the audit, tax specialists must independently identify the presence of conditions that reduce liability. However, it is more expedient to state all available significant factors that can affect the reduction of tax sanctions in a petition that should be sent to the tax service within a month from the date of receipt of the verification documentation (clause 6, article 100, clause 5, article 101.4 of the Tax Code of the Russian Federation) .

Don't know your rights?

A free-form petition is drawn up, however, in order to obtain the greatest effect, the document must be drawn up in as much detail as possible, with special emphasis on the presence of extenuating circumstances in case of a tax violation. To do this, the application must indicate:

1. The name of the division of the tax authority where the document is sent.
2. The date of the check.
3. Details of the document drawn up based on the results of verification activities.
4. List of detected violations and imposed sanctions.
5. A reference to legislation that establishes the reduction of sanctions under special conditions.
6. List of mitigating circumstances available to the audited subject.
7. Please reduce the amount of sanctions by at least 2 times.

The date and signature of the applicant complete the document.

Aggravating circumstance - what is an aggravating circumstance in case of a tax violation?

Along with mitigating penalties, tax legislation also provides for aggravating factors. According to paragraph 2 of Art. 112 of the Tax Code of the Russian Federation, an aggravating circumstance for a tax offense is a violation committed by an entity that has already been punished for the same violation.

At the same time, the previous bringing of the subject to liability is considered only within 12 months from the date of the decision by the judicial or tax authority (clause 3, article 112 of the Tax Code of the Russian Federation). If during the specified period the subject was not held accountable (i.e., more than a year has passed since the previous decision was made, or there has been no prosecution at all during this time), then there are no grounds for tightening the measures applied. This is stated in paragraph 52 of the letter of the Federal Tax Service of the Russian Federation of August 12, 2011 No. SA-4-7 / [email protected] and Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 25, 2010 No. 1400/10. If there is a condition that increases liability, tax sanctions are levied in an amount that is 100% greater than those provided for by law for a violation in the general case.

If several tax violations are detected during the audit, sanctions are imposed on the subject for each of them separately without absorbing all the others by a more severe sanction.

What are the grounds for excluding guilt in committing tax violations?

From the circumstances that can reduce the sanction burden for non-compliance with tax laws, it is necessary to distinguish and delimit the conditions under which the guilt of the violator is completely excluded (i.e., no punishment is applied).

To such conditions, according to Art. 111 of the Tax Code of the Russian Federation, include:

1. Natural disasters, insurmountable circumstances, emergencies that led to a violation of tax regulations.
2. Painful or other condition in which a citizen who committed a tax violation did not realize the significance and consequences of his actions and inaction.
3. Implementation of clarifications on the application of tax legislation from tax and other government agencies.
4. Other circumstances that will be recognized by a judicial or tax authority as conditions that cancel the guilt of the violator and the punishment for the violation.

Thus, when tax violations are detected, Special attention pay attention to the circumstances, the presence of which can reduce the sanctions burden. It must be understood that such circumstances can include not only the situations listed in the legislation, but also other life facts worthy of attention, therefore it is advisable in any case to contact the tax authority with an explanation of the violation and a request to reduce the amount of the fine.

Provides for the possibility of reducing the amount of fines imposed on the basis of the Tax Code of the Russian Federation for committing tax offenses, in the event that mitigating circumstances are established. So, in particular, it is determined that in the presence of at least one mitigating circumstance, the amount of the fine is subject to reduction by at least two times compared to the amount established by the relevant article of Ch. 16 of the Tax Code of the Russian Federation for committing a tax offense.

Circumstances mitigating tax liability are listed in paragraph 1 of Art. 112 of the Tax Code of the Russian Federation. In contrast to the grounds specified in paragraph 1 of Art. 111 of the Tax Code of the Russian Federation (which exclude tax liability), the circumstances provided for in paragraph 1 of Art. 112 of the Tax Code of the Russian Federation, do not completely exclude the occurrence of tax liability, but only reduce the amount of the imposed fine.

As mitigating circumstances, Art. 112 of the Russian Federation, the following are established:

Committing an offense due to a combination of difficult personal or family circumstances;

Commission of an offense under the influence of threat or coercion or due to material, service or other dependence;

The difficult financial situation of an individual held liable for committing a tax offense;

Other circumstances that the tax authority or the court may recognize as mitigating liability.

Thus, the list of mitigating circumstances is not closed. As mitigating circumstances, both the tax authorities and the court may consider such as the presence of dependents (minor children, elderly relatives, disabled persons), retirement age, lack of income, significant loan obligations, disproportionate penalties applied to the severity of the offense and other circumstances.

If there are extenuating circumstances after receiving the act tax audit the taxpayer should:

1. Apply to the tax authority that conducted the audit with an application (petition) to reduce the amount of additionally assessed fines, in which to state the grounds on which the amount of tax sanctions can be reduced.

2. The submitted application (petition) must be accompanied by documents (their copies) confirming the presence of mitigating circumstances.

In case of disagreement with the amount of sanctions applied by the tax authority for committing a tax offense, in the event that the amount of the fine was not reduced in the presence of extenuating circumstances, or, in the opinion of the person held liable for tax liability, it was not sufficiently reduced, the taxpayer may appeal the decision to a higher tax authority .

In the complaint, the applicant must also indicate mitigating circumstances in accordance with which the amount of the fine is subject to reduction and attach documents confirming the arguments set forth.

At the same time, taxpayers should take into account that in the presence of mitigating circumstances, only the amount of penalties applied can be reduced, the amount of taxes and penalties on these grounds cannot be reduced.

"Russian tax courier", 2008, N 20

Under certain circumstances, liability for committing a tax offense may be mitigated or aggravated. What factors make it possible to reduce the amount of tax sanctions, and which ones, on the contrary, lead to a tougher measure of responsibility? About this in the article.

By virtue of the requirements of paragraph 5 of Art. 101 of the Tax Code of the Russian Federation the head (deputy head) of the tax authority during the consideration of tax audit materials<1>establishes whether the person in respect of whom the tax audit act has been drawn up has committed a violation of the legislation on taxes and fees, whether the identified violations form part of a tax offense, whether there are grounds for holding the person liable for committing a tax offense.

In addition, circumstances are identified that exclude the guilt of a person in committing a tax offense, or circumstances that mitigate or aggravate responsibility for committing a tax offense.

Similar requirements are enshrined in paragraph 7 of Art. 101.4 of the Tax Code of the Russian Federation. They relate to the procedure for considering the act, which recorded the facts of violation of the legislation on taxes and fees, as well as documents and materials submitted by the person who committed the tax offense.

So, circumstances mitigating or aggravating responsibility for committing a tax offense can be identified only after the very fact of a tax offense, the specific composition of the offense and other grounds for bringing a certain person to tax liability have been established.

Types of circumstances mitigating and aggravating tax liability are given in Art. 112 of the Tax Code of the Russian Federation.

Circumstances mitigating or aggravating responsibility for committing a tax offense are established by the court or tax authority considering the case and are taken into account when applying tax sanctions. This is enshrined in paragraph 4 of Art. 112 of the Tax Code of the Russian Federation.

Circumstances mitigating tax liability

In accordance with paragraph 1 of Art. 112 of the Tax Code of the Russian Federation, circumstances mitigating responsibility for committing a tax offense are recognized:

• committing an offense as a result of a combination of difficult personal or family circumstances;
• commission of an offense under the influence of threat or coercion or due to material, service or other dependence;
• the difficult financial situation of an individual held liable for committing a tax offense (applied from January 1, 2007);
• other circumstances that may be recognized by the court or tax authority considering the case as mitigating liability.

Note. The list of mitigating circumstances is open and is not limited to these factors.

These circumstances are personal in nature, that is, they can arise exclusively in relation to an individual and are associated with his personality. This is due to the fact that in the formation of legislation on taxes and fees, borrowing of legal norms was used. And first of all, the provisions of the legislation on administrative responsibility and criminal legislation, in which individuals are the subject of responsibility, were taken into account.

The absence of extenuating circumstances applicable directly to legal entities is traditionally associated with the following. According to the tax legislation, the guilt of an organization in committing a tax offense is determined depending on the guilt of its officials or its representatives, whose actions (inaction) led to the commission of this tax offense. The basis is paragraph 4 of Art. 110 of the Tax Code of the Russian Federation. This means that when applying tax liability to a taxpaying organization, mitigating circumstances may be taken into account that apply to precisely those officials or representatives of the organization whose actions (inaction) led to the commission of a specific tax offense. However, such a factor as the difficult financial situation of an individual is taken into account only if it is this person who is held liable for committing a tax offense.

Note. If there is at least one circumstance mitigating liability, the amount of the fine levied for committing a tax offense is reduced by at least two times compared to the amount established by the relevant article of the Tax Code (clause 3 of article 114 of the Tax Code of the Russian Federation).

Other circumstances mitigating tax liability

From the sources on the basis of which specific circumstances arise in practice that mitigate tax liability, it is necessary to single out administrative and criminal legislation, judicial practice and the existing tax policy.

Circumstances mitigating administrative responsibility are recognized (Article 4.2 of the Code of Administrative Offenses of the Russian Federation):

• repentance of the person who committed an administrative offense;
• voluntary reporting by a person about an administrative offense committed by him;
• prevention by the person who has committed an administrative offense of the harmful consequences of an administrative offense, voluntary compensation for the damage caused or elimination of the damage caused;
• committing an administrative offense in a state of strong mental agitation (affect) or in the event of a confluence of difficult personal or family circumstances;
• commission of an administrative offense by a minor;
• commission of an administrative offense by a pregnant woman or a woman with a small child. In accordance with Art. 28 of the Civil Code of the Russian Federation, minors include minors under the age of 14.

The first three types of extenuating circumstances in a somewhat transformed form are currently used by the tax authorities as part of their work aimed at voluntary refusal of taxpayers to use tax evasion schemes.

Mitigation of tax liability due to the commission of a tax offense by a minor can be applied in practice. The fact is that according to paragraph 2 of Art. 107 of the Tax Code of the Russian Federation, an individual is held liable for committing tax offenses from the age of 16. At the same time, a citizen is recognized as an adult upon reaching the age of 18 (clause 1, article 21 of the Civil Code of the Russian Federation).

The commission of a tax offense in a state of strong mental agitation (affect) or in the event of a confluence of difficult personal or family circumstances, as well as the commission of a tax offense by a pregnant woman or a woman with a minor child, in principle, can be recognized as circumstances mitigating tax liability. It should be noted that these circumstances are in fact specific cases of a confluence of difficult personal or family circumstances. Such factors are expressly provided for in paragraph 1 of Art. 112 of the Tax Code of the Russian Federation as mitigating liability.

The use of mitigating circumstances established in criminal law is due to the fact that, under certain conditions, certain tax offenses can develop into criminal offenses. Therefore, in a number of cases, borrowing relevant circumstances from the Criminal Code is quite reasonable and appropriate.

According to paragraph 1 of Art. 61 of the Criminal Code of the Russian Federation, the following are recognized as mitigating circumstances:

• the commission of a crime of minor gravity for the first time due to a random combination of circumstances;
• minority of the perpetrator;
• pregnancy;
• the presence of minor children in the perpetrator;
• committing a crime due to a combination of difficult life circumstances or out of compassion;
• committing a crime as a result of physical or mental coercion or due to material, service or other dependence;
• committing a crime in violation of the conditions of legality of necessary defense, detention of a person who committed a crime, extreme necessity, reasonable risk, execution of an order or order;
• illegality or immorality of the behavior of the victim, which was the reason for the crime;
• confession, active contribution to the disclosure of the crime, the exposure of other accomplices in the crime and the search for property obtained as a result of the crime;
• provision of medical and other assistance to the victim immediately after the commission of the crime, voluntary compensation for property damage and moral damage caused as a result of the crime, other actions aimed at making amends for the harm caused to the victim.

Committing a tax offense for the first time cannot serve as a circumstance mitigating liability. After all, on the basis of paragraph 2 of Art. 112 of the Tax Code of the Russian Federation, the repetition of a similar offense is considered as an aggravating circumstance. Under such conditions, the absence of an aggravating circumstance in itself is not recognized as a circumstance mitigating responsibility for committing a tax offense<2>. It only shows that there are no aggravating circumstances.

The concept of a crime of minor gravity, committed as a result of a random combination of circumstances, is based on the special qualification of crimes for the purposes of criminal law. For this reason, it cannot be mechanically transferred to relations regulated by the legislation on taxes and fees.

The minority of the perpetrator was mentioned above.

Pregnancy, the presence of young children in the perpetrator, the commission of a tax offense due to a combination of difficult life circumstances, as already noted, are specific cases of a combination of difficult personal or family circumstances expressly provided for in the Tax Code as mitigating liability.

Note. The other grounds specified in paragraphs. "g", "h" and "k" paragraph 1 of Art. 61 of the Criminal Code of the Russian Federation cannot be mechanically transferred to the practice of applying tax legislation.

The commission of a tax offense as a result of physical or mental coercion or due to material, service or other dependence is also established in paragraphs. 2 p. 1 art. 112 of the Tax Code of the Russian Federation as a mitigating tax liability.

Giving oneself up can be regarded as a mitigating circumstance. But, as a rule, this factor is more aimed at the voluntary refusal of taxpayers to use various tax evasion and minimization schemes.

Judicial practice has developed the following list of circumstances mitigating tax liability:

• the insignificance of missing the deadlines established by the Tax Code, in cases where the omission or violation of such a deadline is a qualifying sign of a tax offense. For example, when recovering from the taxpayer a fine under Art. 119 of the Tax Code of the Russian Federation for the late submission of the income tax return, the arbitration court took into account as a mitigating circumstance the insignificance of missing the deadline - one day<3>;
• difficult financial situation of a legal entity<4>.

Note. The absence of guilt, according to tax legislation, not only mitigates tax sanctions, but also completely relieves a person from liability (Article 111 of the Tax Code of the Russian Federation).

As for other circumstances recognized by arbitration courts as mitigating liability, we note the following. Sometimes the courts take into account as such circumstances that exclude the guilt of a person in committing a tax offense and provided for in Art. 111 of the Tax Code of the Russian Federation, for example, extraordinary and insurmountable circumstances:

• dependent on the influences of the external environment, the nature of the activity of a legal entity, which consists in the production and sale of agricultural products<5>;
• loss of accounting documentation due to the death of the chief accountant<6>.

In addition, the fact of the absence of intent to commit a tax offense is also not considered a circumstance mitigating tax liability.

The very circumstance recognized as mitigating responsibility must be in a causal relationship with the offense committed. Thus, the fact that the taxpayer is a state institution does not serve as a basis for reducing the amount of the fine for failure to submit documents requested by the tax authority. In such a situation, there is no connection between the status of a taxpayer as public institution and committed offense<7>.

The status of a taxpayer and the nature of its activities should not be qualified as an independent basis for mitigating liability, in particular, in cases where the taxpayer is recognized as a city-forming enterprise, budgetary institution, non-profit organization, belongs to the category of the largest taxpayers, is included in the list of strategic joint-stock companies or is in the process of bankruptcy.

Situations where liability was mitigated due to incompetence and lack of qualifications in tax matters both by the taxpayer and his accounting staff, usually living in rural areas, can be regarded as exceptionally legal incidents. Similar decisions have been taken by arbitration courts more than once. They cited as mitigating factors:

• ignorance by the taxpayer of the current tax legislation;
• low qualification of the accountant of the enterprise;
• the delusion of the entrepreneur - the head of the peasant farm, who believed that he was fulfilling all the obligations of the taxpayer correctly, since he had concluded an agreement with the accountant and relied on his experience and knowledge.

In other words, improper performance by an employee of an organization of his labor duties is not a circumstance mitigating the responsibility of a taxpaying organization.<8>.

The current tax policy assumes and encourages taxpayers to independently clarify their obligations to the budget, including during and based on the results of desk and field tax audits. Therefore, as circumstances mitigating tax liability, a set of actions related to the clarification of tax liabilities is accepted:

• submission by the taxpayer of an amended tax return, which indicates the amount of tax in an amount greater than in the declaration previously submitted for the same period;
• transfer by the taxpayer to the budget of the amount of tax payable on the basis of an updated tax declaration (calculation);
• payment of the relevant penalties.

Note. The good faith of the taxpayer in itself is not taken into account as a mitigating circumstance, since the tax legislation is based on the presumption of good faith behavior of the taxpayer until proven otherwise. Conscientious fulfillment of the obligations stipulated by the Tax Code is the norm of behavior (Resolution of the Federal Antimonopoly Service of the West Siberian District of May 30, 2007 in case N F04-3311 / 2007 (34594A27-37)).

These circumstances, in fact, are the conditions for exemption from tax liability, provided for in paragraph 4 of Art. 81 of the Tax Code of the Russian Federation. True, with the only exception that, according to the said norm, the taxpayer must take the listed actions before he learned about the discovery by the tax authority of the failure to reflect or incomplete reflection of information in the tax return, as well as errors leading to an underestimation of the amount of tax payable, or about appointment of an on-site tax audit for a tax for a given period.

However, if the taxpayer has not fulfilled all the conditions for exemption from liability specified in Art. 81 of the Tax Code of the Russian Federation, there remains the potential for its mitigation.

Thus, self-identification and correction by the taxpayer of errors in tax returns and the filing of an application with the tax authority for their addition and change can be recognized as circumstances mitigating tax liability.<9>.

Such circumstances are taken into account as mitigating ones, even if, after receiving the act of a cameral or field tax audit, the taxpayer independently clarified his obligations to the budget for the amounts discovered by the tax authority as a result of the tax audit. Although in this case, self-identification is out of the question.

From a formal point of view, the listed actions that were performed before the final decision was made based on the results of consideration of tax audit materials are recognized as committed by the taxpayer as part of the independent identification of arrears<10>.

Circumstances aggravating tax liability

The only legally established circumstance that aggravates tax liability is the commission of a tax offense by a person previously held liable for a similar offense (clause 2, article 112 of the Tax Code of the Russian Federation). A person from whom a tax sanction has been levied is considered subject to this sanction within 12 months from the date the decision of the court or tax authority comes into force. So it is said in paragraph 3 of Art. 112 of the Tax Code of the Russian Federation.

However, an increase in the amount of the fine is permissible only if the person held liable, taking into account the aggravating circumstance, committed an offense after being held liable for a similar offense.<11>.

Other circumstances aggravating responsibility for tax offenses are not provided by the legislation.

The procedure for accounting for circumstances mitigating and aggravating tax liability

As already mentioned, if there is at least one circumstance mitigating liability, the amount of the fine is reduced by at least two times compared to the amount established by the relevant article of the Tax Code (clause 3 of article 114 of the Tax Code of the Russian Federation). The Tax Code defines only the minimum limit for reducing the tax sanction. Therefore, the court, based on the results of an assessment of the 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 two times<12>.

Let's assume that at the same time there is a circumstance mitigating tax liability and a circumstance aggravating it. None of them has more power over the other. That is, with the simultaneous presence of documented mitigating and aggravating circumstances, it is unacceptable to accept only mitigating or only aggravating circumstances. They must be considered in aggregate for each episode of a tax offense.

In other words, the presence of aggravating circumstances (repeated tax liability) is not an obstacle to the simultaneous reduction by the court of tax sanctions by virtue of Art. 114 of the Tax Code of the Russian Federation in the presence of appropriate mitigating circumstances. After all, the tax legislation does not provide for a ban on the application of the norms of paragraph 3 of Art. 114 of the Tax Code of the Russian Federation in the presence of circumstances aggravating the liability of the taxpayer.

Note. If there is a circumstance that aggravates tax liability, the amount of the fine for a tax offense is increased by 100% (clause 4, article 114 of the Tax Code of the Russian Federation).

For example When deciding on a case, the arbitration court, when considering the issue of imposing sanctions for tax offenses, establishes both mitigating and aggravating circumstances and takes them into account in the aggregate<13>.

Is the arbitral tribunal, on its own initiative, entitled to take into account circumstances mitigating or aggravating liability?

The arbitration court is not entitled to reduce the amount of the fine collected from the taxpayer for the commission of a tax offense on its own initiative without the defendant's petition to that effect. Otherwise, the tax authority will be deprived of the opportunity to exercise the procedural right provided for in Part 1 of Art. 41 of the Arbitration Procedure Code of the Russian Federation, to bring arguments and objections to this issue <14>.

In addition, a taxpayer who is required to collect penalties, who did not appear at the court session and did not file petitions or objections regarding the amount of tax sanctions, bears the risk of the consequences of failure to perform the relevant procedural actions specified in Part 2 of Art. 9 APC RF. Thus, in the absence of an appropriate application to reduce the amount of penalties collected, the court does not have the right, on its own initiative, to apply the provisions of Art. Art. 112 and 114 of the Tax Code<15>.

Let us recall that until January 1, 2006, tax sanctions were collected from taxpayers only in court (clause 7, article 114 of the RF Tax Code as amended until 2006). In 2006, tax sanctions were levied in an indisputable manner, not exceeding a certain amount. Since 2007, these are any tax sanctions, regardless of their size. Considering this circumstance, arbitration courts may, within the framework of considering a case on invalidating a decision of a tax authority, according to which a taxpayer or tax agent was held liable, reduce the amount of tax sanctions due to the application of extenuating circumstances on the basis of Art. Art. 112 and 114 of the Tax Code of the Russian Federation. After all, when collecting tax sanctions in an indisputable manner, the taxpayer or tax agent has no other opportunity to challenge the amount of the accrued sanctions.<16>.

However, according to the author, the taxpayer or tax agent, within the framework of the requirement to invalidate the decision of the tax authority on imposing tax liability, could freely declare the existence of circumstances mitigating his responsibility. Therefore, the court, considering the application of the taxpayer to invalidate the decision of the tax authority to bring to tax liability, should not reduce the amount of the fine, taking into account mitigating circumstances, since it is not entitled to go beyond the stated claims<17>.

S.A. Tarakanov

Control Department

1. Circumstances mitigating responsibility for committing a tax offense are:

1) the commission of an offense as a result of a combination of difficult personal or family circumstances;

2) the commission of an offense under the influence of threat or coercion or due to material, service or other dependence;

2.1) the difficult financial situation of an individual held liable for committing a tax offense;

3) other circumstances that the court or tax authority considering the case may recognize as mitigating liability.

2. An aggravating circumstance shall be the commission of a tax offense by a person previously held accountable for a similar offense.

3. A person from whom a tax sanction has been levied shall be deemed to have been subject to this sanction within 12 months from the date of entry into force of a court decision or a tax authority.

4. Circumstances mitigating or aggravating liability for committing a tax offense shall be established by the court or tax authority considering the case and taken into account when applying tax sanctions.

Commentary on Art. 112 Tax Code of the Russian Federation

Commented Art. 112 of the Tax Code defines the circumstances that affect the size of the tax sanction: these are mitigating and aggravating liability.

Circumstances mitigating liability for a tax offense are:

a) commission of an offense due to:

difficult personal circumstances. In other words, these circumstances are inextricably linked with the personality of the offender himself (for example, his serious disease). At the same time, we are talking not only about individuals as taxpayers (tax agents), but also about those cases when the latter, performing the functions of managers (other persons exercising managerial functions) of an organization, commit offenses under a combination of difficult personal circumstances;

family circumstances. We are talking about the circumstances related to the family of the taxpayer (tax agent) - an individual or the head (another person performing managerial functions) of the organization. These circumstances can be very diverse: a serious illness of a spouse that requires significant expenses for treatment, poor financial situation of the family, death of family members, etc. In any case, it is necessary to give an assessment of the mentioned circumstances based on the specific situation, since the presence of difficult personal and family circumstances in itself does not exempt from paying tax;

b) commission of a tax offense under the influence (or by virtue of):

threats. It can have a variety of manifestations: a threat in verbal form, in the form of some actions (for example, a gun is put to the temple) that represent a clear danger. The threat may concern harm to the interests, property, intangible benefits (life, health, honor, etc.) not only of the taxpayer himself, but also of his family members, his relatives, employees of the organization he leads, etc. The threat of undermining the business reputation of an organization, an individual entrepreneur, etc. is also taken into account;

coercion. This refers to both physical (violence, torture, beatings, causing acute pain, other physical and moral suffering), and mental (massive impact on the consciousness of a person, including through hypnosis) coercion;

material dependence. For example, an entrepreneur commits a tax offense at the direction of a person who provides him with housing, means of production, energy, raw materials, semi-finished products, etc. (under the threat that the individual entrepreneur may lose the mentioned benefits if he does not comply with the instructions);

service dependency. This refers to the pressure of a person who is dependent on the taxpayer (tax agent);

other dependency. An example is the relationship between interdependent persons (Article 20 of the Tax Code of the Russian Federation);

c) other circumstances that the court (during proceedings on the application of a tax sanction for committing a tax offense) may be recognized as mitigating liability. There are two important points to note:

the list of mitigating circumstances is open. In other words, the circumstances referred to in paragraphs. 1 and 2, paragraph 1 of Art. 112 of the Tax Code of the Russian Federation, must be taken into account in any case. Other circumstances (taking into account the specific situation) can be assessed as mitigating liability at the discretion of the tax authority or court;

the size of the tax sanction can be significantly reduced, since only the minimum limit for reducing the tax sanction is set. Based on the results of an assessment of the relevant circumstances (for example, the nature of the offense committed, the number of mitigating circumstances, the identity of the taxpayer, his financial situation), the size of the sanction can be reduced by more than two times (Article 114 of the Tax Code of the Russian Federation).

Characteristics of the rules of paragraph 2 of the commented art. 112 of the Tax Code of the Russian Federation shows that:

a) there is only one aggravating circumstance - it is the commission of a tax offense by a person who has previously been held liable for a similar offense;

b) if a person has previously committed a tax offense, but was not brought to tax liability (regardless of the reason), then there is no reason to speak of an aggravating circumstance.

The rules of paragraph 3 of the commented article. 112 of the Tax Code of the Russian Federation allow you to determine what is considered "bringing to tax liability for a previously committed tax offense." It has been established that a person is considered to be subject to a tax sanction when 12 months have not passed since the entry into force of a court decision or a tax authority. If prior to the commission of the offense the taxpayer was not held accountable for a similar illegal act, the tax authority has no legal grounds to increase the amount of the tax sanction (clause 4 of article 114 of the Tax Code of the Russian Federation) (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 25, 2010 N 1400 /ten).

The rules of paragraph 4 of the commented article imperatively establish that:

referred to in Art. 112 of the Tax Code of the Russian Federation, the circumstances are established either by the court or by the tax authority considering the case, and are taken into account when applying tax sanctions.

As the analysis of judicial practice shows, the establishment of mitigating circumstances in the application of liability is the responsibility of both the tax authority and the court. Accordingly, the right to reduce the amount of the fine in the presence of mitigating circumstances is granted both to the tax authority considering the case and to the court. Moreover, the court has the right to reduce the size of the tax sanction, even if the sanction has already been reduced by the tax authority.

Here it is also necessary to take into account the following legal positions of the Constitutional Court of the Russian Federation:

Resolution of May 12, 1998 N 14-P: penalties should be applied taking into account the nature of the offense committed, the amount of harm caused, the degree of guilt of the offender, his property status and other significant circumstances of the act;

Resolutions of October 28, 1999 N 14-P, of July 14, 2003 N 12-P: when considering disputes, all the actual circumstances of the case, and not just the formal conditions for the application of the legal norm, must be examined;

Definition of December 16, 2008 N 1069-О-О: the legislator, providing for liability for the commission of offenses, must proceed from the constitutional principles of justice, legal equality, proportionality, proportionality of the established liability to constitutionally significant goals (