CC BY
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UDC 330
Gadzhiev M. M. 1st year postgraduate student economic faculty DSU Rizakhanova Z. Z. PhD of Philogy associate professor of foreign languages department
economic faculty, DSU Russia, Makhachkala
ADMINISTRATIVE AND TAX LIABILITY FOR VIOLATION OF THE
TAX LEGISLATION
Abstract: The article discusses two positions in terms of the science and practice of the legal nature of the tax liability. Furthermore, the explanation of the point of view regarding the tax liability as a kind of administrative responsibility is given.
Keywords: administrative liability, tax liability, tax offenses, legal liability, violation of the tax legislation, administrative offenses, taxpayer.
The question about the nature of responsibility for tax offenses at the present stage is among the discussion. In the legal literature took shape several points of view on this issue. Some authors believe that tax liability for tax offenses is an independent type of legal responsibility. Others adheres to point of view that the tax liability has no autonomy, is an expression of administrative responsibility. Description of the problem retains its debatable and currently in the latest scientific developments continue to set out the opposite opinion about the nature of liability for offences stipulated by the Tax ^de of the Russian Federation.
Today we can speak about the presence of a significant number of scientific papers on various issues relating to the research topic. The basis of this research is based on the results of scientific works of Russian experts in the field of administrative law, such as the Arsenyev N. V., Arkhipenko, T. V., Ignatyev S. V., Lapina M. A., Fatianov A. A. and Khmara, A. M.
The main objective is to consider the legal nature of the tax and administrative responsibility and their differences. The methodological basis of the study is a
system approach, allowing to study the object and subject of research. Also used general scientific methods (the method of analysis, method of induction, method of deduction, method of the study of causal relationships) to achieve the goals and solve the tasks.
The definition of the notion of a tax offence is established by the article number 106 of the Tax Code of the Russian Federation. According to it a tax offence shall be understood to be "a wrongfully committed unlawful (in violation of tax and levy legislation) act (action or inaction) of a taxpayer, a tax agent or other persons for which liability" [2]. Thus, the legislator has not defined to what particular type of liability - tax or administrative - will a person, who committed a tax offense, be held for.
Responsibility for administrative offenses in the spheres of taxes and levies established by Code of Administrative Offences of the Russian Federation in articles 15.3 - 15.9, 15.11 [1]. Such administrative offenses are violation of the procedure for registration with a tax authority, violation of the deadline for the submission of information on the opening and closing of accounts at a bank or other credit organization, violation of time limits of submission of tax declaration, failure (not submission) the information required for tax control, violation of the procedure for opening an account to the taxpayer, failure to comply with the time limit for the execution of an order for the remittance of tax (a levy), failure by a bank to comply with a tax authority's order to suspend operationsT on accounts of a taxpayer, a levy payer or a tax agent, violation of the rules of accounting and submission of accounting reports. The subjects of administrative liability are officials. At the same time according to the articles of Chapter 16 and 18 of the Tax Code of the Russian Federation, for committing the tax offence also follows a tax liability [2]. The subjects of this responsibility are legal entity as well as individuals.
Proceeding from all above-mentioned, it should be noted that the liability for violation of the legislation concerning taxes and levies is regulated by both the Code Of Administrative Offences and the Tax Code of the Russian Federation, moreover, some of the articles in both codes are almost identical. The only difference is that the codes establish different sizes of imposed fines and describes different types of people to call to accountability. As a result, there is a problem of distinction between tax and administrative liability.
There are two points of view about the issue. Some authors believe that the tax liability is not an independent type of legal liability, but it is the category of administrative responsibility, for this reason, some proposes to transfer those statements, which are related to tax offenses, from the Tax Code to the Code of Administrative Offences of the Russian Federation. Others consider tax liability as an independent type of legal responsibility and refer it to administrative liability only as related legal institutions.
Firstly, let's examine in details the first position of the authors. According to the deputy head of the legal department of the Interdistrict Inspectorate of the Federal Tax Service of Russia № 1 of the Bryansk region Arsenyev N.V., tax liability is a type of administrative responsibility for violations in the spheres of
taxes and levies. However, the author believes that "even in case of uniting the Code of Administrative Offences and Tax Code into one act or other single legal law will not provide a proper operation of rules concerning responsibility due to several reasons such as material, and procedural nature"[3]. Arsenyev N.V. also notes the lack of conceptual differences between production of tax offenses cases and production of administrative violations in the spheres of taxes and levies.
Khmara A.M. believes that "all public liability in sphere of public administration, which is provided by certain federal legislation in addition to the Code of Administrative Offences of the Russian Federation, also should be considered as administrative liability" [8]. The author adheres to this point of view, based on the statement of article 1.1 of the Code of Administrative Offences of the Russian Federation, which proclaims that the Code is the only federal legislation with the power of governing the administrative liability at the federal level.
From the point of view of Lapina M.A. and Karpukhina D.V. legal nature of tax offenses is surely an administrative type of liability. However, the authors believe that the above-mentioned problem can be solved by excluding duplication of the laws which are describing the violation in articles 15.6 of to the Code of Administrative Offences and Article 126 of the Tax Code, article 15.5 of to the Code of Administrative Offences and Article 119, 119.1, 119.2 of the Tax Code of the Russian Federation. Furthermore, appropriate changes in the articles 15.5, 15.6 of to the Code of Administrative Offences, to the above compounds of the Tax Code should be made [6].
Fatyanov A.A. has the same position regarding of the legal nature of tax offenses like MA Lapina and DV Karpukhina, although he sees the solution to the situation in the application of unifed approaches to the formulation of the substantive and procedural laws [7].
The assistant judge of the Arbitration Court of the Chita region T. Archipenko adheres to the second approach, thus he claims that the tax liability is distinct from the administrative one by its procedural form. "The discrepancy between tax and administrative liability is indicated by the paragraph 4 of article 108 of the Tax Code of the Russian Federation, from which it follows that the fact that an organization has been called to account for the commission of a tax offence shall not exempt it from administrative, criminal or other liability envisaged by the laws of the Russian Federation where the appropriate grounds exist" [4].
Ignatiev S.V. and Blindyuk I.V. consider that the tax liability has specific characteristics, thus it can be regarded as an independent type of legal liability. Its uniqueness is that for tax violations, which listed in articles 133 and 135 of the Tax Code of the Russian Federation, the sanction is applied in the form of charging fines, which is impossible for bringing to administrative responsibility. Also, an analysis of article 10 of the Tax Code of the Russian Federation indicates that the Code provides different order of holding liability for the offenses which are reckoned by the Tax Code and the Code of Administrative Offences of the Russian Federation [5].
Regarding two approaches of the topic, the authors are more inclined to the first approach, leaning on the fact that the legal nature of tax offenses is administrative one, and agreeing with the opinion of Lapin M. A., Karpukhina D.V. The authors believe that their ways of solving the issue are correct and most effective.
In addition, the authors also share the opinion with Arsenyev N.V., which claims that there is no difference between the production of cases of tax offenses and administrative violations in the field of taxes and levies. Both mentioned production have common administrative and procedural nature, determined by public legal nature of liability for tax and administrative offenses, power of regulated relations, common objective laws of functioning of subjects of administrative jurisdiction. Hence, the authors of this approach do not share the opinion of Archipenko T.V. and Makarov A.V., who have the opposite point of view. In our opinion, to solve this problem it is sensible to extend the range of subjects of offenses of in the tax area, established in the Code of Administrative Offences of the Russian Federation, and eliminate duplicate statements of the offense in the Tax Code of the Russian Federation.
References:
1. Code on Administrative Offences of the Russian Federation from December 20, 2001, Konsultant Plus [Electronic resource], http://base.consultant.ru.
2. Tax Code of the Russian Federation (Part 1). Konsultant Plus [Electronic resource], http:// base.consultant.ru.
3. Aresenyeva N.V. Administrative Offences in the Sphere of Taxes and Levies: Challenges of Calculation of the Period of Limitation, 2014, № 3 PP.55 - 64.
4. Arkhienko T.V. The ratio of tax and administrative responsibility / Arkhipenko T.V., Makarov A.V. // Financial Law - 2013, № 5 PP. 56 - 58.
5. Ignatyev S.V. Administrative and Tax responsibility for violation of the tax legislation / Ignatyev S.V., Blindyuk I.V.// The bulletin of the St.-Petersburg University of the Ministry of Internal Affairs of Russia - 2014, V. 53 № 1 PP 62 -64.
6. Lapina M.A. Administrative Delict relations in the tax sphere: problems and practical proposals for the solving / Lapina M.A., Karpukhin D.V. // Financial Law, 2015, № 9 PP. 22 - 26.
7. Fatyanov A.A. On the problem of administrative responsibility relations in the sphere of taxes and fees, and tax liability // Administrative jurisdiction. Materials from the All-Russian scientific and practical conference, 2013.
8. Khmara A. M. On some controversial issues of the contemporary administrative delictual legislation // Administrative Law and Process, 2014. № 3. PP. 79 - 81.
