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Section 1. Administrative law
DOI: http://dx.doi.org/10.20534/EJLPS-16-4-3-6
Ponomarev Oleg Vladimirovichj Far eastern federal university, Senior lecturer of department of administrative and constitutional law E-mail: o. v.ponomarev@mail.ru Sitchikhina Valeriya Yevgenyevna, Far eastern federal university, Student, specialty - economy, profile — tax and taxation
E- mail: v-sitchikhina@mail.ru Magay Anjela Igorevna, Far eastern federal university, Student, specialty -economy, profile — tax and taxation
E-mail: bublik64526452@bk.ru
Problems of administrative liability for contravention of tax law
Abstract: In this article the authors consider the basic problems of administrative liability for violation of tax legislation of the Russian Federation, with the theoretical and practical importance. The important issue of the independence of the tax liability are considered the various positions of science and practice, as well as the authors propose solutions to these problems.
Keywords: taxes, tax, administrative liability, tax law, tax control.
Taxes are the main source of the government Administrative liability in the field of taxation is revenues. Against the background of strengthening the responsibility of organizations, their officials the financial and economic potential of the country and individual entrepreneurs for the tax offenses as the most important goal is to replenish the budgets prescribed by the Code ofAdministrative Offenses. of all levels through the timely collection of taxes The parties liable are officials of the organization required by applicable law. should they commit administrative offenses in con-
The Tax Code of the Russian Federation (herein- nection with the default on or improper execution after referred to as the "TC RF") constants the types of their duties. Thereat, an official of an organiza-of taxes, collection procedure, basic concepts used in tion means a person, which permanently, temporar-the area of taxes and duties, rights and obligations of ily or in accordance with special powers performs taxpayers, regulatory and law enforcement bodies organizational and executive or administrative and exercising the powers in the field of taxation as pre- managerial functions: managers and other employ-scribed by law, as well as establishes the misdeeds, ees (CAO RF, Art. 2.4). As regards the organizations, which shall be referred to the tax offences, and pre- the organizations themselves, as indicated above, scribes liability for the commission of those offences. may be made accountable for the taxes-and-duties In addition to the tax legislation, the responsibility for offences according to TC RF and their officials — the taxes-and-duties offences is set forth by the Code according to CAO RF.
ofAdministrative Offenses ofthe Russian Federation Among scientists there is no common under-(hereinafter referred to as the "CAO RF"). standing of issues relating to the differentiation of
administrative liability and liability for tax offenses. There are various points of view expressed. Some scientists consider a tax liability as a particular type of a state compulsion in the field of taxation and as one of the types of responsibility in the legal liability system applicable to the taxes-and-duties payers, withholding agents and their officials for violations of the taxes-and-duties legislation.
For example, V. A. Kinsburskaya highlights a special separate legal nature in the tax liability, at the same time she points out that the tax liability inherently is a kind of the administrative responsibility [3, 2-3]. Cand. Sc. (Law) A. A. Gogin considers the tax liability as an independent kind of responsibility, which shouldn't be identified as the administrative one.
Other scientists specializing in the administrative law, on the contrary, believe that tax offenses may be of two types only: criminal and administrative offenses.
A. B. Agapov and Yu. M. Kozlov believe that the regulation ofliability for taxes-and-duties offenses by any code, other than CAO RF, violates the integrity of the institution of administrative liability [2, 6].
Ye. V. Ovcharova points out that the so-termed "tax liability" for violations of the tax legislation envisaged by NC RF essentially is the administrative liability. This is confirmed by the legal determination of the Constitutional Court of the Russian Federation dated 17.12.96 No. 20-P "In the Case of Verification of Constitutionality of Paragraphs 2 and 3 of Part 1 ofArticle 11 of Law of the Russian Federation dated June 24, 1993 "On Federal Bodies of Tax Police". The Decree determines the punishment for the tax offenses as administrative and criminal one [5, 1].
According to S. G. Pepeliaev, liabilities envisaged by Chapters 16 and 18 of TC RF are the administrative liabilities applicable to special actors — taxpayers, banks, etc. Correct definition of appurtenance of tax sanctions will ensure the application legality in the process of enforcement of rules governing this type of coercion [1, 1].
So far, the framework of legal provisions of the current legislation is such that the liability for the tax offenses applies as envisaged by TC RF and liability for infringement of taxes-and-duties law applies in accordance with CAO RF. Confusion of these types of liability often results in wrong conclusions. Such complexity of frameworks of the current legislation causes
significant difficulties in administration of law both by regulatory and law enforcement bodies. Moreover, this legislation is constantly being modified with the changes affecting the basic conceptual approaches to the procedure of holding liable for tax offenses and crimes, as well as to the procedure for imposing the tax sanctions. Officials of tax and law enforcement bodies are faced with the challenge ofdeciding when, to whom, through what procedure and what legislation shall be applied. This situation is becoming more and more complicated taking into account that most of officials of tax authorities while having an economic expertise do not have a legal background, although not all the lawyers are able to gain insight of the nuances of the tax law. It results in numerous taxpayers' complaints of violations of their rights in connection with illegal decisions made by the tax authorities.
Administrative liability for tax-and-duties offenses is an important legal remedy to regulate economic relations. At present, however, it is clear that the administrative liability, while being an essential tool for the response to administrative offenses, does not complete inherent tasks in full as a consequence of some issues.
The major issue, as it has already been noted above, consists in the presence of significant gaps in the definition of administrative liability in TC RF.
Primary objective of the law-maker, when adopting the Code of Administrative Offenses of the Russian Federation, was to concentrate all components of administrative offenses in a single piece of legislation. In fact this task was not completed in full. This is caused by the fact that one part of the rules governing the administrative liability was transferred to CAO RF from the Tax Code of the Russian Federation, but the other part still remains in TC RF [2, 1].
In accordance with CAO RF, Article 1, Part 1, the legislation on administrative offenses consists of CAO RF and laws adopted thereunder by constituent entities of the Federation. At the same time, Chapters 14-16 and 18 of TC RF concerning the administrative liability of the parties of tax relations have not been repealed. Taxpayers and withholding agents shall be brought to administrative responsibility for contravention of tax law on the grounds and according to the procedure stipulated by TC RF, rather than CAO RF. CAO RF rules concerning the
administrative responsibility for the violation of the taxes-and-duties legislation shall apply only to the officials of the organizations, which are the parties of the tax relationships, as well as for the violation of the taxes-and-duties legislation during the movement of goods and vehicles through the customs territory of the Russian Federation [4, 222-264].
As opposed to CAO RF, the procedure for bringing to administrative responsibility for contravention of tax law envisaged by TC RF has significant gaps and shortcomings. As a result of this, there happen situations, where the interpretation of the TC RF rules concerning the administrative liability by the arbitration courts contradicts the Constitution of the Russian Federation and legislation; legal entities are brought to administrative responsibility in the absence of prescribed procedure for the proceedings in the cases of the administrative offenses in the legislation; when there is no person's fault on the commission of the administrative offense, when there are no or insufficient evidences of the commission of the administrative offense by the person. All of this shall be considered as a violation of the provisions of the Constitution of the Russian Federation and principles of law.
Another problem consists in the fact that bringing payers oftaxes and duties and withholding agents to responsibility for tax offenses revealed in the course of in-house tax audit contradicts the essence of this audit.
In-house tax audit consists in the tax authority's control over the correct completion of declarations in order to reveal errors and informing the taxpayers and withholding agents of the rules of tax calculation and payment, declaration completion and necessity to correct the mistakes made by them both when calculating and paying taxes while completing declarations. Such a conclusion should be made based on the content of TC RF Article 88, according to which following the results of in-house tax audit the authority shall send to the taxpayer a request to pay the amount of additionally charged tax and penalty. By implication of law, tax sanctions based on the results of in-house tax audit shall not apply to the taxes-and-duties payers and withholding agents.
In-house tax audit is the way of the realization of the taxpayers' right to receive the information on the calculation and payment of taxes and duties, comple-
tion of the tax declarations from the tax authorities where registered. However, the courts of arbitration exact from the taxpayers the penalties for tax offenses following the results of in-house tax audits.
According to A. B. Panov, another important problem claiming attention is the issue of the personification of liability for tax offenses. In the meantime, the personification of liability for tax offenses committed in the course of the organization's activities due to default on or improper fulfillment of job duties by an official is a very important factor, especially given the significant negative effects of bringing the person to administrative responsibility. The general requirements for bringing officials to administrative responsibility are laid down in Articles 2.4 (including notes) and 2.6 of CAO RF [6, 27-47].
Another problem of administrative liability for contravention of tax law is that legal precedents allow bringing people to the liability for tax offenses, despite the violation of the procedure for holding liable by the tax authorities. Emerging of such a practice started once Plenum of the Supreme Arbitration Court of the Russian Federation adopted Resolution No. 5 dated 28.02.2001, which instructed the arbitration courts to prosecute in the absence of a procedure established by law or its non-compliance.
In addition, taxpayers may be held liable following the results of additional tax control measures, about which TC RF gives no information, except for their names.
Bringing to administrative responsibility for tax offenses through the courts in the absence of procedures for holding liable is nothing more than obtaining evidences of the offense with no statutory order of obtaining, which contradicts the Constitution. Legal precedents of arbitration courts in cases of bringing to administrative liability for tax offenses (according to TC RF terminology — bringing to "tax liability") following the results of in-house tax audits and other tax control measures use precisely such evidences: procedure for bringing to administrative liability following the results of the use of these forms of tax control is not established in TC RF.
Stipulation by law and compliance with the procedure for holding people liable is a guarantee of a thorough, full and unbiased investigation of all cir-
cumstances in the cases oftax offenses and adherence to constitutional rights of the persons held liable.
Thus, summarizing this article, the need for further improvement of the legislation should be noted. The most urgent issue is the regulation of the procedural rules governing the procedure for bringing to administrative responsibility. We suggest several solutions to address this issue.
The first solution is to develop an Administrative Procedural Code, which would regulate the public relations associated with the implementation of judicial control over the activities of the bodies empowered to bring to administrative responsibility.
The second solution involves the grouping of relevant components of tax offenses in the Tax Code of the Russian Federation under articles stipulating sanctions both for the subjects of taxation and for their officials. At the same time, we suggest relevant amendments to CAO RF, particularly, pointing out
that the issues of administrative liability for taxes-and-duties offenses shall be regulated by the provisions of TC RF, but provisions of CAO RF shall not apply.
And the third, in our opinion, better way to address this issue is to include rules of the administrative responsibility of all parties of tax relations in CAO RF with parallel abolition of Chapters 15, 16, 18 and certain provisions of Chapter 14 of TC RF concerning the so-called tax liability. The tax liability shall be considered as an administrative responsibility for the contravention of tax law and stipulated in the administrative offences legislation, as today the rules of the proceedings in the case of an administrative offense stipulated by CAO RF are based on the constitutional principles of administrative liability and rules of the proceedings in the case of an administrative offense, which are not observed in TC RF when regulating the tax control and tax prosecution procedures.
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2. Kalantarova E. I. Contemporary Issues of Legislative Regulation ofAdministrative Liability for Tax Offenses. Law Industries Analytical Portal. - 2015.
3. Kinsburskaya V. A. Tax Liability in State Taxation Compulsion System: - M., - 2010.
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5. Ovcharova Ye. V.//Administrative Liability for Tax Offenses//Nalogoved (russian - "HaAoroBeg")Journal Issue - No. 3. - M., - 2005.
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