Commentary on Article 278 of the Criminal Code. Who can be a witness

1. Failure by a taxpayer (fee payer, insurance premium payer, tax agent) to submit to the tax authorities documents and (or) other information provided for by this Code and other acts of legislation on taxes and fees, if such an act does not contain signs of tax offenses, provided for in articles - of this Code, as well as paragraphs of this article,

entails a fine of 200 rubles for each document not submitted.

1.1. Failure to submit to the tax authority the documents provided for in paragraph 5 of this Code, expressed in the refusal of the controlling person to submit the documents available to him, as well as other evasion from submitting such documents or submitting documents knowingly false information

entails a fine from the controlling person in the amount of 100,000 rubles.

1.2. Failure by the tax agent to submit income tax calculations within the prescribed period individuals, calculated and withheld by the tax agent, in tax authority at the place of registration

entails the collection of a fine from the tax agent in the amount of 1,000 rubles for each full or partial month from the day established for its submission.

2. Failure to submit information about the taxpayer (payer of insurance premiums) to the tax authority within the prescribed period, refusal of a person to submit documents in his possession, provided for by this Code, with information about the taxpayer (payer of insurance premiums) at the request of the tax authority, or submission of documents with deliberately unreliable information, if such an act does not contain signs of violations of the legislation on taxes and fees provided for in articles of this Code,

entails the collection of a fine from an organization or individual entrepreneur in the amount of ten thousand rubles, from an individual who is not an individual entrepreneur - in the amount of one thousand rubles.

3. Lost power. - Federal Law of December 30, 2001 N 196-FZ.

The provisions of Article 126 of the Tax Code of the Russian Federation are used in the following articles:

Request for documents during tax audit
4. Refusal of the person being inspected to provide the documents requested during a tax audit or failure to submit them to deadlines are recognized as a tax offense and entail liability under Article 126 of the Tax Code of the Russian Federation.
Request for documents (information) about the taxpayer, fee payer, insurance premium payer and tax agent or information about specific transactions
6. A person’s refusal to submit documents required during a tax audit or failure to submit them within the established time frame is recognized as a tax offense and entails liability under Article 126 of the Tax Code of the Russian Federation.
Wrongful failure to report information to the tax authority
1. Unlawful failure (untimely communication) by a person of information that, in accordance with the Tax Code of the Russian Federation, this person must report to the tax authority, including failure to submit (untimely submission) by a person to the tax authority the explanations provided for in paragraph 3 of Article 88 of the Tax Code of the Russian Federation in case of failure to submit within the prescribed period updated tax return, in the absence of signs of a tax offense provided for in Article 126 of the Tax Code of the Russian Federation,

1. Failure by a taxpayer (fee payer, tax agent) to submit documents and (or) other information provided for by this Code and other acts of legislation on taxes and fees to the tax authorities within the prescribed period, if such an act does not contain signs of tax offenses provided for in Articles 119, 129.4 and 129.6 of this Code, as well as paragraphs 1.1 and 1.2 of this article,
entails a fine of 200 rubles for each document not submitted.

1.1. Failure to submit to the tax authority the documents provided for in paragraph 5 of Article 25.15 of this Code, expressed in the refusal of the controlling person to submit the documents in his possession, as well as other evasion from submitting such documents or submitting documents with knowingly false information shall entail the collection of a fine from the controlling person in the amount of 100,000 rubles.

1.2. Failure by a tax agent to submit, within the prescribed period, the calculation of the amounts of personal income tax calculated and withheld by the tax agent to the tax authority at the place of registration
entails the collection of a fine from the tax agent in the amount of 1000 rubles for each full or partial month from the day established for its submission.

2. Failure to submit information about the taxpayer to the tax authority within the prescribed period, the refusal of a person to submit the documents in his possession, provided for by this Code, with information about the taxpayer at the request of the tax authority, or the submission of documents with knowingly false information, if such an act does not contain signs of violations of tax legislation and fees provided for in Articles 126.1 and 135.1 of this Code,
entails the collection of a fine from an organization or individual entrepreneur in the amount of ten thousand rubles, from an individual who is not an individual entrepreneur - in the amount of one thousand rubles.

3. The clause became invalid on July 1, 2002 - Federal Law of December 30, 2001 N 196-FZ.

Commentary on Article 126 of the Tax Code of the Russian Federation

The commented article establishes the liability of the payer for failure to provide the tax authority with information about the taxpayer (payer of the fee).

Liability under paragraph 1 of Article 126 of the Tax Code of the Russian Federation occurs only if such an act does not contain signs of tax offenses provided for in Articles 119, 129.4 and 129.6 of the Tax Code of the Russian Federation.

In order to be held accountable under paragraph 1 of Article 126 of the Tax Code of the Russian Federation for failure to submit within the prescribed period of documents required by the tax authority in accordance with Article 93 of the Tax Code of the Russian Federation, it is necessary to establish circumstances indicating that the taxpayer had such documents, or he had to draw them up by virtue of direct indication of the law or other regulatory legal acts.

This is evidenced by judicial practice (see Resolution of the Federal Antimonopoly Service of the East Siberian District dated November 19, 2008 N A33-9732/07-F02-5626/08).

Liability for the offense provided for in paragraph 1 of Article 126 of the Tax Code of the Russian Federation can only be applied if the requested documents were available to the taxpayer, and he also had a real opportunity to submit them within the specified period.

A similar position is set out in the Resolution of the Federal Antimonopoly Service of the Moscow District dated October 22, 2012 N A41-31823/10.

The Presidium of the Supreme Arbitration Court of the Russian Federation, in Resolution No. 4517/12 dated September 18, 2012, noted that when conducting a desk tax audit, sending the taxpayer a requirement to submit documents confirming the legality of the reflection in tax reporting transactions not subject to value added tax contradicts the provisions of Article 88 of the Tax Code of the Russian Federation. Consequently, bringing an organization to tax liability on the basis of paragraph 1 of Article 126 of the Tax Code of the Russian Federation on this basis is unlawful.

The Supreme Arbitration Court of the Russian Federation, in its Ruling dated November 8, 2012 N VAS-11890/12, noted that tax authorities have the right to request, and taxpayers are required to submit, documents that are directly related to the calculation and payment of taxes. At the same time, a similar restriction applies to persons who have documents relating to the activities of the taxpayer being audited.

The documents requested by the tax authority from the taxpayer are the primary statistical data necessary for the generation of official statistical information. The obligation to provide the specified data to subjects of official statistical accounting is assigned to respondents in Article 8 of the Federal Law of November 29, 2007 N 282-FZ “On official statistical accounting and the system of state statistics in Russian Federation".

The specified documents are not register data accounting and (or) other documentary confirmation of data on objects subject to taxation or related to taxation, on the basis of which, by virtue of paragraph 1 of Article 54 of the Tax Code of the Russian Federation, taxpayers-organizations calculate tax base based on the results of each tax period, therefore they cannot indicate any violations on the part of the taxpayer.

Based on the literal interpretation of the norm of Article 126 of the Tax Code of the Russian Federation, the tax authority in the requirement to submit documents is obliged to indicate the exact name and number of requested documents, since the amount of the fine is calculated from a certain, specific number of unsubmitted (submitted untimely) documents.

These conclusions are confirmed judicial practice(see Resolutions of the FAS Volga District dated June 23, 2011 N A06-6839/2010, FAS North Caucasus District dated January 21, 2011 N A32-17947/2010).

Liability under Article 126 of the Tax Code of the Russian Federation is subject to application for failure to provide each requested document.

Consequently, the taxpayer cannot be held accountable if the fact of the presence and the number of documents not submitted by him is not reliably determined by the tax authority. Establishing the amount of the fine based on the taxpayer’s presumable availability of at least one of the requested types of documents is unacceptable.

In the Resolution Arbitration Court Volga District dated March 17, 2015 N F06-20963/2013 in case N A55-4441/2014 it was noted that the tax authority’s demand did not contain an exhaustive list of the required documents indicating their details and exact quantity. When establishing the number of unsubmitted documents and, accordingly, the amount of the fine, the inspectorate proceeded from the presumable availability of the requested types of documents from the taxpayer, which is unacceptable. A taxpayer cannot be held accountable if the number of documents he failed to submit is not reliably determined by the tax authority.

In the Resolution of the Arbitration Court Ural district dated May 27, 2015 N F09-2749/15 in case N A60-31050/2014, the court found it lawful to hold the taxpayer liable under Article 126 of the Tax Code of the Russian Federation for failure to provide documents at the request of the tax authority, indicating that the requested documents were specified by gender, periods , the names of the documents were indicated (general ledgers, reports on the movement of inventories, cards of accounting account 62 for counterparties, personal accounts of employees reflecting the amounts of accrued remuneration and the amounts of deductions made, etc.). The taxpayer did not provide evidence that the demand was not fulfilled due to the uncertainty of the requested documents.

The Tax Code of the Russian Federation has not established whether it is possible to be held accountable under paragraph 1 of Article 126 of the Tax Code of the Russian Federation if there is no evidence of the actual availability of the requested documents.

On this issue, there is a Resolution of the Federal Antimonopoly Service of the North-Western District dated November 21, 2013 in case No. A56-76288/2012, in which the court indicated that when brought to justice for failure to provide documents, including a traffic log waybills, it was necessary to establish that the taxpayer kept such a journal, but did not submit it to the tax authority.

Responsibility under paragraph 2 of Article 126 of the Tax Code of the Russian Federation occurs only if such an act does not contain signs of tax offenses provided for in Articles 126.1 and 135.1 of the Tax Code of the Russian Federation.

Based on the provisions of Article 93.1 of the Tax Code of the Russian Federation executive The tax authority conducting the tax audit has the right to request from the counterparty or other persons who have documents (information) relating to the activities of the taxpayer being inspected (fee payer, tax agent) these documents (information). According to paragraph 6 of this article, a person’s refusal to submit documents required during a tax audit or failure to submit them within the established time frame is recognized as a tax offense and entails liability under Art. 126 of the Tax Code of the Russian Federation.

As follows from the disposition of paragraph 2 of Article 126 of the Tax Code of the Russian Federation, liability is established for failure to submit within the prescribed period the documents provided for by the Tax Code of the Russian Federation at the request of the tax authority. Submission of documents compiled in violation of the form approved in in the prescribed manner and, therefore, is not advisory for the taxpayer, may entail liability under paragraph 2 of Article 126 of the Tax Code of the Russian Federation, since there is a possibility that the tax authority will consider such a document not submitted.

In the Resolution of the Federal Antimonopoly Service of the East Siberian District dated May 11, 2006 N A19-37884/05-32-F02-2150/06-S1, the court stated that responsibility for submitting a tax return in an unspecified form is not provided for by tax legislation.

Also in the Resolution of the Tenth Arbitration court of appeal dated 03/28/2006, 04/04/2006 in case No. A41-K2-21907/05 it was established that the submission to the tax authority of calculations on old forms within the prescribed period does not indicate the commission of a tax offense, liability for which is provided for in Article 126 of the Tax Code of the Russian Federation.

The Resolution of the Federal Antimonopoly Service of the Central District dated August 17, 2004 N A09-548/04-10 concluded that tax legislation does not provide for liability for the submission of documents with deficiencies in form.

Since 01/01/2015, the Federal Law of November 24, 2014 N 376-FZ, paragraph 1.1 of Article 126 of the Tax Code of the Russian Federation, has been in effect, establishing tax liability for the refusal of a controlling person to submit the documents in his possession, as well as other evasion from the submission of such documents or the submission of documents that are obviously false. information.

Since 01/01/2016, the Federal Law of 05/02/2015 N 113-FZ, paragraph 1.2 of Article 126 of the Tax Code of the Russian Federation, has been in effect, establishing tax liability for failure by a tax agent to submit within the prescribed period the calculation of the amounts of personal income tax calculated and withheld by the tax agent to the tax authority. at the place of registration.

Consultations and comments from lawyers on Article 126 of the Tax Code of the Russian Federation

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Article 126. Failure to provide the tax authority with information necessary to carry out tax control

1. Failure by a taxpayer (fee payer, insurance premium payer, tax agent) to submit to the tax authorities documents and (or) other information provided for by this Code and other acts of legislation on taxes and fees, if such an act does not contain signs of tax offenses, provided for in Articles 119, 129.4, 129.6, 129.9 - 129.11 of this Code, as well as paragraphs 1.1 and 1.2 of this article,

entails a fine of 200 rubles for each document not submitted.

1.1. Failure to submit to the tax authority the documents provided for in paragraph 5 of Article 25.15 of this Code, expressed in the refusal of the controlling person to submit the documents in his possession, as well as other evasion from the submission of such documents or the submission of documents with deliberately false information

Incurs a fine from the controlling person in the amount of 100,000 rubles.

entails the collection of a fine from the tax agent in the amount of 1,000 rubles for each full or partial month from the day established for its submission.

ST 126 Tax Code of the Russian Federation.

1. Failure by a taxpayer (fee payer, insurance premium payer, tax agent) to submit to the tax authorities documents and (or) other information provided for by this Code and other acts of legislation on taxes and fees, if such an act does not contain signs of tax offenses, provided for in Articles 119, 129.4, 129.6, 129.9 - 129.11 of this Code, as well as paragraphs 1.1 and 1.2 of this article,

entails a fine of 200 rubles for each document not submitted.

1.1. Failure to submit to the tax authority the documents provided for in paragraph 5 of Article 25.15 of this Code, expressed in the refusal of the controlling person to submit the documents in his possession, as well as other evasion from the submission of such documents or the submission of documents with deliberately false information

entails a fine from the controlling person in the amount of 100,000 rubles.

entails the collection of a fine from the tax agent in the amount of 1000 rubles for each full or partial month from the day established for its submission.

Commentary to Art. 126 Tax Code

The commented article is contained in Chapter 16 “Types of tax offenses and responsibility for their commission” Tax Code of the Russian Federation and indicates the sanctions that will be applied to the offender for failure to provide the tax authority with the information necessary for the implementation of tax control. From point of view administrative responsibility This offense is enshrined in Art. 15.6 Code of Administrative Offenses of the Russian Federation. IN in this case in the specifics of the article we are considering, we are talking about tax liability for the same violation of the legislation on taxes and fees.

This composition can be qualified as general view as an unlawful act committed by a taxpayer, tax agent or other persons for which the Tax Code of the Russian Federation establishes liability.

This offense is defined as formal, since socially dangerous consequences within its framework are implied, but establishing their specific content is not mandatory for bringing to responsibility.

The amount of the tax penalty is set in absolute amount.

The object of the offenses for which liability is provided for in this article is fiscal relations ( public relations in the field of taxation and organization of tax control) to which damage is caused. This composition can be qualified as some kind of obstruction of the legitimate activities of tax authorities.

The objective side of this offense, which we define as formal, is characterized by the fact of committing an illegal act, namely, in paragraph 1 of the commented article, such an act is the failure to submit documents and (or) other information provided for by this Code and other acts of tax legislation to the tax authorities within the prescribed period. and fees. Further, part one distinguishes the composition of the offense contained in it from other articles of the Tax Code of the Russian Federation, namely from Art. 119, characterizing the failure to submit a tax return (calculation of the financial result of an investment partnership), from Art. 129.4, regulating the unlawful failure to submit a notification of controlled transactions and the presentation of false information in a notification of controlled transactions, as well as Art. 129.6, which identifies unlawful failure to provide notifications and the presentation of false information in notifications about controlled foreign companies, about participation in foreign companies. Moreover, the first point delineates objective side from paragraph 1.1 of this article, which, in turn, is characterized as failure to submit to the tax authority the documents provided for in paragraph 5 of Art. 25.15 (financial statements of a controlled foreign company or other documents in the absence thereof, as well as the auditor’s report on the above financial statements, if the personal law of that controlled foreign company establishes mandatory audit of such financial statements) of the Tax Code of the Russian Federation, expressed in the refusal of the controlling person to submit the documents available to him, as well as other evasion from the submission of such documents or the submission of documents with deliberately unreliable information. This inclusion of such a composition in clause 1.1 seems to be very important, since if for clause 1 liability is established in the amount of 200 rubles, then for the commission of an offense imposed in clause 1.1, the amount of the penalty is an amount exceeding the fine for a violation under clause 1 of this article 500 times, i.e. 100,000 rubles.

Thus, the question arises as to what specific documents and (or) information are not provided that may serve as grounds for prosecution under this article. The letter of the Ministry of Finance of the Russian Federation dated November 21, 2012 N AS-4-2/19575@ “On communicating information to the tax authorities” lists a list of documents for failure to submit which may result in prosecution in accordance with paragraph 1 of Art. 126 of the Tax Code of the Russian Federation. Such documents are: 1) for organizations: balance sheet, profit and loss statement, audit report or conclusion of the audit union of agricultural cooperatives (if the organization, in accordance with federal laws, are subject to mandatory audit or mandatory revision), explanatory note; 2) for public organizations(associations) and their structural divisions, not implementing entrepreneurial activity and not having, in addition to disposed property, turnover for the sale of goods (works, services): balance sheet, profit and loss statement, report on intended use funds received; 3) for state (municipal) institutions: documents included in financial statements such institutions in accordance with Order of the Ministry of Finance of Russia dated March 25, 2011 N 33n “On approval of the Instructions on the procedure for drawing up and submitting annual and quarterly financial statements of state (municipal) budgetary and autonomous institutions.” This letter also contains information that the tax authorities, when determining the amount of the fine under paragraph 1 of Art. 126 of the Tax Code of the Russian Federation should be guided by full list documents included in the financial statements of a particular organization, and determine the amount of a fine in the amount of 200 rubles for each unsubmitted (lately submitted) document that should be included in the financial statements.

The objective side of clause 2 is characterized by the failure to submit information about the taxpayer to the tax authority within the prescribed period, the refusal of a person to submit the documents in his possession, provided for by this Code, with information about the taxpayer at the request of the tax authority, or the submission of documents with deliberately false information, moreover, such an act is not must contain signs of an offense regulated by Art. 135.1 of the Tax Code of the Russian Federation (that is, the bank’s failure to submit certificates (statements) on transactions and accounts (investment partnership account) to the tax authority). Sanctions for this offense are set in different amounts: for individuals who are not individual entrepreneurs - in the amount of 1000 rubles, and for organizations and individual entrepreneurs - in an amount exceeding the fine payable by an individual by 10 times, that is, 10,000 rubles .

The subject of this offense is, according to paragraph 1, the taxpayer (the person who is entrusted with the obligation to pay taxes and (or) fees), who can be the payer of the fee directly - an individual, including an individual entrepreneur (for individuals, the age of prosecution is upon reaching 16 years of age) or an organization - and a tax agent (a person entrusted with the responsibility for calculating, withholding from the taxpayer and transferring taxes to budget system RF).

According to clause 1.1 of the commented article, a special subject is identified - a controlling person. According to paragraph 3 of Art. 25.13 this subject defined as physical or entity, whose share of participation in the organization is more than 25 percent, as well as an individual or legal entity whose share of participation in the organization (for individuals - together with spouses and minor children) is more than 10 percent, if the share of participation of all persons recognized tax residents RF, in this organization (for individuals - including spouses and minor children) is more than 50 percent. Clause 5 Art. 25.13 also establishes that a person who does not meet the above criteria, but exercises control over such an organization in his own interests or in the interests of his spouse and minor children, can be recognized as a controlling person of an organization.

Subjects under Part 2 of the commented article are organizations or individual entrepreneurs, as well as individuals who are not individual entrepreneurs.

The subjective side of this offense can be expressed both in the form of intent and in the form of negligence on all counts.

Article 93 refers to Article 126, which regulates the request for documents during a tax audit in paragraph 4, that is, the refusal of the audited person to submit the documents requested during a tax audit or failure to submit them within the established time limits entails liability under Art. 126 of the Tax Code of the Russian Federation. Regarding Art. 93.1, which regulates the request for documents (information) about the taxpayer, fee payer and tax agent or information about specific transactions, it refers both to Art. 126, and to its related article. 129.1 (commented below). So, in paragraph 6 of Art. 93.1 establishes that a person’s refusal to submit documents required during a tax audit or failure to submit them within the established time frame is recognized as a tax offense and entails liability under Art. 126 of the Tax Code of the Russian Federation, while liability under Art. 129.1 entails unlawful non-reporting (untimely reporting) of the requested information. A clear delineation of responsibility under two articles in the event of failure to provide documents and information by the counterparty of the taxpayer being inspected in accordance with Art. 93.1 of the Tax Code of the Russian Federation was introduced on January 1, 2014. We believe that the legislator made changes to the article, delimiting responsibility under Art. 126 and art. 129.1 due to the contradictions that have arisen in judicial practice about this question. The fact is that, according to the previously valid wording of paragraph 6 of Art. 93.1 of the Tax Code of the Russian Federation, failure to submit documents requested from the counterparty of the taxpayer being inspected or from other persons possessing documents or information about the activities of such a taxpayer entailed liability under Art. 129.1 of the Tax Code of the Russian Federation, however, the tax authorities, despite the direct indication of Art. 129.1 in the text of the Code, for failure to provide documents upon request made on the basis of Art. 93.1 of the Tax Code of the Russian Federation, brought the perpetrators to justice under paragraph 2 of Art. 126 of the Tax Code of the Russian Federation. Regarding the above-mentioned contradictions in practice, the FAS of the East Siberian District, in Resolution dated March 17, 2009 N A33-9821/08-F02-942/09, pointed out the illegality of levying a fine under clause 2 of Art. 126 of the Tax Code of the Russian Federation in case of failure to provide documents requested on the basis of Art. 93.1 of the Tax Code of the Russian Federation, since Art. 93.1 of the Tax Code of the Russian Federation directly provides for prosecution under Art. 129.1 Tax Code of the Russian Federation. Other courts adhered to a similar position (see Resolutions of the FAS Far Eastern District dated 06/03/2013 N F03-6629/2012, FAS North Caucasus District dated 02/06/2013 N A15-1092/2012). However, the Federal Antimonopoly Service of the Moscow District, in Resolution No. KA-A40/7621-11 dated July 22, 2011, recognized the legality of collecting a fine under clause 2 of Art. 126 of the Tax Code of the Russian Federation.

It can be assumed that the information discussed in Art. 126 of the Tax Code of the Russian Federation are of a documentary nature, while under the information mentioned in Art. 129.1, the communication of information or information can also be understood orally. However, taking into account the application of the commented article to tax agents, it can be said that clause 2 of Art. 230 indicates that tax agents provide information in electronic form via telecommunication channels or on electronic media, and if the number of individuals who received income in the tax period is up to 10 people, tax agents can provide information on paper media. Also, the letter of the Ministry of the Russian Federation for Taxes and Duties dated May 11, 2001 N BG-6-18/377@ states that when applying liability to tax agents under clause 1 of Art. 126 of the Tax Code of the Russian Federation, it is necessary to take into account that each document (certificate) relating to a specific taxpayer is a separate document, regardless of the method of its submission to the tax authority: on paper or magnetic media.