The effectiveness of tax control in the conditions of humanization of the criminal procedure legislation of the Russian Federation

Karamov Ilgiz Floritovich ORCID: 0009-0006-4099-6588 Assistant, Department of Financial and Administrative Law, Ufa University of Science and Technology 450005, Russia, Republic of Bashkortostan, Ufa, ul. Dostoevsky, 131, office 312 Absolvitur2017@gmail.com

Assessing the changes that have taken place in the criminal procedure legislation in the economic sphere, from the point of view of ensuring conditions for the safe conduct of business in Russia, it is impossible not to state their effectiveness.

Vladimir Putin's statement at a meeting with graduates of the personnel reserve development program of the Higher School of Public Administration of the RANEPA seems fair: "You propose <...> solutions to improve our tax system, each component of which should be economically justified and socially fair..." ^[11]

The study of the effectiveness of tax control in the context of the humanization of the criminal procedure legislation of the Russian Federation is confirmed. So, on June 7, 2023, the Federation Council of the Federal Assembly of the Russian Federation approved the Federal Law "On Amendments to the Criminal Procedure Code of the Russian Federation", developed by the Ministry of Justice of the Russian Federation. The federal law is aimed at excluding unjustified criminal legal impact on entrepreneurs ^[10]. Moreover, the importance of the study of aspects of tax control is emphasized by the growing responsibility of the domestic business sector, as evidenced by the results of a statistical analysis of the audit and consulting network FinExpertiza with reference to data from the Federal Tax Service (FTS). For the same period in 2021, the amount of additional charges was 2.2 times less. According to experts, the Federal Tax Service has increased on-site inspections, and the average amount of payments has also increased ^[12].

Thus, the degree of study of this issue seems insufficient due to the development of the legal environment, as well as the increase in the number of tax offenses in retrospect. The improvement of criminal procedure legislation to create decent business conditions, and the further liberalization of relations between authorities and entrepreneurs in the face of ongoing sanctions pressure are key factors for the economic sustainability of our country.

"Taxes embody the economically expressed existence of the state..." ^[13]. The beginning of liberalization of relations between authorities and business representatives is a consequence of the natural and progressive activity of the state in this area of legal regulation.

Moreover, the course taken by the State to mitigate responsibility for economic crimes continues.

Thus, since March 9, 2022, in the form of a federal law, the exclusive competence of tax authorities has been introduced in matters of initiating criminal proceedings on tax crimes by sending relevant materials to investigative authorities ^[5].

Now, the reason for initiating a criminal case on crimes provided for in Articles 198-199.2 of the Criminal Code of the Russian Federation is only materials sent by the tax authorities in accordance with the legislation on taxes and fees to resolve the issue of initiating a criminal case ^[1].

Therefore, without the results of the tax audit, a criminal case cannot be initiated.

According to the explanatory note to the draft federal law "On Amendments to Articles 140 and 144 of the Criminal Procedure Code of the Russian Federation", it was developed in order to improve the legal regulation of issues regarding the initiation of criminal cases on tax crimes and crimes related to the implementation of compulsory social insurance against industrial accidents and occupational diseases ^[3].

At the same time, this is not the first attempt by the legislator to improve the legal regulation of the initiation of criminal proceedings based on the materials of specialized control bodies.

Federal Law No. 407-FZ of December 6, 2011 "On Amendments to Articles 140 and 241 of the Criminal Procedure Code of the Russian Federation" has already established a special procedure for considering the issue of initiating criminal proceedings under Articles 198-292 of the Criminal Code of the Russian Federation, in which the reason for initiating a criminal case was only those materials that were sent by the tax authorities in accordance with the legislation on taxes and fees to resolve the issue of initiating a criminal case ^[9].

The bill was aimed at improving criminal proceedings ^[2].

Subsequently, three years later, Federal Law No. 308-FZ of October 22, 2014. "On Amendments to the Code of Criminal Procedure of the Russian Federation" returned the general procedure for considering the issue of initiating a criminal case under Articles 198-292 of the Criminal Code of the Russian Federation in order to ensure an integrated approach to countering economic crimes, realizing the capabilities of law enforcement agencies and using the search potential of operational investigative activities to document tax crimes and establish intent on their commission ^[8].

As indicated in the explanatory note to the draft law, the special procedure for considering the issue of initiating criminal proceedings under Articles 198-292 of the Criminal Code of the Russian Federation "... is one of the main reasons for the low efficiency of tax crimes disclosure, which makes it significantly difficult to use the available results of operational investigative measures conducted by the internal affairs bodies of the Russian Federation in criminal proceedings The Federation in the framework of the fight against tax crime ..." ^[2].

In this regard, it is very appropriate to ask what was the reason for the low efficiency of the disclosure of tax crimes in the special procedure for considering the initiation of criminal proceedings under Articles 198-292 of the Criminal Code of the Russian Federation?

The inefficiency of individual control measures of tax control requires bringing them to the realities of life.

As noted by Rykun V.G., changes in criminal legislation (since 03/09/2022) contribute to reducing the number of abuses in the field of tax offenses due to an increase in the threshold for qualifying criminal liability for tax offenses ^[17]. However, at the moment, the legal regulation of criminal liability in terms of tax offenses does not allow us to unequivocally assert the existence of appropriate measures to influence the subjects of tax offenses.

According to the current legislation, witnesses, experts, specialists, and translators are among the participants in on-site tax audits.

The listed persons are subject to tax liability for the commission of the following tax offenses:

- non-appearance or evasion of appearance without valid reasons of a person called as a witness in a tax offense case. The sanction for the commission of this offense is one thousand rubles.

- unlawful refusal of a witness to testify, as well as giving deliberately false testimony. The sanction for the commission of this offense is three thousand rubles.

- refusal of an expert, translator or specialist to participate in conducting a tax audit. The sanction for the commission of this offense is 500 rubles.

- giving a deliberately false conclusion by an expert or making a deliberately false translation by a translator. The sanction for committing this offense is 5,000 rubles.

Based on the above, a natural question arises, how can such minor punishments serve the purposes of private and general prevention, for example, when it comes to tax evasion and fees for hundreds of millions of rubles?

In his speech at the XXV SPIEF in 2022, the President pointed out that "... we should think about raising the threshold for liability in case of non-payment of customs and other mandatory payments. In addition, we have not changed the parameters for determining large and especially large damage for a long time, despite the accumulated inflation. Such a discrepancy between the norm of the law and the realities of life certainly needs to be corrected ...".

The sanctions of Article 128 of the Tax Code of the Russian Federation, established by Federal Law No. 137-FZ of 07/27/2006, and Article 129 of the Tax Code of the Russian Federation, established by Federal Law No. 229-FZ of 07/27/2010, do not correspond adequately to modern life realities caused by accumulated inflation ^{[6, 7]}. 

Inflation for the period from 2006 to 2023 amounted to 250.11%, for the period from 2010 to 2023 it amounted to 136.93%, respectively ^[4].

In this regard, it is impossible to agree with the opinion of B.A. Nazarenko, since the mass desire of citizens to avoid paying taxes cannot be considered as an independent phenomenon in the absence of proper tools for investigating the circumstances of tax offenses ^[15].

One of the controversial topics remains the question of conducting an interrogation of a witness using videoconferencing systems. As indicated in the explanations of the assistant to the Moscow-Ryazan Transport Prosecutor I.V. Rezinkova, in accordance with the provisions of Article 278.1 of the Code of Criminal Procedure of the Russian Federation, when considering a criminal case in court using a videoconferencing system (hereinafter referred to as "VKS"), witnesses may be questioned. In the event that the interrogation of a witness in a court considering a criminal case is difficult, the court has the right to make a decision on the interrogation of a witness both on its own initiative and at the request of an interested person. At the end of the interrogation, documents and records that the interrogated witness can provide are sent to the court considering the case ^[16].

It is important to note that the reasons that make it difficult for a witness to participate in the investigation of circumstances remain identical both when considering a criminal case in court and when interrogating a witness for the purpose of identifying the circumstances of a tax offense (residence in another region, the need to incur unjustified travel costs, the presence of a real danger to life and health, a state of health in which a person is physically unable to move without assistance and others).

It seems that it is advisable to develop VKS agendas, as well as the permissibility of organizing VKS directly at the enterprise, which requires a number of appropriate changes to tax legislation.

There is no provision for a measure of procedural coercion to ensure the timely appearance of a witness for interrogation.

Such a measure of procedural coercion as a summons in case of non-appearance on a call without valid reasons of a witness would significantly increase the effectiveness of tax control.

To provide the tax authorities with the opportunity to send subpoenas to witnesses through the Public Services portal.

The issue of the possibility of conducting a comprehensive and commission examination during the production of an on-site tax audit remains unresolved.

The Tax Code of the Russian Federation does not provide for such an opportunity, which significantly reduces the clarity, completeness, and validity of the conclusions obtained as a result of expert research.

There is no possibility of questioning the expert to clarify the conclusion given by him.

It is necessary to consolidate the ability to carry out control measures in hard-to-reach areas, in the absence of appropriate means of communication, as well as in cases where the production of a control action is associated with danger to human life and health, without the participation of witnesses, with the mandatory use of technical means to record its progress and results.

Carrying out such control measures as inspection and seizure of documents raises certain questions of procedural economy.

In order to clarify the circumstances relevant to the completeness of the audit, an official of the tax authority has the right to inspect the premises of the person being checked, for which he needs to obtain a reasoned decision approved by the head of the tax authority of the official of the tax authority conducting the inspection.

At the same time, an official of the tax authority is authorized to remove documents from documents and in cases where there are not enough copies of the documents of the person being checked for tax control measures and the tax authorities have sufficient grounds to believe that the originals of documents may be destroyed, hidden, corrected or replaced, an official of the tax authority has no right to withdraw the originals of documents during the conduct such a control event as an inspection.

In order for an official to be authorized to seize the originals of documents identified during the inspection of the premises, an official of the tax authority must obtain another reasoned resolution approved by the head of the tax authority of an official of the tax authority conducting an on-site tax audit to conduct another control event: seizure.

There is no such control measure as a search, which significantly reduces the effectiveness of tax control.  Officials of tax authorities should be authorized to conduct a search on the basis of a reasoned decision of an official of the tax authority conducting an on-site tax audit approved by the head of the tax authority. 

The opinion of Batyukova V.E. regarding the lack of validity of the vector of humanization of Russian criminal policy in relation to tax crimes is controversial ^[14]. The above-mentioned statistical information and the identified problems in tax legislation necessitate changes to the provisions governing the conduct of control measures and are predetermined by the realities of life.

Thus, at the moment, the legislator is making certain attempts to improve the criminal procedure legislation of the Russian Federation, but the pace of creation in tax law requires simultaneous changes to the institute of tax control, which include the improvement of existing control measures and the introduction (borrowing) of new control measures. Improving the effectiveness of tax control measures is aimed at achieving the goals of private and general prevention of taxpayers, which, of course, is the basis for replenishing the regulatory framework.