Theoretical and legal approaches to determining the essence of circumstances to be proved in the tax process.

Orlova Natalia Postgraduate Student of the Department of International and Public Law of the Faculty of Law in Financial University under the Government of the Russian Federation (Financial university), Interdistrict Inspectorate of the Federal Tax Service of the Russian Federation No. 17 for the Moscow Region 140000, Russia, Moscow region, Lyubertsy, Kotelnicheskaya str., 6 natali__orlova@mail.ru

Introduction

The legal regulation of activities related to the proof of tax offenses is unsystematic, which has a negative impact on the quality of tax control, the legality and validity of bringing taxpayers to tax liability.

The study of individual elements of the system of proving tax offenses is important not only for improving the law enforcement activities of the bodies authorized in the field of ensuring the payment of taxes (fees, contributions), but also for expanding theoretical knowledge of tax law and the tax process.

Despite the recognition by scientists of the tax process as a type of legal process, it is an insufficiently studied legal phenomenon, which indicates the need for its consistent study ^{[1, p. 74]}.

Tax procedural rules

  The Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation, the Tax Code of the Russian Federation), along with substantive and legal norms, contains procedural norms that regulate relations that develop in connection with the performance by officials of bodies authorized in the field of taxes and fees (hereinafter referred to as tax authorities), functions of control and supervision over compliance with tax legislation, completeness and timeliness of taxes and other mandatory payments to the budget, as well as performance of other duties related to this activity ^{[7, pp. 252-253]}.

It should be noted that in the theory of law, procedural norms are assigned a "secondary function" – to ensure the implementation of substantive legal norms, in another way they are called "auxiliary". Meanwhile, it is procedural norms in tax law that contribute to the emergence of legal relations related to ensuring full and timely payment of taxes, without the existence of procedural norms, relations do not arise.

     Yu. I. Melnikov, studying the nature and content of procedural norms, came to the conclusion that they regulate relations related to the need to comply with a certain order, without which it is impossible to imagine control over the completeness and timeliness of tax payments ^{[6, p. 82]}.

     Civil society today has not reached the stage of development when taxes will be paid voluntarily and the need for enforcement measures or tax liability will objectively disappear ^{[7, p. 249]}. The relations arising in connection with the obligation to pay taxes are connected with the alienation in favor of the state of a part of the property owned. Consequently, such legal relations are conflicting, giving rise to disputes related to both the refusal to fulfill the obligation to pay taxes and the refusal to fulfill obligations related to the exercise by tax authorities of the functions of monitoring compliance with legislation on taxes and fees.

      Thus, the procedural norms of tax law regulate public relations in the field of protective activities of authorized bodies, and are of fundamental importance for ensuring the consistency of actions related to the formation of the revenue side of the country's budget, ensuring legality, and respect for the rights and interests of taxpayers.

       Agreeing with I. A. Saprykina, it should be noted that "ensuring that taxpayers fulfill their obligations to pay taxes and fees to the budget is the most important task of the state" ^{[7, p. 248]}.

      A set of procedural norms of related branches of law regulating relatively homogeneous social relations form procedural branches: criminal, administrative, arbitration, civil processes.

        Since the separation of tax law, there have been disputes about the existence of a tax process.

Tax process

        So, M. V. Sentsova (Karaseva) back in 2003, she noted that tax legislation generates an array of non-property tax relations directly related to the implementation of property relations ^{[4, p. 18]}.

    D. V. Vinnitsky, combining material and procedural tax and legal norms related to the implementation of tax obligations and tort relations, distinguishes tax procedural law ^{[2, p. 294]}.

   V. I. Gudimov defines the tax process as a system of tax law norms that regulates the power activities of bodies and officials authorized by the state in the field of taxes and fees ^{[3, p. 24]}.

       Some authors define the tax process as a set of procedural rules ^{[5, p. 8]}.

    The most reasonable approach is the one defining the tax process as a dynamically developing activity of authorized tax authorities over time, aimed at ensuring the payment of taxes, contributions and fees to the budget system of the Russian Federation, as well as performing other functions related to tax control and bringing to tax responsibility for committing offenses ^{[1, p. 74]}.

       Despite the difference of views on the substantive part of the tax process, scientists agree that the purpose of its course is to ensure the payment of legally established taxes.

      The tax process, like any process, has stages that include: the establishment of the obligation to pay tax, its voluntary execution, the implementation of tax control, the preparation and delivery of the tax audit report, the submission by the taxpayer of objections to the tax audit report, the conduct of additional tax control measures and the adoption by the tax authority of a decision on the result of the audit, as well as the appeal of the decision of the tax authority. to a higher tax authority.

       In most cases, at the stage of appealing an individual legal act, the tax process is completed if there is no reversal of the execution of the tax authority's decision on tax collection that has entered into legal force.

    At all stages of the tax process, the tax authorities make decisions of an individual nature, which are related both to ensuring the payment of tax and to bringing to responsibility for committing tax offenses.

                Law enforcement activities in the tax process

      The choice of a collective term for the name of a law enforcement act in this case is based on a logical-linguistic study conducted by A. F. Cherdantsev, in which the scientist comes to the conclusion that state bodies in the process of law enforcement activities accept documents "having an imperatively binding nature, entailing legal consequences, i.e. establishing, changing or terminating subjective rights and legal responsibilities" ^{[10, p. 30]}. Since these documents are legally binding, it is most correct to call them decisions.

     In this case, at the stage of compulsory execution of the obligation to pay tax, the tax authority makes a demand for payment of arrears, and in case of refusal to fulfill it, the following may be taken: a decision on debt collection at the expense of the taxpayer's funds, as well as a decision on debt collection at the expense of his property.

   When a tax offense is detected, the tax authority draws up a tax audit report, after consideration of which a decision may be made to carry out additional tax control measures or a decision to bring (to refuse to bring) to tax liability.

      In this case, the decision-making process of an individual nature is mediated by the establishment of facts of legal significance.

    Law enforcement in the tax process, if we do not take into account the execution of an individual decision, consists of three stages: the initial stage includes the receipt by the law enforcement officer of information (its perception) about the rules of law that establish the rule of proper (or improper) behavior and at the same time collecting information about facts that have legal significance.

            Circumstances to be established (proved) in the tax process

   In this case, the facts will be only confirmed information about any events. Until the moment of confirmation, we can only talk about speculation and assumptions about the event, the confirmation of which will have legal significance.

       It should be noted that only those facts with which the application of the rule of law is connected are subject to establishment.

    The Tax Code of the Russian Federation provides for the obligation of officials of the tax authority to document the facts-evidence in the course of certain tax control measures, since these proofs must subsequently not only be checked and evaluated, but also be provided for familiarization to the taxpayer. Such documents include protocols drawn up during tax control measures and recording knowledge of a fact that serves as proof of a legal fact ^{[10, p. 30]}.

       The recording of facts-evidence is carried out only in cases stipulated in the legislation on taxes and fees, meanwhile, obtaining knowledge about the circumstances proving facts of legal significance occurs in all types of law enforcement activities of the tax authority, including those related to the compulsory collection of debts. This circumstance in some cases leads to the impossibility on the part of the tax authority to subsequently confirm the validity of a claim for payment of arrears (for tax or penalty) or a decision on collection, since the accounting of a single tax account is carried out on an accrual basis.

      Of particular interest to the study is the question of the correctness of the use of the term "fact" or "circumstance" to denote an event with which legal consequences in the tax process may be associated.

      Referring to the research of A. F. Cherdantsev, it should be noted that the scientist proceeds from the literal interpretation of the term "circumstance", which is usually understood as a phenomenon, condition, situation ^{[10, p. 169]}. The scientist notes that, using the terms "circumstance", "fact" and others similar in legal science, it is necessary to take into account that it is not about the circumstances and facts themselves, but about knowledge about these circumstances and facts. Thus, in this study, when talking about circumstances, we mean knowledge about them.

     By the term "circumstance", the legislator designates events that prevent the possibility of paying tax (Article 24 of the Tax Code of the Russian Federation), events that entail a change in the agreement on the creation of a consolidated group of taxpayers (Article 25.4 of the Tax Code of the Russian Federation), events that are important for determining the results of the transaction (Article 40 of the Tax Code of the Russian Federation), natural disasters (Article 58 of the Tax Code of the Russian Federation) and T. p .

   The term "circumstance" in the legislation on taxes and fees is used even to designate objects of taxation when the legislator cannot clearly define a characteristic of value having a cost, quantitative or physical characteristic, with the presence of which the taxpayer has the obligation to pay tax.

   In addition, the term "circumstance" is used to denote events, actions, states with which the legislator associates the occurrence, execution and termination of the obligation to pay tax (Articles 44, 45 of the Tax Code of the Russian Federation).

   From the point of view of tax control, it is interesting to use the term "circumstance" in relation to the establishment of exceeding the limits of rights to calculate the tax base and the amount of tax (Article 54.1 of the Tax Code of the Russian Federation), as well as the establishment of the composition of a tax offense (Article 108-112 of the Tax Code of the Russian Federation).

    Article 54.1 of the Tax Code of the Russian Federation states that the establishment of circumstances related to the distortion of the facts of economic life (objects of taxation) to be reflected in accounting and tax accounting, the execution of the transaction by another person who was not a party to it, as well as circumstances indicating that the main purpose of the transaction is non-payment (incomplete payment) of tax, entails the refusal of the taxpayer to apply the tax benefit.

    In accordance with Article 108 of the Tax Code of the Russian Federation, the tax authority is obliged to prove the circumstances testifying to the fact of committing a tax offense, as well as the guilt of a person in its commission.

    During the consideration of the materials of the tax audit before the decision is made, the official of the tax authority must establish the circumstances precluding bringing a person to responsibility, excluding the guilt of a person in committing an offense, as well as the circumstances mitigating or aggravating responsibility for committing a tax offense.

    Thus, the term "circumstance" is widely used in the legislation on taxes and fees, since it allows you to indicate various events, phenomena, conditions both confirmed, which become actual circumstances, and not confirmed.

       O. G. Sardaeva defines a "circumstance" as "a concomitant or related phenomenon that encompasses not only the event or action that occurred, but also all the details, features, details and features" ^{[8, p. 37]}. The scientist came to the conclusion that the concept of "circumstance" is much broader than the concept of "fact", since "fact" includes only confirmed information about an event, phenomenon, action, inaction ^{[8, p. 37]}.

      The concept of "fact" in the Tax Code of the Russian Federation is laid down as the basis for bringing to tax liability. According to Article 108 of the Tax Code of the Russian Federation, "the basis for bringing to tax liability for violations of the legislation on taxes and fees is the establishment of the fact of the commission of this violation by a decision of the tax authority that has entered into legal force."

     Following the logic of the legislator, it can be concluded that the circumstances in the tax process are events, phenomena, conditions accompanying, surrounding the very violation of the legislation on taxes and fees, which can be expressed as an action or inaction, characterized by both intentional actions and careless behavior.

       The Tax Code of the Russian Federation provides for various types of tax offenses, some of which are general and do not contain qualifying features, for example, paragraph 1 of Article 122 of the Tax Code of the Russian Federation, which provides for liability for non-payment or incomplete payment of tax in the form of a fine of 20% of the amount of unpaid tax. The same act, committed intentionally, provides for a fine of 40%. Thus, the qualification feature is the intent to commit an offense.

   In paragraph 3 of Article 120 of the Tax Code of the Russian Federation there is a qualification sign indicating the method of committing the same offense: as a result of gross violation of the rules for accounting for income, expenses and objects of taxation.

     Due to the fact that the Tax Code of the Russian Federation provides for two forms of guilt, and also contains various compositions of tax offenses (basic and qualifying), in addition to establishing the fact of the offense itself, it is necessary to properly qualify it, i.e. to establish circumstances indicating compliance with a particular model of offense provided for in the law.

   Thus, the adoption of individual decisions by the tax authority is associated with the establishment of certain circumstances that are specified in the hypothesis of the article of the Tax Code of the Russian Federation and other related circumstances that are not directly specified, but without the establishment of which an unambiguous judgment is impossible.

     It should be noted that the circumstances to be proved in the tax process are not homogeneous. Some of them are part of the taxpayer's economic activity and are directly related to the payment of tax, others have a procedural nature.

    In the course of applying penalties, tax officials must establish procedural circumstances.

     Thus, the issuance of a claim for payment of arrears is preceded by the need to establish the circumstances that form a negative balance of the tax account. Such circumstances include: the correctness of the reflection on a single tax account of the amount of tax calculated by the taxpayer for payment to the budget or accrued by the tax authority administratively in respect of property taxes, the correctness of the reflection and reversal of tax accruals based on the notification of tax payment at the time of submission of the tax return, the absence of a single tax payment.

      In order to make a decision on debt collection at the expense of funds in accordance with Article 46 of the Tax Code of the Russian Federation, an official of the tax authority must establish circumstances related not only to the presence of debt to the budget, but also circumstances confirming the receipt by the taxpayer of a claim for debt payment.

        The establishment of similar circumstances precedes the decision on debt collection at the expense of property.

      Thus, in the course of law enforcement activities related to debt collection, the circumstances to be proved are procedural in nature, but have a direct connection with the payment of taxes as a process of their transfer to the budget.

      In the course of conducting tax audits (on-site, desk and transfer pricing audits), the circumstances to be proved are events in the taxpayer's economic activity related to the objects of taxation and allowing for the correct qualification of the offense committed.

     It should be noted that the purpose of conducting tax audits is to verify the completeness of the calculation and timely payment of taxes. Thus, the offenses detected during tax audits are related to the fulfillment of the taxpayer's main duty – the payment of tax. Liability for committing offenses related to non-payment (incomplete payment) of tax is provided for in Articles 120, 122, 123 of the Tax Code of the Russian Federation, as well as Articles 129.3 and 129.5 of the Tax Code of the Russian Federation in relation to controlled transactions.

     In this case, the fact of the offense will be the knowledge confirmed by appropriate (permissible, relevant and reliable) evidence about the deviation of the amount of tax calculated for payment to the budget by the taxpayer and reflected by him in the tax reporting, and the amount of tax calculated by the tax authority on the basis of tax audit materials.

   Events directly related to the taxpayer's calculation of the tax amount will be circumstances. After their establishment and confirmation, they will become factual circumstances that affect the correct qualification of a tax offense.

         The circumstances to be proved during the tax audit vary significantly, but they all have a direct connection with the economic life of the taxpayer, characterizing his relations with contractors, employees, accounting of business transactions and others.

     In the methodological recommendations drawn up jointly by the Federal Tax Service of Russia and the Investigative Committee of Russia (letter of the Federal Tax Service of Russia dated 13.07.2017 No. ED-4-2/13650@ "On the direction of methodological recommendations for the establishment during tax and procedural inspections of circumstances indicating intentional actions of taxpayer officials aimed at non-payment of taxes (fees)"), proof is subject to circumstances testifying to the consistency of the actions of the taxpayer and his counterparties aimed at creating the appearance of compliance with the requirements of the legislation on taxes and fees; imitation by the taxpayer of economic relations with "technical" companies in order to minimize tax obligations; the imaginary or pretence of transactions that allow to receive tax benefits; substitution of civil relations in order to extract benefits and others.

      In the course of carrying out other tax control measures, tax authorities identify offenses directed against the system of tax control relations, which include failure to provide the tax authority with the information necessary for tax control, failure of a witness to appear without valid reasons, refusal of an expert to participate in a tax audit, and others ^{[9, p. 294]}.

      The circumstances to be proved for these types of offenses will be the circumstances that allow to establish the fact of receipt of a request, payment order, violation of the order of payments, etc.

     Thus, in order to hold a taxpayer liable for non-submission of documents (information) on the basis of a claim submitted to him, the tax authority must establish the circumstances of receipt of the claim, the correctness of the indication of the documents to be claimed, and their "actual availability to the taxpayer" (Letter of the Federal Tax Service of Russia dated 12/30/2022 No. SD-4-2/18011 "On Liability for failure to submit documents at the request of the tax service").

     In order to hold a witness accountable for failing to appear at the tax authority for questioning, the tax authority must establish the circumstances of the witness's notification of the need to appear (Krasnodar Regional Court Ruling No. 33a-1327/2018 of 16.01.2018), the presence (absence) of circumstances preventing the appearance. Thus, when a witness presents a certificate of disability, the tax authority is obliged to take measures to obtain information about the nature of the disease (Definition of the Kurgan Regional Court of 03.02.2015 No. 22-290/2015).

    Summarizing the information about the circumstances to be proved for offenses detected during other tax control measures, it is necessary to note their procedural nature, not related to the obligation to pay tax.

     Thus, the conducted research made it possible to establish the legal nature and distinguish the circumstances to be proved in the tax process.

    The circumstances to be proved during the tax audit are directly related to the fulfillment of the main obligation – the payment of taxes (contributions), are part of the economic (economic) activities of the taxpayer.

  The circumstances to be established (proved) during the implementation by the tax authority of law enforcement activities to ensure the payment (collection) of taxes (fees, contributions) are procedural in nature, but have a connection with the performance of the main duty – the payment of tax.

    The circumstances to be proved in connection with the establishment of offenses in the course of other tax control measures directed against the tax control system are of a procedural nature related to the provision of other duties in the tax process.

         Conclusions

         Based on the above , the following conclusions can be drawn:

· the law enforcement activity of tax authorities in the tax process is inextricably linked with the establishment of circumstances;

· the circumstances to be established (proved) in the tax process are not homogeneous;

· based on the legal nature, it is proposed to identify the circumstances to be proved during tax audits, as well as the circumstances related to ensuring the payment (collection) of taxes (fees, contributions), and the circumstances related to the implementation of tax control.

         Conclusion

The conducted research made it possible to identify new theoretical and legal approaches to determining the essence of the circumstances to be proved in the tax process.

The author substantiates that the circumstances to be proved during the tax audit are directly related to the economic activity of the taxpayer, are events in his economic life.

The circumstances related to ensuring the payment of taxes (fees, contributions) and tax control are procedural in nature.

The differentiation of the circumstances to be proved in the tax process allows us to continue research in this area of knowledge to replenish the conceptual apparatus, identify connections and patterns.

The identification of the legal nature of the circumstances to be proved in the tax process allows the conclusions to be used in law enforcement activities.