Tax extenuating circumstances: choose, declare. Mitigating circumstances when committing a tax offense Circumstances mitigating liability for committing a tax offense

Circumstances mitigating liability are recognized (clause 1, article 112 of the Tax Code of the Russian Federation):

1) the commission of an offense as a result of a combination of difficult personal or family circumstances;

3) a new tax offense must be committed within 12 months from the date of entry into legal effect decisions of a court or a tax authority on the application of a tax sanction for a similar tax offense (clause 3, article 112 of the Tax Code of the Russian Federation).

The circumstance aggravating tax liability is also implemented through the rules contained in Art. 114 NK. When a court or tax authority establishes a sign of repetition, the amount of the fine is doubled in comparison with the amount established by the corresponding special article of Ch. 16 or 18 of the Tax Code of the Russian Federation (Clause 4, Article 114 of the Tax Code of the Russian Federation). It seems that this norm of the Tax Code of the Russian Federation does not contradict the constitutional principles of proportionality and fairness of punishment, since the very fact of the systematic nature of obviously illegal activities rightly entails an increase in the size of the sanction.

2) with individual, which is not individual entrepreneur- to a court of general jurisdiction.

The tax authorities can apply to the court with a claim for the collection of fines (clause 1, article 115 of the Tax Code of the Russian Federation):

from an organization and an individual entrepreneur - in the manner and within the time limits provided for in Art. 46 and Art. 47 of the Tax Code of the Russian Federation;

from an individual who is not an individual entrepreneur - in the manner and terms provided for in Art. 48 of the Tax Code of the Russian Federation.

The penalties charged by the tax authorities for a violation of the law can be reduced if the taxpayer has circumstances that can be considered mitigating. In this article, we will consider what circumstances this may be and how to reduce the amount of the fine.

Legislative regulation of the issue

Legislative regulation of the issue is carried out by the Tax Code Russian Federation. describes the rights of taxpayers to reduce penalties and the rights of the tax inspectorate to increase the amount of the fine in the presence of aggravating circumstances. introduces the concept tax sanctions and features of their application to taxpayers.

Tax sanctions - reduction and increase in the amount of the fine

The Tax Inspectorate will review the Application and make a decision to reduce the amount of the fine or refuse the application. The application must indicate all the circumstances that can be recognized as mitigating for the purposes of calculating the fine. Also, when applying, you must attach any documents confirming the existence of circumstances due to which the fine can be reduced.

Important! The tax inspectorate may decide to reduce tax sanctions twice upon receipt of a petition from the taxpayer, but cannot reduce the amount of tax and accrued penalties.

What to do if the tax authorities refused to reduce the amount of the fine

If the tax inspectorate has considered the taxpayer's application and decided not to reduce the amount of the fine, considering these circumstances insufficient to reduce penalties, the taxpayer may apply to a higher tax authority or to the court by filing a lawsuit.

Example.

LLC "Astra" submitted reports on insurance premiums for the 1st quarter of 2020 on May 5, 2020. Since the deadline for submitting the Calculation of insurance premiums is until April 30, 2020, the tax office conducted an inspection after tax offense and accrued a fine of 1000 rubles for not submitting the report on time. About the fact of the check on the accrued fine tax inspector notified Astra LLC. The director of Astra LLC filed a petition with the tax office to reduce the amount of sanctions and indicated the following facts as extenuating circumstances:

The violation was committed for the first time by this legal entity;
Insurance premiums were paid on time in full;
The violation did not cause serious losses for the budget.

The inspector, having considered the petition, decided to reduce the amount of sanctions, reducing the fine from 1,000 rubles to 500 rubles.

In the article, the author, taking into account the prevailing law enforcement practice, considers what circumstances can be taken into account by the tax authority or the court when applying tax sanctions as mitigating tax liability.

Circumstances mitigating tax liability are listed in paragraph 1 of Art. 112 of the Tax Code of the Russian Federation. In contrast to the grounds specified in paragraph 1 of Art. 111 of the Tax Code of the Russian Federation (which exclude tax liability), they do not completely exempt from tax liability, but only reduce the amount of the imposed fine.

Paragraph 3 of Art. 114 of the Tax Code of the Russian Federation provides for the possibility of reducing the amount of fines imposed on the basis of the Tax Code of the Russian Federation for committing tax offenses, if mitigating circumstances are established. So, in the presence of at least one mitigating circumstance, the amount of the fine is subject to a reduction of at least two times compared to the amount determined by the relevant article of Ch. 16 of the Tax Code of the Russian Federation for committing a tax offense. Note that the circumstances mitigating liability are established by the court or the tax authority and are taken into account by it when imposing sanctions for tax offenses (clause 4, article 112 of the Tax Code of the Russian Federation).

How can the fine be reduced?

The Plenum of the Armed Forces of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation in a joint resolution dated 11.06.1999 No. 41/9 (hereinafter referred to as Resolution No. 41/9) noted that since in paragraph 3 of Art. 114 of the Tax Code of the Russian Federation establishes only the minimum limit for reducing the tax sanction, the court, based on the results of an assessment of the relevant circumstances (for example, the nature of the offense committed, the number of mitigating circumstances, the identity of the taxpayer, his financial situation), has the right to reduce the amount of the penalty by more than two times.

Thus, the amount of the fine imposed for the commission of a tax offense, if the court establishes at least one mitigating circumstance, can be reduced in the range from 50 to 100% of the size of the tax sanction. However, it should not be zero. The fact is that the appointment by the court of a fine of 0 rubles. 00 kop. in fact, it will be the release of the person brought to tax liability from the application of a tax sanction.

Judicial practice shows that the courts actively use this right and, in the presence of established extenuating circumstances, reduce the tax liability of taxpayers by several times.

Arbitrage practice

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The Federal Antimonopoly Service of the Moscow District, in Resolution No. КА-А40/8428-11 dated 04.08.2011, supported the position of the lower courts, which partially satisfied the organization's claim to the tax authority to invalidate the decision to hold accountable for committing a tax offense in the form of a fine of more than 1 million rub. and reduced the specified amount to 100 rubles. Satisfying the stated requirements in terms of reducing the amount of the fine, the courts proceeded from the existence of circumstances mitigating the applicant's liability for the alleged offense.

FAS of the Moscow District, guided by the provisions of par. 2 para. 19 of Decree no. 41/9, dismissed the arguments of the complaint about the excessive reduction in the amount of the fine.

Arbitrage practice

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According to the decision of the FAS Central District dated March 28, 2012 in case No. А09-5167/2011, resolving the dispute about the amount of the fine to be recovered from the taxpayer under Art. 119 and 126 of the Tax Code of the Russian Federation, lower courts, applying the provisions of Art. 112 and 114 of the Tax Code of the Russian Federation, reduced the amount of the fine under the above articles, pointing to the existence of mitigating circumstances for the taxpayer. In particular, the fact that the organization economic activity in the 2nd quarter of 2010 she did not conduct, had no income, partially voluntarily paid penalties, the offense did not entail harmful consequences for the budget.

Moreover, according to the tax authority, the minimum amount of the sanction established by Art. 119 of the Tax Code of the Russian Federation (1000 rubles), cannot be reduced due to the presence of certain art. 112 of the Tax Code of the Russian Federation of mitigating circumstances, since reducing the fine below the lower limit is unlawful. This position is consistent with the letter of the Federal Tax Service of Russia dated November 26, 2010 No. ShS-37-7 / [email protected]

However, according to the Federal Antimonopoly Service of the Central District, the reference of the tax inspectorate to the said letter is untenable, since tax law does not contain a ban on reducing the fixed minimum size fine.

Proportionality of the fine

The tax authorities, when deciding on bringing to tax liability in the event that, during the audit, the circumstances of the commission of a tax offense that can be regarded as mitigating are established, are obliged on the basis of paragraph 3 of Art. 101 of the Tax Code of the Russian Federation to reflect them in the decision. However, the fact of non-reflection is not an obstacle to establishing such circumstances by the court on its own.

In addition, from Art. 112 of the Tax Code of the Russian Federation it follows that the court is obliged, when considering the issue of holding a person liable, to establish the presence or absence of such circumstances.

As follows from the decision of the Constitutional Court of the Russian Federation of July 15, 1999 No. 11-P, sanctions of a punitive nature, based on general principles rights must meet the requirements of fairness and proportionality arising from the Constitution of the Russian Federation.

The principle of proportionality, expressing the requirements of justice, involves the establishment of public liability only for the guilty act and its differentiation depending on the severity of the deed, the size and nature of the damage caused, the degree of guilt of the offender and other significant circumstances that determine individualization in the application of the penalty. These principles of bringing to responsibility equally apply to individuals and legal entities.

Arbitrage practice

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The Federal Antimonopoly Service of the North-Western District, in its decision dated March 5, 2012 in case No. A66-5375 / 2011, adds that the courts of first and appeal instances are vested with the right to establish and assess these circumstances, including the presence (absence) of mitigating or aggravating liability.

open list

What circumstances can mitigate liability for committing a tax offense? In accordance with paragraph 1 of Art. 112 of the Tax Code of the Russian Federation they are recognized:

committing an offense as a result of a combination of difficult personal or family circumstances;
commission of an offense under the influence of threat or coercion or due to material, service or other dependence;
the difficult financial situation of an individual held liable for committing a tax offense;
other circumstances that may be recognized by a court or tax authority as mitigating liability.

Under the circumstances of the case considered by the Presidium of the Supreme Arbitration Court of the Russian Federation in Resolution No. 3299/10 dated October 12, 2010, the institution, challenging the legitimacy of the decision to bring it to tax liability, did not file a petition for a further reduction in the fine, but drew the attention of the court to the actual circumstances (missing the deadline submission of a declaration for one day) and the reason for the offense (computer network failure). In addition, as can be seen from the appeal of the institution to a higher tax authority (with a request to reduce the size of the sanction), it referred to the fact that the payment of such a fine amount would entail a significant reduction in funds allocated for research and development financed from the budget.

In such a situation, the Presidium of the Supreme Arbitration Court of the Russian Federation, noting that the list of mitigating circumstances given in Art. 112 of the Tax Code of the Russian Federation, is not exhaustive, and that the court has the right to recognize other circumstances not specified in subpara. 1, 2, 2.1 Art. 112 of the Tax Code of the Russian Federation, as a mitigating responsibility, came to the conclusion that the case should be sent to the court of first instance for a new trial in terms of determining the amount of the sanction to be recovered from the institution, taking into account Art. 112 of the Tax Code of the Russian Federation.

Let us examine with examples what circumstances the courts recognize as mitigating the liability of taxpayers.

Arbitrage practice

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The Federal Antimonopoly Service of the Moscow District in its decision No. КА-А40/8428-11 dated 04.08.2011 noted that, having evaluated and examined all the evidence presented in the case file, the lower courts made the correct conclusion about the presence of the following mitigating circumstances for the applicant:

bringing to tax liability for the first time for the entire period of the company's activities;
lack of direct intent in committing an offense;
the disproportionate amount of the imposed fine to the consequences of the tax offense, which is confirmed by the fact that the amount of the tax sanction is about 50% of the amount of tax calculated for payment according to the declaration;
no adverse economic consequences for the budget, since the payment of the calculated tax return the tax was made in accordance with paragraph 3 of Art. 204 of the Tax Code of the Russian Federation the terms in full;
the absence of significant and irreversible harm to the interests of the state.

Arbitrage practice

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In the aforementioned decision of the Federal Antimonopoly Service of the Central District dated March 28, 2012 in case No. А09-5167/2011, the following circumstances were recognized as mitigating tax liability:

lack of economic activity and income;
partial voluntary payment of penalties;
the absence of harmful consequences of the offense for the budget.

Arbitrage practice

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The Third Arbitration Court of Appeal, in its decision of December 29, 2011 in case No. A74-2935 / 2011 (by the decision of the FAS of the East Siberian District of March 20, 2012 in the same case, it was left unchanged) supported the position of the court of first instance, which considered the missed deadline for submitting the tax declaration for one day and recognized this circumstance as mitigating the responsibility of the taxpayer, in connection with which he reduced the amount of the fine by half - to 500 rubles. Similar conclusions are contained in the decision of the Fourteenth Arbitration Court of Appeal dated February 16, 2012 No. А05-11315/2011.

Arbitrage practice

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The Seventh Arbitration Court of Appeal, in its decision of October 25, 2011 No. 07AP-8142/11, having examined and assessed the nature and circumstances of the offense committed by the enterprise, given the great socio-economic significance of the enterprise, the focus of activities on ensuring social functions- provision of services in the field of passenger transportation ground transport, the fulfillment of a municipal (state) order for the implementation of public passenger transportation (including the poor and middle strata of the population), the organizational and legal form of the enterprise is a municipal state-owned enterprise, and also taking into account the difficult financial situation of the applicant, which is confirmed balance sheet and profit and loss account, came to the conclusion that it is possible to reduce the amount of penalties by 100 times, which meets the requirements of fairness and proportionality of punishment.

Arbitrage practice

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The Eighteenth Arbitration Court of Appeal, in Resolution No. 18AP-13252/2011 dated January 25, 2012, drew attention to the fact that the right to establish the existence of mitigating circumstances, as well as to reduce the amount of the fine, was granted both to the tax authority in the proceedings on a tax offense case, and to the court when considering the application , and the reduction of the amount of liability by the inspection does not exclude the right of the court to also apply extenuating circumstances. Having examined and assessed the nature and circumstances of the offense committed by the organization, namely: it was committed for the first time, the applicant has no intent, the taxpayer is not legally aware and is in a difficult financial situation, the court came to a reasonable and objective conclusion about the possibility of reducing the amount of penalties.

Arbitrage practice

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In Resolution No. 18AP-8904/2011 dated September 26, 2011, the Eighteenth Arbitration Court of Appeal reduced the amount of penalties to 5,000 rubles. based on the fact that the taxpayer committed an offense for the first time, admitted his guilt and paid the amount of the debt, and also due to the difficult financial situation of the organization and the fact that it has loan obligations before third parties.

Thus the last arbitrage practice shows that, for example, the following circumstances are recognized as mitigating:

The absence of adverse economic consequences of the offense and the material damage caused to the state.
Lack of intent to commit a tax offense.
Insignificant nature of the offense, payment of tax and the amount of the fine.
Organizational and legal form of the taxpayer, its financing from the budget.
Insignificance of the delay allowed.
Committing an offense for the first time.
The disproportion of the sanction to the consequences of the offense committed, the voluntary payment of tax to the budget.
Lack of sufficient Money for the payment of taxes and tax sanctions, lack of profit, the presence of debts to counterparties, the presence of wage arrears.
The difficult financial situation of the taxpayer, the presence of debt obligations to third parties.
Errors, failure in the computer network.

At the same time, it is worth noting that in each case, the court or the tax authority independently decides on the legality of mitigating liability based on specific circumstances.

1. Circumstances mitigating responsibility for committing a tax offense are:
1) the commission of an offense as a result of a combination of difficult personal or family circumstances;
2) the commission of an offense under the influence of threat or coercion or due to material, service or other dependence;
2.1) the difficult financial situation of an individual held liable for committing a tax offense;
3) other circumstances that the court or tax authority considering the case may recognize as mitigating liability.

2. An aggravating circumstance shall be the commission of a tax offense by a person previously held accountable for a similar offense.

3. A person from whom a tax sanction has been levied shall be considered subject to this sanction within 12 months from the date of entry into force of a court decision or a tax authority.

4. Circumstances mitigating or aggravating responsibility for committing a tax offense shall be established by the court or tax authority considering the case and taken into account when applying tax sanctions.

Commentary on Article 112 of the Tax Code of the Russian Federation

The commented article establishes a list of circumstances mitigating and aggravating liability for tax offenses.

Unlike the circumstances specified in Article 111 of the Tax Code of the Russian Federation, which exclude guilt in committing a tax offense, circumstances mitigating liability (the list of which is also open) do not completely exclude the onset of tax liability, but only reduce the amount of the imposed fine.

Those. in this article, the legislator established the possibility of mitigating liability for a tax offense, and not exempting from it in the presence of circumstances established by law.

Note that the Tax Code of the Russian Federation does not contain instructions on the procedure for imposing punishment in the presence of both mitigating and aggravating circumstances. In this case, the decision is made by the tax authority or the court independently.

A similar position is set out in the Decree of the Federal Antimonopoly Service of the North Caucasus District dated February 22, 2011 N A32-18972 / 2010.

The circumstance mitigating tax liability is in a causal relationship with the offense itself, that is, the court, in order to recognize any actual circumstance as mitigating, must establish how it affected the objective or subjective side of the illegal act.

According to the legal position of the Constitutional Court of the Russian Federation, reflected in Resolution No. 14-P of May 12, 1998, penalties for a tax offense should be applied taking into account the nature of the offense committed, the amount of harm caused, the degree of guilt of the offender, his property status and other significant circumstances of the act.

Resolution of the Constitutional Court of the Russian Federation No. 11-P dated July 15, 1999 states that punitive sanctions must meet the requirements of fairness and proportionality. The principle of proportionality, expressing the requirements of justice, involves the establishment of public liability only for the guilty act and the differentiation of liability depending on the severity of the deed, the size and nature of the damage caused, the degree of guilt of the offender and other significant circumstances that determine individualization in the application of the penalty.

The Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of October 12, 2010 N 3299/10 states that the list of mitigating circumstances given in Article 112 of the Tax Code of the Russian Federation is not exhaustive, and the court has the right to recognize other circumstances not specified in subparagraphs 1, 2, 2.1 of paragraph 1 Article 112 of the Tax Code of the Russian Federation, as mitigating liability.

Based on the recommendations of the Presidium of the Supreme Arbitration Court of the Russian Federation contained in paragraph 17 of the Information Letter dated March 17, 2003 N 71 "Review of the practice of resolving cases by arbitration courts related to the application of certain provisions of part one tax code of the Russian Federation", when considering an application by a tax authority for the recovery of a fine from a taxpayer, provided for in paragraph 1 of Article 122 of the Tax Code of the Russian Federation, the amount of the fine may be reduced on the basis of Articles 112 and 114 of the Tax Code of the Russian Federation, taking into account such mitigating circumstances as independent identification and correction by the taxpayer errors in the tax return and filing with the tax authority an application for its addition and amendment.

Failure to take these circumstances into account when deciding on the amount of the fine may contribute to taxpayers evading the above obligation in the hope that errors will not be detected by the tax authority.

According to the Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of April 26, 2011 N 11185/10 in case N A73-16543/2009, the filing of revised tax returns and the payment of additional tax amounts can be taken into account as circumstances mitigating liability for committing a tax offense under paragraph 1 of Article 122 of the Tax Code RF.

The Twelfth Arbitration Court of Appeal, in its Ruling of May 20, 2010 in case N A12-1902/2010, rejected the tax authority's arguments that the submission of an updated tax return is the taxpayer's obligation in accordance with paragraph 1 of Article 81 of the Tax Code of the Russian Federation, which excludes the classification of this circumstance as mitigating a responsibility.

The court pointed out that the only reason for conducting a cameral trial against a taxpayer tax audit and the adoption by the tax authority, based on its results, of a decision to hold the company accountable for the incomplete payment of tax as a result of understating tax base was the submission by the taxpayer of an amended tax return. The tax authorities did not have any evidence of receipt of information about non-payment of taxes from other sources before the taxpayer submitted the corrected declaration. With respect to the taxpayer, no decisions were made to conduct an on-site tax audit. The taxpayer, without any coercion or other external influence, independently fulfilled the obligation to make additions and changes to the tax return in connection with the discovery of inaccuracies and errors in it, provided for in paragraph 1 of Article 81 of the Tax Code of the Russian Federation, despite the fact that at the time it was not possible to filing an amended tax return to pay tax and penalties.

Refusal to recognize the specified circumstance as mitigating liability may give rise to a situation aimed at the fact that changes and additions to tax returns will be made by taxpayers not at the time of their discovery, but only if there are funds available to pay tax and penalties.

At the same time, the court noted that the Tax Code of the Russian Federation does not establish restrictions on the application of the provisions of Article 112 of the Tax Code of the Russian Federation to one or another element of a tax offense. The tax legislation does not limit the taxpayer either in the number of possible extenuating circumstances or in the ways of proving them. A formal approach to a taxpayer who has fulfilled the obligation to identify an error, submit an updated declaration and pay tax to the budget does not contribute to the goals of tax administration.

The taxpayer, without any coercion or other external influence, fulfilled the obligation to make additions and changes to the tax return in connection with the discovery of inaccuracies and errors in it. The court recognized this circumstance as a mitigating liability and reduced the amount of the penalty, indicating that failure to take into account these circumstances when deciding on the amount of the fine may help taxpayers evade the above duty in the hope that errors will not be detected by the tax authority.

These conclusions were also reflected in the Decree of the Federal Antimonopoly Service of the Moscow District dated March 14, 2014 N F05-1615/2014 in case N A41-31623/13.

At the same time, as judicial practice confirms, these circumstances can serve as a basis for reducing the amount of tax sanctions, both by themselves and in combination with other circumstances.

At the same time, in the Decree of the Federal Antimonopoly Service of the Moscow District dated February 1, 2013 in case No. A40-88834 / 12-91-481, the court did not recognize the independent identification and correction of errors in the tax return by the taxpayer as mitigating circumstances and therefore did not see grounds for applying the provisions of Articles . 112, 114 of the Tax Code of the Russian Federation to reduce the size of the tax sanction.

In the Ruling of the Seventh Arbitration Court of Appeal dated 04.09.2012 in case No. A27-10192/2012, the court considered that conscientious fulfillment of tax payment obligations cannot be considered as mitigating circumstances, since the obligation to pay taxes on time is established by Article 57 of the Constitution Russian Federation and the norms of the Tax Code of the Russian Federation. The transfer by the taxpayer of the accrued amounts of penalties for the late transfer of VAT in accordance with Article 75 of the Tax Code of the Russian Federation, as well as in accordance with the legal position of the Constitutional Court of the Russian Federation, expressed in Resolution No. which, by virtue of tax legislation, does not relieve the taxpayer from liability for committing a tax offense, is not a mitigating circumstance, does not indicate the repentance of the taxpayer.

Identification by the taxpayer himself of the fact of non-payment of arrears, filing of an adjusted declaration, payment of arrears on taxes and penalties during the period of a tax audit with advance notice to the taxpayer of its conduct, before the inspection makes a decision based on the results of the audit, are not recognized as circumstances mitigating the amount of liability under paragraph 1 of Article 122 of the Tax Code of the Russian Federation (Resolution of the Federal Antimonopoly Service of the North-Western District of January 28, 2011 in case N A05-6938 / 2010).

The Federal Antimonopoly Service of the Moscow District in Resolution No. КА-А40/8428-11 dated 04.08.2011 noted that, having evaluated and examined all the evidence presented in the case file, the lower courts made the correct conclusion about the presence of the following mitigating circumstances for the applicant:
- attraction to tax liability for the first time for the entire period of the company's activities;
- lack of direct intent in committing an offense;
- disproportionate amount of the imposed fine to the consequences of the tax offense, which is confirmed by the fact that the amount of the tax sanction is about 50% of the amount of tax calculated for payment according to the declaration;
- the absence of adverse economic consequences for the budget, since the payment of the tax calculated in the tax return was made within the time limits established by paragraph 3 of Article 204 of the Tax Code of the Russian Federation in full;
- the absence of significant and irreversible harm to the interests of the state.

In the Decree of the Federal Antimonopoly Service of the Far Eastern District dated November 14, 2012 N F03-5181 / 2012, the court reduced the amount of the tax sanction to be collected from the organization and at the same time took into account, as mitigating the taxpayer's liability, the difficult financial situation of the taxpayer and the special social significance of the company acting as a counterparty for the State Defense orders.

The court also took into account that the organization has been conducting its financial and economic activities since 1932, for the entire period of its activities it has never been included in the lists of unscrupulous taxpayers. In spite of financial difficulties, has no arrears in payments to the budget. The payment of a significant amount of the fine, as the court considered, could lead to serious financial consequences: delay in the payment of wages to employees of the organization, failure to fulfill obligations to contractors under government contracts on time.

In Decree N А56-16513/2012 of December 20, 2012, the Federal Antimonopoly Service of the Northwestern District recognized the following circumstances as mitigating the responsibility of the organization: fulfillment of the state order of the Ministry of Defense and reduction of commercial orders, insufficient funds in the organization's accounts on the day of payment of wages, transfer to the budget VAT on the nearest banking day following the day of payment of wages ( wage paid on Friday, the tax was transferred on Monday), and, accordingly, an insignificant period of delay in fulfilling obligations to transfer to the personal income tax budget (3 calendar days in each case).

In the Decree of the Federal Antimonopoly Service of the Central District dated March 28, 2012 N A09-5167 / 2011, the court recognized the following circumstances as mitigating tax liability:
- lack of economic activity and income;
- partial voluntary payment of penalties;
- the absence of harmful consequences of the offense for the budget.

In the Resolutions of the Third Arbitration Court of Appeal of December 29, 2011 N A74-2935 / 2011, of the Fourteenth Arbitration Court of Appeal of February 16, 2012 N A05-11315 / 2011, the court supported the position of the court of first instance, which considered the missed deadline for submitting a tax return by one day to be insignificant and recognized this circumstance mitigating the responsibility of the taxpayer, in connection with which reduced the amount of the fine by half - up to 500 RUB.

The Seventh Arbitration Court of Appeal in Resolution No. 07AP-8142/11 dated October 25, 2011, having examined and assessed the nature and circumstances of the offense committed by the enterprise, taking into account the great socio-economic significance of the enterprise, the focus of activities on ensuring social functions - the provision of services in the field of passenger transportation by land transport , fulfillment of the municipal (state) order for the implementation of public passenger transportation (including the poor and middle strata of the population), the organizational and legal form of the enterprise is a municipal state-owned enterprise, and also taking into account the difficult financial situation of the applicant, which is confirmed by the balance sheet and report on profit and loss, came to the conclusion that it is possible to reduce the amount of penalties by 100 times, which meets the requirements of fairness and proportionality of punishment.

In Resolution No. 18AP-13252/2011 of January 25, 2012 of the Eighteenth Arbitration Court of Appeal, the court drew attention to the fact that the right to establish the existence of mitigating circumstances, as well as to reduce the amount of the fine, was granted both to the tax authority in the proceedings on the case of a tax offense, and to the court in consideration of the application, and the reduction of the amount of liability by the inspection does not exclude the right of the court to also apply extenuating circumstances. After examining and evaluating the nature and circumstances of the offense committed by the organization, namely: it was committed for the first time, the applicant has no intent, the taxpayer is not legally aware and is in a difficult financial situation, the court concluded that it is possible to reduce the amount of penalties.

In Resolution No. 18AP-8904/2011 of September 26, 2011, the Eighteenth Arbitration Court of Appeal reduced the amount of penalties to 5 thousand rubles. based on the fact that the taxpayer committed an offense for the first time, admitted guilt and paid the amount of the debt, as well as due to the difficult financial situation of the organization and its debt obligations to third parties.

The Decrees of the FAS of the West Siberian District of November 20, 2012 N A27-1454 / 2012, the FAS of the Volga-Vyatka District of December 12, 2012 N A39-3790 / 2011 and of November 7, 2012 N A82-10979 / 2011 indicate that the right to attribute those or other factual circumstances, not expressly provided for in Article 112 of the Tax Code of the Russian Federation, to circumstances mitigating the responsibility of the taxpayer, and to establish, based on the results of their assessment, the amount, including the multiplicity, of reducing tax sanctions established by law, is granted to both the court and the tax authority, considering the case.

At the same time, the existence of circumstances not expressly specified in Article 112 of the Tax Code of the Russian Federation must be proved by the taxpayer himself.

At the same time, it should be borne in mind that the study of circumstances, including mitigating the responsibility of the taxpayer, is the duty of the tax authority provided for by the Tax Code of the Russian Federation, and not its right, used at its discretion. A similar position is set out in the Decree of the Federal Antimonopoly Service of the Moscow District dated 03.10.2012 N A40-107621 / 11-99-463.

Therefore, in practice, mitigating circumstances are recognized, for example, the following circumstances:
1. Absence of adverse economic consequences of the offense and material damage caused to the state.

2. Lack of intent to commit a tax offense.

3. Insignificant nature of the offense, payment of tax and the amount of the fine.

4. Organizational and legal form of the taxpayer, its financing from the budget.

5. Insignificance of the admitted delay.

6. Committing an offense for the first time.

7. The disproportion of the sanction to the consequences of the offense committed, the voluntary payment of tax to the budget.

8. Lack of sufficient funds to pay taxes and tax sanctions, lack of profit, debt to counterparties, wage arrears.

9. The difficult financial situation of the taxpayer, the presence of debt obligations to third parties.

10. Errors, failure in the computer network.

At the same time, in each case, the court or the tax authority independently decides on the legality of mitigating liability based on specific circumstances.

Separately, we note that the measures taken to confirm the good faith of his counterparty, which testify to his discretion and caution when choosing a counterparty, can also "help" the taxpayer. These may include:
- receipt by the taxpayer from the counterparty of a copy of the certificate of registration with the tax authority;
- verification of the fact of entering information about the counterparty in the Unified State Register of Legal Entities;
- obtaining a power of attorney or other document authorizing a particular person to sign documents on behalf of the counterparty;
- use of official sources of information characterizing the activities of the counterparty.

These conclusions are supported by the position of the official bodies (see Letters of the Ministry of Finance of Russia dated July 21, 2010 N 03-03-06 / 1/477, dated April 10, 2009 N 03-02-07 / 1-177).

The Plenum of the Supreme Arbitration Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation in their joint Decree No. 41/9 dated June 11, 1999 indicated that, given that paragraph 3 of Article 114 of the Tax Code of the Russian Federation establishes only the minimum limit for reducing the tax sanction, the court, based on the results of assessing the relevant circumstances (for example, the nature of the committed offense, the number of mitigating circumstances, the identity of the taxpayer, his financial situation) has the right to reduce the amount of the penalty and more than twice.

The amount of the fine cannot be reduced to zero, since the appointment by the court of a fine of 0 rubles. 00 kop. in fact, it will be the release of the person brought to tax liability from the application of a tax sanction.

According to the explanation given in paragraph 18 of Resolution N 41/9, the release of the taxpayer and tax agent from liability for committing a tax offense exempts them only from the collection of fines, but not penalties, since the latter is not a measure of tax liability.

Thus, the tax legislation does not contain norms on the possibility of reducing penalties accrued by the tax authority for late payment of tax by the taxpayer in the presence of mitigating circumstances.

A similar position is taken by the Federal Antimonopoly Service of the North Caucasus District in Resolution No. F08-42/08-24A dated February 12, 2008.

Even the absence of a taxpayer's petition for the court to apply mitigating circumstances does not exclude the court's obligation to assess the proportionality of the calculated fine to the severity of the offense committed, to apply other mitigating circumstances even if the tax authority has partially applied the provisions of Article 112 of the Tax Code of the Russian Federation.

This is indicated in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 12.10.2010 N 3299/10.

In paragraphs 2 and 3 of Article 112 of the Tax Code of the Russian Federation, the legislator defined a qualifying sign of repetition, i.e. sole aggravating circumstance.

Non-payment of penalties by a person who has committed a tax offense and in legal order brought to tax liability, or the failure of the tax authority to take measures to enforce the collection of a fine, does not exclude the recognition of the fact that the taxpayer has repeated a similar illegal action.

The Presidium of the Supreme Arbitration Court of the Russian Federation in Resolution No. 1400/10 dated May 25, 2010 concluded that a 100 percent increase in the amount of a fine is permissible only if a person who is held liable, taking into account an aggravating circumstance, committed an offense after being held liable for a similar offence.

A similar position is set out in the Decree of the Federal Antimonopoly Service of the North-Western District of May 17, 2012 N A44-3790/2011.

Consultations and comments of lawyers on Article 112 of the Tax Code of the Russian Federation

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Provides for the possibility of reducing the amount of fines imposed on the basis of the Tax Code of the Russian Federation for committing tax offenses, in the event that mitigating circumstances are established. So, in particular, it is determined that in the presence of at least one mitigating circumstance, the amount of the fine is subject to reduction by at least two times compared to the amount established by the relevant article of Ch. 16 of the Tax Code of the Russian Federation for committing a tax offense.

Circumstances mitigating tax liability are listed in paragraph 1 of Art. 112 of the Tax Code of the Russian Federation. In contrast to the grounds specified in paragraph 1 of Art. 111 of the Tax Code of the Russian Federation (which exclude tax liability), the circumstances provided for in paragraph 1 of Art. 112 of the Tax Code of the Russian Federation, do not completely exclude the occurrence of tax liability, but only reduce the amount of the imposed fine.

As mitigating circumstances, Art. 112 of the Russian Federation, the following are established:

Committing an offense due to a combination of difficult personal or family circumstances;

Commission of an offense under the influence of threat or coercion or due to material, service or other dependence;

The difficult financial situation of an individual held liable for committing a tax offense;

Other circumstances that the tax authority or the court may recognize as mitigating liability.

Thus, the list of mitigating circumstances is not closed. As mitigating circumstances, both the tax authorities and the court may consider such as the presence of dependents (minor children, elderly relatives, disabled people), retirement age, lack of income, significant loan obligations, disproportion of the penalties applied to the severity of the offense and other circumstances .

If there are mitigating circumstances, after receiving the tax audit report, the taxpayer should:

1. Apply to the tax authority that conducted the audit with an application (petition) to reduce the amount of additionally assessed fines, in which to state the grounds on which the amount of tax sanctions can be reduced.

2. The submitted application (petition) must be accompanied by documents (their copies) confirming the presence of mitigating circumstances.

In case of disagreement with the amount of sanctions applied by the tax authority for committing a tax offense, in the event that the amount of the fine was not reduced in the presence of extenuating circumstances, or, in the opinion of the person held liable for tax liability, it was not sufficiently reduced, the taxpayer may appeal the decision to a higher tax authority .

In the complaint, the applicant must also indicate mitigating circumstances in accordance with which the amount of the fine is subject to reduction and attach documents confirming the arguments set forth.

At the same time, taxpayers should take into account that in the presence of mitigating circumstances, only the amount of penalties applied can be reduced, the amount of taxes and penalties on these grounds cannot be reduced.