Evasion from payment of customs duties levied from an organization or an individual - Commentary to the Criminal Code of the Russian Federation

Evasion from payment of customs duties levied from an organization or an individual

(as amended by Federal Law No. 92-FZ of June 25, 1998)

1. Evasion from payment of customs payments levied from the organization

or a natural person committed on a large scale -

is punishable by a fine in the amount of one hundred thousand to five hundred thousand rubles or in the amount of the wage or other income of the convicted person for a period of one to three years, or by compulsory labor for up to four hundred and eighty hours, or by forced labor for a period of up to two years, or imprisonment for the same period (

)

2. The same act committed:

a) by a group of persons by prior agreement;

b) has expired. - Federal Law No. 162-FZ of December 8, 2003;

c) has expired. - Federal Law of 08.12.2003 No. 162-ФЗ ;

d) on an especially large scale, -

is punishable by a fine in the amount of three hundred thousand to five hundred thousand rubles or in the amount of the wage or other income of the convicted person for a period of two to three years, or by forced labor for a period of up to five years, with deprivation of the right to hold certain positions or engage in defined by activity for a period of up to three years or without it, or by imprisonment for up to five years with deprivation of the right to hold certain positions or engage in certain activities for up to three years or without it (in the Federal on the law of 07.12.2011 № 420-FZ).

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3. Acts stipulated by parts one or two of this article, committed:

a) an official using his/her official position

b) with the use of violence against a person exercising customs or border control -

shall be punished by imprisonment for a term of five to ten years, with a fine of up to one million rubles or in the amount of the wage or other income of the convicted person for a period of up to five years or without it and with restraint of liberty for a term of up to one and a half years or without it

(part three was introduced by Federal Law No. 420-FZ of December 7, 2011).

4. Acts stipulated by parts two or three of this article, committed by an organized group, -

shall be punishable by deprivation of liberty for a term of seven to twelve years, with a fine of up to one million rubles or in the amount of the wage or other income of the convicted person for a period of up to five years or without it and with restraint of liberty for up to two years or without it (part four was introduced by Federal Law No. 420-FZ of December 7, 2011).

Note. Evasion from customs payments is recognized as being committed on a large scale if the amount of unpaid customs payments for goods moved across the customs border of the Customs Union within the EurAsEC, including one or several commodity consignments, exceeds one million rubles, and in an especially large amount - three million rubles (note in the edition of Federal Law No. 134-FZ of June 28, 2013).

1. Types of customs payments are established in art. 70 TC TC. The concepts of each of the types of payments are disclosed both in the TC TC and in the TC, in particular, in Ch. 21 and 22 of the Tax Code, sect. 2 TC TC. Here the grounds for payment, terms, payers, payment order are determined. In particular, in Art. 80 and 81 TC TC is indicated for the appearance and termination of the duty to pay customs duties and taxes (Value Added Tax (VAT), excises), there are cases when customs duties and taxes are not paid.

2. Evasion from payment of customs payments consists in non-fulfillment of the obligations established by the legislation on payment of these payments, i.е. in legal inaction.

3. In theory and in practice, the objective side of the crime sometimes erroneously includes also the actions consisting in the declaration in the customs declaration and other documents necessary for customs purposes, inaccurate information about the customs regime, customs value, the country of origin of the goods, etc. This understanding of evasion reproduces the explanations of the Plenum of the US Armed Forces regarding the content of tax evasion. However, evasion from payment of mandatory payments in art. 198 and 199 of the Criminal Code is understood by the legislator not as in the commented article. In & quot; tax & quot; articles are liable for evasion, committed by means of certain actions or additional, i.e. which took place apart from the actual failure to fulfill the duty of inaction (failure to submit a declaration and other documents). There are no such reservations in the commented article.

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4. The act committed by the article is finished from the moment of the expiry of the period until the expiry of which the person was obliged to pay customs payments.

5. If the deception of the customs authorities is not aimed at non-payment of payments, but to mislead them with the aim of returning allegedly legally paid payments, then the deed forms the composition of fraud (Article 159 of the Criminal Code).

6. Evasion from payment of customs payments is criminal, only if this act is committed in a large amount, which is defined in Note, to the article being commented. Such a size can be formed due to non-payment of one or several types of payments. In the latter case, the summation of unpaid payments is possible only when all the acts of non-fulfillment of the respective obligation were covered by a single intent and thus formed the continuing crime. See the Instruction on the procedure for filling out a declaration for goods, the decision of the Commission of the Customs Union of 20.05.2010 № 257 (as amended on 03.07.2013).

7. The subjective side is a direct intent. When a person who knowingly does not perform the corresponding duty, does not know exactly in what exact size it will be able to evade payment of customs payments, the deed is recognized as committed with direct non-specific intent. In this case, the act is qualified depending on the consequences, and therefore can be recognized and unassailable, if, for example, the amount of unpaid payments did not exceed 1 million rubles. However, if it is established that the intent of the person was aimed at evasion on a large scale, and in fact it managed to evade the amount of the lesser amount, the act qualifies as an attempt to evade payment of customs payments on a large scale (Part 3, Article 30, Part 1 commented articles).

8. The subject of a crime is a person who is under an obligation to pay customs duties. According to Art. 79 TC TC the person responsible for payment of customs duties and taxes, is the declarant. The concept of the declarant is contained in Cl. 4 TC TC, as well as the concept of a customs representative. If the declaration is made by the customs representative, then he is responsible for the payment of customs duties and taxes. The circle of persons responsible for payment of customs duties is determined depending on the type of collection (Article 79 TC TC). *

9. On the concept of committing a crime by a group of persons by prior conspiracy , see the comment, to art. 35. On the rules of qualification for these signs of crimes, the subject of which is a special one, see the comment, to art. 174.

10. According to Notes, the evasion from payment of customs payments is recognized as being committed on an especially large scale if the amount of unpaid customs payments for goods moved across the customs border of the Customs Union within the framework of the Eurasian Economic Community , including in one or several consignments, exceeds 3 million rubles.

11. The a & quot; a & quot; Part 3 of the commented article, the sign of the commission of a crime by an official using his official position is disclosed first of all by addressing the concept of an official (Note, to Article 285 of the Criminal Code). Since the composition of the evasion from payment of customs payments can only be performed by an special entity : an individual who is entrusted with the relevant duty, or an authorized employee of a legal entity, also obliged to fulfill the obligation to pay customs fees, then the sign of the use of official position may be contained in the act of an official named in Art. 285 of the Criminal Code of the bodies or institutions that are legal entities entrusted with the duty to pay customs duties. At the same time, a crime can be committed as part of an organized group, which may include other officials, including officials of bodies that carry out customs or border control; what they do will be qualified as co-ownership, i.e. without reference to Art. 33 of the Criminal Code. The use by officials of their official position in the commission of a crime within an organized group requires the imputation of the said attribute not only by these persons but also to all members of the group if these circumstances are covered by their intent, since this sign characterizes the increased social danger of the actions of each member of the group.

The foreseen item of the & quot; b & quot; h. 3 of the article being commented, the sign of the commission of a crime with the use of violence to a person exercising customs or border control may be imputed only if the persons in question perform their duties, exercise rights that relate specifically to controlling functions and act accordingly. The use of violence in response, for example, to an unlawful demand on the part of these individuals, can not be regarded as a sign of the act under discussion, but contain signs of a crime against the person. On persons exercising customs or border control, on their authority, see art. 95 and other TC TC, art. 11 of the Law on the State Border, as well as the relevant by-laws - Government Decision No. 50 of 02.02.2005 "On the Procedure for the Use of Means and Methods of Control in Passing Persons, Vehicles, Cargoes, Goods and Animals across the State Border of the Russian Federation"; (as amended on 04/09/2012), No. 872 dated November 20, 2008, "On Approval of the Rules for the Control of Passages of Persons, Vehicles, Cargoes, Goods and Animals across the State Border of the Russian Federation"; (as amended on 04.09.2012), etc. On the concept of the use of violence, see the comment, to art. 178.

12. On the notion of an organized group , see the comment, to art. 35. An organized group may include persons who do not meet the criteria of a special subject. In this case, the qualification of their actions under Art. 33 UK is not required.

13. If an official of customs authorities facilitated the commission of the crime under discussion, not being his co-executor as part of an organized group, his actions should be qualified as complicity in the commission of the crime provided for in the article under review, in conjunction with articles on responsibility for crimes against public service and service in bodies local government (Article 285 or 286 of the Criminal Code).

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