The tax system of the Russian Federation and the principles of construction

The tax system is a set of currently existing taxes, duties and fees levied by the state in accordance with the Tax Code, as well as a set of norms and rules that determine the powers (changes, cancellation, etc.) and the system of responsibility of the parties involved in tax legal relations . According to the set of taxes, their structure, methods of collection, rates, fiscal powers of different levels of government, tax base, scope, benefits, these systems differ significantly from each other and seem at first glance incomparable. However, a closer examination reveals two main commonalities:

1) constant search for ways to increase the tax revenues of the state;

2) the desire to build a tax system based on generally accepted principles of economic theory.

Principles of organization of the tax system

Currently, the Russian tax system is based on the following principles: the unity of the tax system; mobility; stability; multiple taxes; an exhaustive list of regional and local taxes; single taxation; equality and fairness of taxation.

The principle of the unity of the tax system

The unity of financial policy, including tax policy, and the unity of the tax system are enshrined in a number of articles of the Constitution of the Russian Federation and, above all, in subparagraph “b” of Art. 114, according to which the Government of the Russian Federation ensures the implementation of a unified financial, credit and monetary policy. This provision developed one of the foundations of the constitutional system of Russia, the principle of the unity of the economic space (see Article 8 of the Constitution of the Russian Federation). This means that on the territory of Russia it is not allowed to establish customs borders, fees and any other obstacles to the free movement of goods, works, services and financial resources.

In addition, Article 3 of the Tax Code states that “it is not allowed to establish taxes and fees that violate the common economic space of the Russian Federation and, in particular, directly or indirectly restrict the free movement within the territory of the Russian Federation of goods (works, services) or financial resources, or otherwise restrict or create obstacles to the economic activities of individuals and organizations not prohibited by law”, as well as “taxes and fees that prevent citizens from exercising their constitutional rights are unacceptable”.

The principle of unity of the tax system is also ensured by a unified system of federal tax authorities. The tax authorities in the subjects of the federation are territorial bodies of the federal executive authorities, and not the bodies of these subjects. The Constitution of the Russian Federation also does not allow the establishment of taxes that violate the unity of the economic space of the country, i.e. it is unacceptable to introduce regional and local taxes that restrict the free movement of goods (works, services) and financial resources within a single economic state, and it is also unacceptable to introduce them that allow the formation of the budgets of some territories at the expense of tax revenues of other territories or transfer the payment of taxes to taxpayers of other territories .

Mobility principle

The principle of mobility states that the tax and some tax mechanisms can be quickly changed in the direction of reducing or increasing the tax burden in accordance with the objective needs and capabilities of the state. As the socio-political and economic situation changes, the state should be able to adapt and adequately respond to new political and economic conditions. In addition, the mobility of taxation is manifested in the regular filling of legal gaps in the tax legislation of the country. In most cases, mobility acts as a state countermeasure against the active actions of a part of disobedient taxpayers. Since not all taxes have the same mobility, the tax system must also contain such taxes that, with the growth of needs, could be increased. However, mobility does not at all mean a qualitative reform of the tax system, on the contrary, it is its gradual internal development.

The principle of stability

According to the principle of stability, the tax system should operate for a number of years until the tax reform. At the same time, tax reform should be carried out only in exceptional cases and in a strictly defined manner. In many foreign countries, a rule-making practice has long been established, according to which any changes and additions to tax laws can only come into force from the beginning of a new financial year. It is this rule that should be established in the tax system of the Russian Federation when appropriate changes and additions are made.

This principle is determined not only by the interests of taxpayers. It must be remembered that a change in the tax system will objectively entail a sharp reduction in tax revenues to the budget, and it will take several years to restore the balance. In addition, according to many foreign experts, frequent and unpredictable changes in tax legislation are one of the most serious reasons why they refuse to work in Russia, as this does not allow for an accurate calculation of economic indicators when investing in Russia, which significantly reduces investment rating.

The principle of multiple taxes

This principle includes several aspects, the most important of which is that the tax system of the state should be based on a set of differentiated taxes and objects of taxation. The combination of various taxes and objects of taxation should form a system that would meet the requirement of redistributing the tax burden among taxpayers. Another aspect of this principle is the inadmissibility of a “budget of one tax”, since in the event of an unexpected change in the economic or political situation, the revenue part of the budget may simply not take place.

The plurality of taxes makes it possible to create the prerequisites for a flexible tax policy by the state, to better capture the solvency of taxpayers, to equalize and make the overall tax burden psychologically less noticeable, to reflect the diversity of forms of income, taking into account all aspects of the economic activity of citizens and firms, to influence consumption and accumulation. In addition, the effect of complementarity of taxes follows from the principle of multiplicity, according to which artificial optimization for one tax will invariably lead to an increase in payments for another tax.

The principle of an exhaustive list of regional and local taxes

The single economic space of Russia predetermines the policy of the Russian state for the unification of tax exemptions. This goal is served by the principle of an exhaustive list of regional and local taxes, which can be established by state authorities of the constituent entities of the Russian Federation and local governments. This provision is a manifestation of the state-legal idea of ​​fiscal federalism between federal and regional authorities, as well as self-government bodies. In accordance with the Tax Code, federal taxes and fees are established, modified or abolished by this Code. Taxes and fees of the constituent entities of the Russian Federation, local taxes and fees are established, changed or canceled, respectively, by the laws of the constituent entities of the Russian Federation on taxes and fees and the regulatory legal acts of representative bodies of local self-government on taxes and fees in accordance with this Code.

The principle of one-time taxation

This principle means that one and the same object of taxation may be taxed by one type of tax only once for the period of taxation specified by the Law.

The principle of equality and fairness of taxation

The Tax Code notes that taxes and fees cannot be discriminatory and applied differently based on social, racial, national, religious and other similar criteria. It is not allowed to establish differentiated rates of taxes and fees, tax incentives depending on the form of ownership, citizenship of individuals or the place of origin of capital, with the exception of import customs duties.

"Taxes and taxation", 2007, N 5

This article has been submitted for publication by the Organizing Committee of the III International Scientific Conference "The Legal System and the Challenges of Modernity" (December 4 - 6, 2006, Ufa, Institute of Law of the Bashkir State University).

Under the principles of law, it is customary to understand the fundamental guiding principles and ideas enshrined in the legislation, expressing the essence of the norms of this branch of law and the main directions of state policy in the field of legal regulation of relevant social relations.<1>.

<1>Parygina V.A., Tedeev A.A. Tax law of the Russian Federation. - Rostov n / a: Phoenix, 2002. S. 70.

It is customary to subdivide legal principles into the principles of law proper and principles-ideas that are not yet reflected in legal norms, but are gradually moving into the field of law from the field of legal consciousness.<2>. The Tax Code establishes the basic principles of legislation on taxes and fees in Art. 3. But it cannot be recognized that this list even covers all legal principles proper, not to mention the principles-ideas identified by legal scholars<3>.

<2>Gritsenko V.V. Theory of Russian tax law: modern problems / Ed. N.I. Khimicheva. - Saratov: Publishing House of the State Educational Institution of Higher Professional Education "Saratov State Academy of Law", 2005. P. 54 - 57.
<3>There. pp. 54 - 57.

It is clear that only the principles of law, directly enshrined in legislation, can be of practical importance, since only they have legal force and are provided by the coercive power of the state. Nevertheless, the number of principles of taxation identified in the science of tax law is much larger, and it can be assumed that such an expansion is not always justified.

So, for example, in the Tax Code of the Russian Federation there is no mention of the principle of one-time taxation, which, meanwhile, is presented by some scientists as fundamental<4>.

<4>See, for example: Kosolapov A.I. Taxes and taxation: Textbook. - M.: Publishing and Trade Corporation "Dashkov and Co", 2005. S. 23 - 24; Kashin V.A. Review of fiscal tax policy in the Russian Federation and abroad in 2003. - M.: Publishing house of economic and legal literature, 2004. S. 19; Commentary on the Tax Code of the Russian Federation (Part One) (item-by-article) / Ed. A.N. Kozyrina, A.A. Yalbulganova // ConsultantPlus, 2004; Razgulin S.V. Commentary on the provisions of the first part of the Tax Code of the Russian Federation // ConsultantPlus, 2004; Smirnov D.A. Classification of the principles of tax law: problem statement // Consultant Plus, 2004.

Lost by now its force Art. 6 of the Law of the Russian Federation of December 27, 1991 N 2118-1 "On the Fundamentals of the Tax System" directly established the principle of single taxation, indicating that "the same object can be taxed by one type of tax only once for a tax period specified by law" . At the same time, such a wording did not in any way prevent double taxation as such. After all, the same object of taxation may be subject to not one tax, but several, which is what is happening at the present time.

It should also be noted that the definitions of the object of taxation, proposed both by the Tax Code of the Russian Federation and the Law of the Russian Federation "On the Fundamentals of the Tax System", strictly tie the object of taxation to a specific taxpayer, which can be perceived as a reason to consider the same property, income, profit, etc. various objects of taxation.

One of the norms of Art. 38 of the Tax Code of the Russian Federation, according to which "each tax has an independent object of taxation", which means that two or more different taxes, in principle, cannot have the same object.

Let's look at a few examples. According to paragraph 1 of Art. 270 of the Tax Code of the Russian Federation, when determining the tax base, "expenses in the form of amounts of dividends accrued by the taxpayer and other amounts of profit after tax" are not taken into account. This means that income tax is paid on the amount of accrued dividends. On the other hand, pp. 1 p. 1 art. 208 of the Tax Code of the Russian Federation, among the income from sources in the Russian Federation subject to personal income tax, "dividends and interest received from a Russian organization, as well as interest received from Russian individual entrepreneurs and (or) a foreign organization in connection with the activities its permanent representation in the Russian Federation". Thus, taxes are paid twice on the amounts of accrued dividends: first by the organization, then by its shareholder.

Nevertheless, such a state of affairs would not violate the principle of single taxation, since two different taxes are paid by different taxpayers.

On the other hand, the wording "taxation of one kind" is not entirely clear. It remains unclear whether it is identical to such a formulation as "imposition of the same tax." If we assume that these two formulations are not identical, but taxes of the same type are understood, for example, as income taxes, on the one hand, and property taxes, on the other hand, then the taxation of dividends is a violation of the principle of one-time taxation, even in the form in which it was enshrined in the Law of the Russian Federation "On the Fundamentals of the Tax System".

It would be useful to note that in foreign legislation, for example, in the USA, such a situation exists with respect to the so-called C-corporations and is quite openly recognized as double taxation.<5>.

<5>Raymond S. Schimdgall. Hospitality industry managerial accounting. Lansing, Michigan, Educational Institute of the American Hotel and Motel Association, 1997, p. 603.

It is not worth talking about the obvious prevalence of double taxation and property taxes. The law does not prohibit the simultaneous taxation of the owner of a vehicle with both a transport tax and a tax on the property of organizations or individuals.

Summing up, it is possible to formulate only one proposal: it is time to exclude the principle of one-time taxation from the Russian legal doctrine. It has not found its direct reflection in the legislation, and the timid assumption that, despite this, it is derived from the principles and meaning of Russian tax law, seems unfounded. This principle existed in Russian tax law, but existed for a relatively short time (before July 31, 1998) and in a kind of truncated form. The question of why it continues to be distinguished by some theorists today remains unclear.

E.N. Ivanova

Saratov State University

them. N.G. Chernyshevsky

The principle of legality is a general legal one, having a constitutional and legal character. In its most general form, it is enshrined in the second part of Art. 15 of the Constitution of the Russian Federation, which establishes that public authorities, local self-government bodies, officials, citizens and their associations are obliged to comply with the Constitution of the Russian Federation and laws.

Being a general legal principle, the principle of legality covers all legal institutions and sub-institutions of tax law. Moreover, it manifests itself in two ways: firstly, in the field of lawmaking, it is addressed to the legislator and consists in the requirement of strict observance of general legal and sectoral principles when formulating tax legislation; secondly, in the field of law enforcement, it consists in the exact observance by all participants of tax legal relations of tax legislation.

In tax legal relations, on the one hand, the state represented by tax, customs and other authorized bodies oppose each other, and on the other hand, private individuals (taxpayers, tax agents, banks, their representatives). The requirement of legality is addressed to all parties of the tax legal relationship, that is, universal character. Taxpayers may require officials of tax authorities to comply with tax laws and have the right not to comply with illegal acts and requirements of tax authorities and their officials that do not comply with the Tax Code of the Russian Federation or other federal laws (clause 1, article 21 of the Tax Code of the Russian Federation). In turn, the tax authorities are obliged to exercise control over compliance by taxpayers with the norms of tax legislation, as well as regulatory legal acts adopted in accordance with it (clause 1, article 32 of the Tax Code of the Russian Federation).

According to paragraph 1 of Art. 108 of the Tax Code of the Russian Federation, no one can be held liable for committing a tax offense otherwise than on the grounds and in the manner prescribed by the Tax Code of the Russian Federation. Thus, the requirement of the legitimacy of tax liability includes two components - substantive and procedural: 1) liability for tax offenses occurs only in cases expressly provided for by the Tax Code of the Russian Federation ( legitimacy of the basis of tax liability); 2) responsible

responsibility for tax offenses occurs in strict accordance with the requirements established for this ( legitimacy of the tax process

sa).

knowledge without being specified in the law. At the same time, the Tax Code of the Russian Federation, any other regulatory

legal acts do not have the right to regulate these issues (subclause 6, clause 2, article 1 of the Tax Code of the Russian Federation). In this requirement, there is a significant difference between the institution of tax liability and administrative liability, the regulation of which in accordance with Art. 72 of the Constitution of the Russian Federation is under the joint jurisdiction of the Russian Federation and its subjects; therefore, the establishment of some elements of administrative offenses is possible through the adoption of regional laws. A specific element of tax liability is its codification, that is, the regulation of all issues exclusively within the framework of the Tax Code of the Russian Federation.

An interesting question is the possibility of using the analogy method in the process of bringing to tax liability. Prior to the adoption of part one of the Tax Code of the Russian Federation, tax legislation was characterized by confusion and inconsistency, the predominance of departmental rule-making, a huge number of gaps and the almost complete absence of procedural rules. Under these conditions, the Supreme Arbitration Court of the Russian Federation allowed for the possibility of applying to relations in the field of tax liability by analogy with the rules governing the procedure for imposing administrative penalties. At the same time, the Supreme Arbitration Court of the Russian Federation noted a significant similarity between administrative liability and liability for tax offenses. Thus, the subsidiary application of the norms of administrative legislation in the field of tax liability was allowed1.

The question of using the institute of analogy in various branches of Russian law is solved in different ways. A number of codes (GK, GKK, APC, SK, ZhK) directly provide for the possibility of its application to disputable situations. In Art. 3 of the Criminal Code of the Russian Federation, on the contrary, contains a prohibition of the analogy of the criminal law. Other codes, including the Tax Code of the Russian Federation, do not mention the analogy of the law at all. How to regard such "silence of the law" - as a ban or tacit consent? Is it possible to apply the analogy of the law without special instructions from the legislator? It was the “silence” of the Tax Code of the Russian Federation that allowed the Supreme Arbitration Court of the Russian Federation to conclude that “tax legislation does not allow the application of the norms of the law by analogy”2. Such a position unreasonably impoverishes the legal tools of tax law. We believe that in some cases the analogy can be used to fill in the gaps, primarily of a procedural nature. The question should be raised not about the possibility of applying the analogy of the law to tax legal relations, but about the development of criteria to determine which legal relations it applies to and which not. That is, the main thing is to determine limits to the use of analogy in the area of ​​tax liability.

As already noted, no one can be held liable for committing a tax offense. otherwise, as on the grounds and in the manner prescribed by the Tax Code of the Russian Federation. Thus, the legislator

1 See: Letter of the Supreme Arbitration Court of the Russian Federation dated May 31, 1994 No. S1-7 / OP-370 // Bulletin of the Supreme Arbitration Court of the Russian Federation. - 1994. - No. 8.

2 Clause 7 of the letter of the Supreme Arbitration Court of the Russian Federation dated May 31, 1999 No. 41 “Overview of the practice of application by arbitration courts of legislation governing the features of taxation of banks” // Bulletin of the Supreme Arbitration Court of the Russian Federation. - 1999. - No. 7.

There are two aspects - the substantive and legal grounds for tax liability and the procedural procedure for bringing to responsibility (tax process). The analogy of the law should not apply to the first of them. As for the procedural aspects, we believe that the application of the analogy of the law here is quite acceptable and justified. The fact is that absolute certainty of law it is objectively impossible to achieve, any norms are always only relatively certain character. There are many objective and subjective reasons for the gaps in tax legislation, including in the field of tax liability. Faced with a gap in the process of law enforcement, subjects of law (including courts) cannot evade a decision, referring to the absence of a tax legal norm. Therefore, to solve some auxiliary issues of bringing to tax liability (for example, determining the content of certain legal terms or evaluation categories), the use of the analogy of the law is quite acceptable.

The Constitutional Court of the Russian Federation does not exclude the possibility of using the institution of analogy in the field of legal enforcement. With regard to administrative tort law, he noted: “The gaps that arise in legal regulation in connection with the recognition of the unconstitutionality of the prohibition to appeal court decisions in cases of administrative offenses, pending the establishment by the legislator of the appropriate procedures for their review, can be filled in law enforcement practice on the basis of a procedural analogy” (Resolution of the Constitutional Court RF dated May 28, 1999 No. 9-P). In another case, the Constitutional Court of the Russian Federation indicated that the term, form, procedure for expressing disagreement of a legal entity with the decision of the currency control body to collect a fine for violating currency legislation can be determined by law enforcement agencies on the basis of the analogy of the law, despite the fact that this is not expressly provided for by the current legislation ( Determination of the Constitutional Court of the Russian Federation of January 14, 2000 No. 4-O). We believe that these conclusions of the Constitutional Court of the Russian Federation on process analogy are universal, intersectoral in nature and can be used in the tax process.

Particular attention in formulating the composition of tax offenses is given to their formal certainty. The composition of the tax offense must be fully enshrined in Chapter 15 of the Tax Code of the Russian Federation. We cannot agree with the opinion expressed by D.A. Lipinsky: “The fact that a tax offense and a sanction for committing it are not in a special chapter of the Tax Code devoted to tax offenses is not yet a reason for not recognizing it as such, and the elements of tax offenses must be deduced in a logical way”1. Of course, it is impossible to completely avoid the use of relatively certain norms. The institution of tax liability includes such evaluation categories as “irremovable doubts” (p. 6

1 Lipinsky D.V. Problems of legal responsibility. - St. Petersburg, 2003. - S. 295.

Art. 108 of the Tax Code of the Russian Federation), force majeure circumstances (subclause 1, clause 1, article 111), “severe personal or family circumstances” (subclause 1, clause 1, article 112) and other norms, the exact content of which is determined on the basis of discrete powers participants of tax legal relations. However, evaluation categories here should be kept to a minimum, since their arbitrary interpretation can lead to serious violations of the subjective rights of participants in the tax process.

The most important element of the legitimacy of tax liability is its inevitability. “The punishment of the guilty testifies to the triumph of law and justice in society - everyone who has committed a crime must be aware that his deeds cannot go unpunished. The rule is an axiom: the higher the level of the triumph of law and order in a society, the higher the level of legal consciousness of its members, including criminals who understand, when committing a crime, that they will be treated according to the law and will determine the punishment that they deserve for their act. one .

Each undisclosed tax offense convinces the violator of the weakness of the law and the state and, thus, directly contributes to the commission of illegal actions in the future. The high level of latency in the field of tax offenses, on the contrary, undermines the population's faith in the triumph of the law, in the fact that the state really, and not declaratively, protects the rights and legitimate interests of each person and society as a whole. “One of the most effective deterrents to crime lies not in the cruelty of punishments, but in their inevitability,” C. Beccaria remarked brilliantly. “Confidence in the inevitability of even a moderate punishment always makes a greater impression than fear of another, more cruel, but accompanied by the hope of impunity”2.

Influence procedural violations on the legality of bringing to tax liability is ambiguous. The courts consider that in themselves any procedural violations by the tax authorities of the procedure for bringing to tax liability (for example, failure to notify the taxpayer of the time and place of consideration of his objections to the on-site tax audit report, depriving him of the opportunity to be present at the decision-making and, accordingly, present evidence mitigating liability, etc.) are not unconditional grounds for canceling the contested decisions of the tax authorities, since they are subject to subsequent judicial control where the taxpayer's arguments can be objectively considered. The main argument here is that even if the procedure for pre-trial resolution of a tax dispute is violated, the taxpayer can further exercise his right to judicial protection, subject to the

1 Zubkova V.I. Restoration of social justice is one of the goals of criminal punishment //

Bulletin of Moscow State University. - 2003. - No. 1. - P. 63.

2 Beccaria Ch. About crimes and punishments. - M., 1939. - S. 308.

The idea of ​​a single punishment was known to the ancient Roman lawyers, who formulated the principle: pop bis idem - not twice for one. In the literature, it is also called the principle of the inadmissibility of doubling legal liability. The Constitution of the Russian Federation in Art. 50 formulates this principle rather narrowly - in relation only to the sphere of criminal law: "No one can be repeatedly convicted for the same crime." At the same time, the legal influence of this constitutional principle is not limited to the framework of criminal law and is intersectoral in nature.

See: Bazylev B.T. Legal responsibility. Krasnoyarsk, 1985. S. 64 - 65.
Prior to the adoption of the Tax Code of the Russian Federation, the principle of one-time tax liability was not enshrined in regulations. Its content was determined by judicial practice. Thus, the Constitutional Court of the Russian Federation indicated that the elements of tax offenses enshrined in sub. "a", par. the first sub. "b" paragraph 1 of Art. 13 of the Law of the Russian Federation "On the fundamentals of the tax system in the Russian Federation" and actually duplicated in paragraph 8 of Art. 7 of the Law of the RSFSR "On the State Tax Service of the RSFSR", are formulated vaguely and insufficiently differentiated from each other, although they provide for liability for various elements of tax offenses. The lack of certainty of the legal constructions of the indicated compositions made it possible to apply all the measures provided for by them both for the very concealment or underestimation of income, and simultaneously for each of the actions that caused this offense, which, in fact, were only part of it and did not form an independent offense, namely, for ignorance accounting, violation of the established accounting procedure, counting errors, incorrect paperwork, etc. Thus, the taxpayer was penalized for the same actions repeatedly, contrary to the general principle of fair liability, according to which a person cannot be penalized twice for the same thing. Deviation from this principle, the Constitutional Court of the Russian Federation emphasized, would lead to clearly excessive restrictions that do not correspond to the goals of protecting constitutionally significant interests and, in fact, to the derogation of constitutional rights and freedoms (Resolution of the Constitutional Court of the Russian Federation of July 15, 1999 N 11-P).
With the entry into force of the Tax Code of the Russian Federation, the principle of single punishment received normative consolidation: “No one can be held liable repeatedly for committing the same tax offense” (clause 2, article 108 of the Tax Code of the Russian Federation). In this case, we are talking about bringing to responsibility, and not about imposing a tax sanction. That is, the main thing is the tax process in relation to a specific person in a specific case, regardless of whether this process ended with the imposition of a sanction or not. In any case, it is unacceptable to re-initiate a tax process in the same case, in respect of which there is already a valid court decision or a tax authority.
When a person's actions are qualified as a set of tax offenses, the rule of adding up tax sanctions applies: When two or more tax offenses are committed by one person, tax sanctions are levied for each offense separately without absorption of a less severe sanction by a more severe one (clause 5, article 114 of the Tax Code of the Russian Federation). As you can see, the Tax Code of the Russian Federation does not provide for the possibility of absorption of sanctions, that is, the application of punishment within the limits of only one tax sanction (as a rule, the maximum one). This is a significant difference from administrative responsibility, in relation to which the addition of administrative penalties is a general rule, and absorption is a special one (Article 4.4 of the Code of Administrative Offenses of the Russian Federation).
If a person is held liable for a combination of tax offenses, it is important to determine whether we are really talking about different acts or whether we are facing the same act, expressed in different consequences. A similar situation arose in judicial practice with simultaneous prosecution for a gross violation of the rules for accounting for income and expenses and objects of taxation (Article 120 of the Tax Code of the Russian Federation) and non-payment or incomplete payment of tax amounts (Article 122 of the Tax Code of the Russian Federation). In Ruling No. 6-O of January 18, 2001, the Constitutional Court of the Russian Federation indicated that these compositions were not clearly delineated by the legislator. In particular, the main qualifying feature in both compositions is the understatement of the taxable base, which resulted in non-payment or incomplete payment of tax. As a result, the person who committed the offense under paragraph 1 of Art. 122 of the Tax Code of the Russian Federation, at the same time it can be held liable under paragraphs 1 and 3 of Art. 120 of the Tax Code of the Russian Federation, that is, it will be punished twice for the same illegal act. This unacceptably violates the principle of single punishment.
Tax liability for an act committed by an individual occurs if this act does not contain signs of a crime under criminal law (clause 3, article 108 of the Tax Code of the Russian Federation). Tax offenses and crimes in the field of taxation largely coincide in composition. The same act is qualified as an offense or a crime, depending on the subject composition (an individual, not an organization) and the amount of damage caused to the budget system: a prerequisite for criminal liability for tax evasion is a large or especially large amount of unpaid tax. The qualification of an act as containing elements of a crime is not within the competence of the tax authorities. If, during a tax audit, the facts of offenses involving the commission of tax crimes are revealed, the head of the tax authority makes a decision to hold the taxpayer liable for committing a tax offense. At the same time, the tax authority is obliged, within ten days from the moment the offense is discovered, to send materials to law enforcement agencies to resolve the issue of initiating a criminal case.
An individual exempted from criminal liability on non-rehabilitating grounds is not exempted from tax liability provided for by the Tax Code of the Russian Federation if the act committed by him simultaneously contains signs of a tax offense. Similarly, the fact of the termination of a previously initiated criminal case against officials of the organization means the absence of corpus delicti in their actions (inaction), but does not yet indicate the absence of a tax offense in the actions (inaction) of the organization itself.
Simultaneous application to the violator of tax and administrative liability for the same offense is not allowed, since it directly violates the principle of single punishment. Therefore, the taxpayer for the same offense cannot be simultaneously brought to tax and other liability. If the act identified by the tax authority is committed by the taxpayer within the framework of tax legal relations defined in Art. 2 of the Tax Code of the Russian Federation, the issue of qualifying an act as an offense and its consequences should be resolved only within the framework of tax legislation. The offender cannot be brought to both tax and administrative liability at the same time if tax and administrative liability arises as a result of the commission of the same violation, that is, when the offenses provided for by tax and administrative legislation actually coincide.
Bringing an organization to tax liability does not relieve its officials from administrative, criminal or other liability provided for by law (clause 4, article 108 of the Tax Code of the Russian Federation). In this case, the principle of single punishment is not violated, since different subjects are brought to responsibility - the organization and its officials.
Tax legislation, unlike administrative legislation, does not provide for the possibility of simultaneously imposing a main and additional sanction on the violator - the administrative-legal institution of additional penalties is not known to tax law. At the same time, the collection of penalties from the violator, along with tax sanctions, also forces us to consider this issue more closely. Holding a taxpayer, as well as a tax agent, liable for committing a tax offense does not relieve him of the obligation to pay the due amounts of tax and penalties (clause 5, article 108, clause 2, article 75 of the Tax Code of the Russian Federation). At the same time, the simultaneous imposition of a tax sanction and a penalty fee does not violate the principle of a one-time punishment, since in this case not two penalties are applied, but a sanction and a measure of a restorative nature that ensure the fulfillment of the tax obligation.

One-time taxation is a controversial principle of Russian tax law

The presence in the Russian legislation of the principle of one-time taxation has been discussed in the legal literature for a long time. It should be recognized that the prerequisites for justifying the existence of this principle directly or indirectly follow from the tax legislation. In Art. 6 of the Law of the Russian Federation of December 27, 1991 No. 2118-1 “On the Basics of the Tax System in the Russian Federation”, until January 1, 1999, it was established that the same object can be taxed by one type of tax only once in the taxation period specified by law . Currently, in accordance with paragraph 1 of Art. 38 of the Tax Code of the Russian Federation, each tax has an independent object of taxation, determined in accordance with part two of the Code and taking into account the provisions of Art. 38.

A. V. Demin, proposing to improve the normative regulation of the principles of tax law and inviting to the discussion, considers it necessary to consolidate in the first part of the Tax Code of the Russian Federation Art. 10 6 "Principles of the economic basis of the tax and single taxation", in accordance with paragraph 2 of which the same object of taxation can be taxed only one tax and only once in a certain tax period. An obvious consequence of this approach is that the object of taxation of one tax cannot coincide with the object of taxation of any other tax.

Obviously, the key point is the definition of the object of taxation, since it is the object that can be taxed in general and should be taxed once in particular. In accordance with the normative definition given in paragraph 1 of Art. 38

The Tax Code of the Russian Federation, the object of taxation is the sale of goods (works, services), property, profit, income, expense or other circumstance that has a cost, quantitative or physical characteristic, with the presence of which the legislation on taxes and fees connects the taxpayer with the obligation to pay tax.

The definitions proposed by S. G. Pepelyaev should be recognized as quite well-established in Russian science: the object of taxation is those legal facts (actions, events, states) that determine the obligation of the subject to pay tax (completion of a turnover for the sale of goods (works, services); import goods to the territory of Russia, possession of property, transactions for the sale of securities, inheritance, income, etc.). The term "subject of taxation" refers to the actual (not legal) signs that justify the collection of the relevant tax. For example, the object of the land tax is the right of ownership to the land plot, and not the land plot itself (it is the subject of taxation). The land plot - the subject of the material world - does not give rise to any tax consequences. These consequences generate a certain state of the subject in relation to the subject of taxation, in this case - property. The need to clearly separate the concepts of "object of taxation" and "subject of taxation" is also caused by the fact that there is a need to isolate, among other similar objects of the material world, exactly the one with which the legislator associates tax consequences.

There is reason to believe that if we perceive the object of taxation as a legal fact or consider it in strict accordance with the normative definition, then the existence of the principle of one-time taxation (as well as the independence of the tax object) in Russian tax law is debatable.

If by single taxation we mean that jus nonpatitur ut idem bis solvatur- the law does not allow the same thing to be paid twice 1 , then it should be assumed that such a provision is so trivial from a modern point of view that it does not need special justification among the principles of tax law. It is obvious that the requirement for multiple payment of a certain national tax to the same public entity based on the results of specific taxable actions or states is unacceptable: a single payment terminates the legal relationship to pay the tax.

The presence of international treaties on the avoidance of double taxation allows us to conclude that the requirement for multiple payment of taxes of the same type (income, property), established in the contracting states in connection with the presence of a particular taxpayer of a certain object of taxation at a given time, is only undesirable, but not excluded. Russia's absence of such an agreement with a particular state obviously does not allow one to argue that the claims of the Russian tax authorities against a taxpayer based on national law can be ignored only on the grounds that the tax from the relevant object has already been paid in another state. If the one-time taxation really existed, and even in the rank of a principle derived from the Constitution of the Russian Federation, then the payment of tax on a certain object in a foreign state would in any case mean that it would be impossible to demand the payment of a similar tax (taxes) in Russia.

In the textbook edited by A. V. Bryzgalin, when considering the one-time taxation, the following position is given: this principle does not prohibit the legislator from applying the same object of taxation for different tax payments. So, the proceeds from the sale of products (works, services) are subject to taxation for a number of taxes: VAT, tax on road users, fees for using the name "Russia", etc. However, due to the fact that all these taxes are recognized as independent payments , the principle of singleness is not violated.

In some foreign countries, on the contrary, the principle of multiple taxation operates, that is, the taxation of the same object several times with one or different taxes. For example, in the United States, citizens pay federal, state, and local income taxes. Personal income tax (other than federal income tax) is applied in 40 states, local income tax - in 11 states. Most indirect taxes (excises on tobacco, gasoline, alcohol) are levied by both central and local governments. Sales taxes are levied by both states and local governments.

The presence in Russia of taxes with identical (in whole or in part) objects of taxation is an objective reality.

For example, in accordance with paragraph 1 of Art. 146 of the Tax Code of the Russian Federation, the sale of goods (works, services) on the territory of the Russian Federation is recognized as an object of VAT. In accordance with paragraph 1 of Art. 182 of the Tax Code of the Russian Federation, the object of excise taxation is the sale on the territory of the Russian Federation by persons of excisable goods produced by them. Accordingly, a person who sells excisable goods produced by him in the territory of Russia is generally obliged to pay both VAT and excise - the difference will consist only in the method of calculation and the amount of taxes.

Another example: in most cases, the sale of goods (works, services) by an organization will entail the emergence of obligations both for the payment of VAT and for the payment of corporate income tax. In the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of November 8, 2011 No. 15726/10, it is noted that the moment with which the Tax Code of the Russian Federation connects the occurrence of an object of taxation when calculating income tax and VAT is determined as the norms of the General Part of the Tax Code of the Russian Federation - Art. 39, and the provisions of Ch. 21 and 25 of the Tax Code of the Russian Federation, from the content of which it follows that for the sale of real estate objects, the transfer of ownership of objects is recognized as such a moment when determining the income (tax base) by the taxpayer.

During the existence of the UST in paragraph 2 of Art. 236 of the Tax Code of the Russian Federation provided that the object of taxation for individual entrepreneurs, lawyers, notaries engaged in private practice, are recognized income from entrepreneurial or other professional activities, minus the costs associated with their extraction. At the same time, income was and remains subject to personal income tax in accordance with Art. 209 of the Tax Code of the Russian Federation, and self-employed individuals have the right to reduce their income by the amount of professional tax deductions (Article 221 of the Tax Code of the Russian Federation). Based on the decision of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 16, 2009 No. 1660/09, in the situation under consideration, the tax base for personal income tax and unified social tax is determined in a similar way.

At the same time, it is obvious that if the base of two taxes is determined similarly, then the object of taxation is determined similarly. The fact that the term “the moment of determining the tax base” periodically used by the legislator actually represents the moment of determining the object of taxation is confirmed in the work of F. A. Gudkov. In his opinion, almost all chapters of the Tax Code of the Russian Federation contain rules on the moment at which the taxpayer is obliged to determine the tax base. In fact, these norms mean a redefinition of the circumstances with which the recognition of the tax object is associated. The economic and legal logic of this or that tax is easily modified by the legislator for fiscal tasks.

If we proceed from a broad understanding of taxes and consider “salary” insurance premiums as such, then paragraph 2 of Art. 10 of the Federal Law of December 15, 2001 No. 167-FZ “On Compulsory Pension Insurance in the Russian Federation” (as amended in force before January 1, 2010): the object of taxation of insurance premiums and the basis for calculating insurance premiums are recognized as the object of taxation and tax the base of the unified social tax established by Ch. 24 "Unified social tax" of the Tax Code of the Russian Federation with the features provided for in paragraph 3 of Art. 10. In other words, "all masks are off."

The principle of single taxation is periodically mentioned in acts of the Supreme Arbitration Court of the Russian Federation. In the decisions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 21, 2011 No. 1 /11, dated June 28, 2011 No. 18190/10, the Court concluded that the recovery by the arbitration court from the taxpayer of the amounts of unified social tax, excluding paid insurance premiums for compulsory pension insurance, regardless of the presence the taxpayer's obligation to pay them entails a violation of the principle of single taxation. The same approach takes place in the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of January 18, 2011 No. 11927/10: the collection by the Pension Fund of the Russian Federation of insurance premiums for compulsory pension insurance, excluding the UST, collected by the tax authority extrajudicially in the form of the difference between the amounts of calculated and paid insurance contributions, entails a violation of the principle of single taxation.

However, such acts of the Supreme Arbitration Court of the Russian Federation could well be motivated by the inconsistency of a different approach of the Court with the requirements of fairness and the norms of the Tax Code of the Russian Federation (legislation on insurance premiums).

The issue of one-time taxation can also be considered through an analysis of the legal positions of the Constitutional Court of the Russian Federation. In particular, despite the fact that in the acts of the Court there is no direct recognition of the existence of the principle of single taxation, the argument about the independence of the object of taxation for each tax was used to substantiate a number of judicial acts.

Thus, in the definition of the Constitutional Court of the Russian Federation of July 6, 2000 No. 161-0, the possibility of a “parallel” tax collection from vehicle owners (calculated based on the working volume of a passenger car engine in cubic centimeters) and a tax on certain types of vehicles (calculated according to vehicles based on engine power). The court came to the conclusion that these taxes, by their legal and economic nature, are independent taxes, differing not only in the object of taxation and the tax base, but also in other essential elements.

A similar approach is reproduced, for example, in the definition of the Constitutional Court of the Russian Federation of December 14, 2004 No. 451-0, based on which the property tax of organizations (calculated from the residual value of property, including a car) and transport tax (calculated by the power of a car engine) have independent objects of taxation and, accordingly, tax bases established taking into account a differentiated approach to various characteristics of a vehicle: for property tax of organizations they are determined by value terms, and for transport tax - by physical properties that determine the appropriate level of impact on the state of public roads.

However, the differences that the Constitutional Court of the Russian Federation saw in the objects of taxation by the named property taxes could not, in our opinion, be the basis for the conclusion about the independence of their objects. If we consider the object of tax as a legal fact in the activities of the taxpayer, then in property taxes, the state of possession on a certain right of taxable property should be considered as such. The court actually saw a difference in the scale of taxes (with a single object - the legal fact of owning a car) and made a conclusion on this basis about the difference in the objects of taxes.

The same approach will take place if we use the normative definition of the object of taxation, given in paragraph 1 of Art. 38 of the Tax Code of the Russian Federation. The specification of taxable types of property is carried out, for example, in Art. 358 and 374 of the Tax Code of the Russian Federation (in relation to the transport tax and corporate property tax, this will be a car).

If individual property taxes are perfectly legally calculated on the basis of different characteristics of the same property, then is there any value at all in proclaiming the principle of a one-time taxation (independence of the tax object)?

In the definition of the Constitutional Court of the Russian Federation dated April 2, 2009 No. 478-0-0, the possibility of imposing personal income tax and unified social tax on the income of an entrepreneur from the gambling business, which is also taxed on the gambling business, was considered.

The legal position set out in this judicial act seems to be very ambiguous. Initially, the Court recognized that, formally, for an individual entrepreneur who does not make payments to individuals, the objects of taxation and the bases of personal income tax and UST are the same. The purpose of the UST is to form the financial basis for social insurance, its amount is calculated and paid to the federal budget and, in parts determined by law, to each off-budget fund. As for personal income tax, which directly serves the purposes of financial support for the activities of the state, it has, accordingly, a different social, legal and economic purpose. The provisions of Art. 366

and 367 of the Tax Code of the Russian Federation allow us to conclude that the tax on the gambling business also has an independent, different from others, object of taxation - a gaming table, a slot machine, a totalizator cash desk, a bookmaker's cash desk, and a clearly defined tax base that cannot coincide with any base Personal income tax, nor with the UST base, since this tax is not levied on the taxpayer's income from gambling, but on his property.

The judicial act, on the one hand, recognizes the identity of the objects of taxation of personal income tax and unified social tax, on the other hand, no conclusions about the violation of the principle of independence of the object of taxation are not seen, since taxes have different social, legal and economic purposes. In addition, it is very doubtful to qualify the gambling business tax as a property tax - this is one of the typical taxes on presumed income (of the same legal nature as UTII and the patent taxation system, calculated based on the external characteristics of the taxable activity). But the qualification of the gambling business tax in the judicial act under consideration actually made it possible not to compare it with personal income tax and UST at all.

Thus, according to the logic of the Constitutional Court of the Russian Federation, at least it can be argued that the imposition of different income taxes on the same object (income) is permissible if the taxes have different social, legal and economic purposes. But what then is the value of the principle of one-time taxation (independence of the tax object)?

The following position is not excluded: the object of taxation is an economic category, and it is in this sense that the principle under consideration is formulated. From this point of view, the approach is absolutely fair, according to which economists and lawyers, using legal terms, should invest in them the same meaning.

The presence in the Russian tax law of the principle of one-time taxation, as well as the principle of independence of the object of taxation for each tax, seems doubtful. Attempts to substantiate these principles, as well as the relevant rules of law, disorient law enforcement officers more than provide taxpayers with any rights (guarantees). The federal legislator himself has never complied with paragraph 1 of Art. 38 of the Tax Code of the Russian Federation and easily allowed himself and allows himself to impose different taxes on the same objects (objects).

See: Gudkov F. L. Promissory note. The order of use and features of taxation. M., 2010. S. 148.

See: Gadzhiev G. A., Barenboim P. D., Lafitsky V. I. and others. Constitutional economics / ed. ed. G. A. Gadzhiev. M., 2010. S. 15.