Contemporary Problems of Social Work
Actual problems of forced execution of tax obligations in the Russian Federation
Автор/Author: Soloviev E.S, Shahnazaryan T.G
1. Human Resource A. N. Tax law of foreign countries: theory and practice / A. N. Human Resource – M., 1993. – p.18.
2. Tax code of the Russian Federation (part one) from July 31, 1996 (with amendments. and supplementary) // Sz the Russian Federation. – 1998. – N 31. – Article. 3824.
3. Reshetnikova I. C. enforcement proceedings abroad // Law and Economics. – 2001. – N 3. – p.31.
4. Arkov centuries the Major world system of compulsory execution of // the Problematic issues of civil and arbitration proceedings / Ed. by L. F. Lesnicki, M. A. Rozhkova / centuries arkov. – M., 2008. – p.183.
5. I. Reshetnikov Century, Arkov Centuries Civil law and civil process in modern Russia / I. C. Reshetnikov, V. C. arkov. – M., 1999. – p.105.
6. Adel A. the System of execution of court decisions in Germany // Problems of enforcement proceedings: Sat. senior / Resp. for the production of C. P. Grishin / A. Zadel. – N. Novgorod, 2000. – Vol. 2. – p.77.
7. The code of laws of Russian Empire. – SPb., 1912. – T. XVI. – 1 o’clock. – p.212.
8. Legal regulation of taxation in the Russian Federation: the lecture Notes for the first part of the Tax code of the Russian Federation / Under the editorship of A. N. Kozyrin // ATP “consultant plus”.
9. Financial and economic analysis of the tourism industry enterprise: studies. the manual /O.V. Kaurova, A.N. Maloletko, E.N. Podsevalova. М.: KNORUS , 2011. 216 p.
10. Kaurova O.V., Maloletko A.N., Miturnikova L.A. Taxes and taxation: the taxation system in the tourism industry: textbook /М.: KNORUS, 2011.
11. Kaurova O.V., Maloletko A.N. Shadow costs of collective accommodation facilities//journal of Russian entrepreneurship, 2010. № 3. -pp. 154-161.
12. Kaurova O.V., Maloletko A.N. The behavior of the shadow costs of collective accommodation// Economic science, 2010. № 65. -pp. 118-122.
13. Maloletko A.N. Monitoring and auditing: proc. allowance. -М.: KNORUS, 2006. – pp. 93-97.
Taxes play an important role in the functioning and development of any state. Rightly pointed out that "...special importance for the state redistributive mechanism and the place that take the taxes, leads to the conclusion that the tax is a necessary condition for the existence of the state" .
In accordance with h 1 item 8 of the Tax code of the Russian Federation (hereinafter - the RF tax code) tax is defined as mandatory, individually grant payment, collected from organizations and individuals in the form of alienation belonging to them by right of ownership, economic jurisdiction or operative management of funds for purposes of funding the state and (or) municipal formations .
The obligation to pay taxes and fees rests with each individual or organization who carry out their activity on the territory of the state. Therefore, the tax obligation is fixed at a constitutional level. "So, the Declaration of the rights of man and citizen (part of modern constitutional system of France) was devoted to this question, two of the 17 articles, by setting the duty of the citizens to exercise "General fees" for the maintenance of the armed forces and governance costs (item 13). Recently in constitutional practice began to meet attempts to explain the binding nature of tax exemptions. "Property entails obligations. The use shall also serve the common good" - we read in the basic Law of the Federal Republic of Germany (p. 2 tbsp. 14)" . According to Art. 57 of the Constitution of the Russian Federation, everyone shall be obliged to pay legally established taxes and fees.
Enforcement of the obligation to pay taxes and levies in the Russian Federation is the Federal tax service of the Russian Federation (hereinafter - the Federal tax service of Russia) and the Federal bailiff service of the Russian Federation (hereinafter - the Federal bailiff service of Russia).
One of the most significant issues enforcement is excessive judicial police officer-executor. Furthermore, the FTS of Russia shall submit to the court a thousand claims for recovery of tax debt component of several rubles or a few pennies. The penalty for such acts should be implemented administratively by the accrual of additional interest or imposition of a fine, and when the amount reaches a predetermined minimum, the Executive document can be transmitted to enforce the Federal bailiff service of Russia.
The law on enforcement proceedings also shares the procedure for compulsory execution against the debtor-organization and the debtor-citizen. Recovery of tax out of the assets of the taxpayer (tax agent) - organization shall be effected by decision of the head (Deputy head) of the tax authority through within three days from the moment of the passing of this act of the relevant resolutions of the judicial bailiff for execution in the order stipulated by the Federal law "On enforcement proceedings", taking into account the peculiarities stipulated by Art. 46 of the tax code. In this case, as the judicial practice, the imposition of such decision must be preceded by a mandatory direction to the debtor of the requirement to pay tax, in the absence of payment it is decided to collect arrears at the expense of funds of the taxpayer, and only if no execution may be levied on property of the taxpayer.
When carrying out enforcement actions, the measures of compulsory execution, the bailiff must consider the sequence of repossession of property of the debtor organization.
First of all exaction on movable property of the debtor organization not directly involved in the production of goods, performance of works or provision of services, including securities (except for securities constituting investment reserves investment Fund), the subject of design offices, finished products (goods), precious metals and precious stones, products, and scrap of such products. In the second turn - on property rights, not directly used in the production of goods, performance of works or provision of services. In a third of all real property not directly involved in the production of goods, performance of works or provision of services. In the fourth part directly used in the production of goods, performance of works or provision of services, property rights and participating in the production of goods property: real estate production facilities, raw materials, machines, equipment and other fixed assets, including securities constituting investment reserves investment Fund.
Here arises the problem of the so-called property of immunity debtor-organization, i.e., property that cannot be seized under the Executive production. The law "On enforcement proceedings" (art 95) refers to the property of the fourth stage, the foreclosure of which can lead to the liquidation of the debtor organization. This provision is in conflict with p. 4 h 5 tbsp. 47 of the tax code, giving the opportunity to foreclose on raw materials intended for direct participation in the production, as well as machines, equipment, buildings, structures and other fixed assets. However, in practice, the implementation of forced execution of tax obligations of judicial bailiffs shall be guided by the Law "On enforcement proceedings" and not the tax code.
Levy of execution on property of the taxpayer - physical person shall be in accordance with the Law "On enforcement proceedings", subject to the provisions of Art. 446 of the Civil procedure code of the Russian Federation (hereinafter - the civil code of the RF). With the collection of taxes (fees) and penalties due to the property of the taxpayer-citizen should be borne in mind that the penalty may not be levied on goods intended for everyday personal use of the individual or members of his family.
Article 101 of the Law "On enforcement proceedings" is also a list of the income of the debtor-citizen, which is forbidden to foreclose.
The law on Executive procedure establishes the possibility of applying to the taxpayer-debtor of a number of compulsory measures. However, their use does not always lead to the real fulfillment of tax obligations. Therefore, some researchers propose to introduce additional measures to the debtor [3, 4].
U.S. citizen, did not fulfill the obligation to pay taxes on the basis of the decision of the court may be detained for concealing his property or reluctance to disclose information about him. Such a sanction different from criminal punishment for several moments. There is no defined term of imprisonment. This means that the person subjected to such enforcement, will be released immediately if you agree to comply with the court order . The arrest of the debtor provides and German law . In pre-revolutionary Russia also had measures of personal enforcement obligations. The debtor could be limited to the right movement. Chapter 8 of the Charter of civil procedure provides for the possibility of stealing his release on own recognizance, and, on the basis of a judicial decision, the arrest of the debtor . The introduction of such measures to the debtor in modern Russia, on the one hand, must have stimulated him to the performance of its obligations, including payment of taxes, on the other - can lead to greater congestion of prisons and detention houses. Therefore, the conclusion of unfair taxpayer in custody until the obligations shall become truly a measure of last resort, used only when it is proved the existence of his property and his willful concealment brought only in the courts.
Currently, there is a practice of limiting the rights of debtors to travel outside the Russian Federation. This measure provides only for debtors - physical violence. However, the law provides as a debtor and a legal entity, often the execution debtor-organization tax obligation depends on the responsible official parties. Therefore it is expedient to amend the Law "On enforcement proceedings" and to provide a limitation on travel outside Russia officials of the organizations responsible for the execution of the legal entity of the obligation to pay taxes.
The tax obligation is an implementation of the constitutional installed measures proper conduct of the taxpayer to pay legally established taxes and fees . A breach of this duty is detrimental not only to the state but also society as a whole, because the power is limited in the possibilities of the implementation of domestic and foreign policy. Injure the interests of a large number of citizens who receive livelihood at the expense of the budget of the Russian Federation. While the ineffectiveness of enforcement of tax obligations encourages unscrupulous taxpayers, which leads to an increase of arrears of taxes and levies.
For failure to fulfill tax obligations has legal responsibility. Penalties for violations of legislation on taxes and levies are for the most part property (fines are). The application of such measures leads to the replenishment of the budgets of the respective levels. At the same time, the state should avoid the abuse of his position and transformation of penalties for violations of legislation on taxes and fees only in fiscal instrument used solely for the purpose of filling the Treasury . However, it is the efficiency of the use of state coercive measures and legal liability for dishonest taxpayers depends largely on how faithfully the company will fulfill the tax obligation.