Newsletter. Overview of Changes in Legislation. December 2012 - January 2013
The Court has found that the rule is unconstitutional to the extent where the considerable amount of a minimum fine does not allow ordering a fair and proportionate punishment in all cases. Therefore, in practice the statutory minimum fine might turn from the measure aimed at preventing violation of the law into the instrument of suppression of economic independence and initiative, excessive limitation of free entrepreneurship and the property right. Therefore, the Code of Administrative Offences should be amended.
Before introduction of amendments the amount of fine imposed on a legal entity for the violation in question may be reduced by anti-monopoly authorities or a court on the basis of the Constitutional Court’s viewpoint
Draft Federal Law on Amendment of Certain Legislative Acts of the Russian Federation to the Extent of Counteraction to Illegal Financial Operations, No. 196666-6.
The Draft broadens the grounds for refusal of state registration of legal entities and individual entrepreneurs; establishes liability of persons controlling the debtor, top management and members of the liquidation commission of the debtor whose actions entailed bankruptcy; secures the obligation of a corporate tax payer to receive mail sent by tax authorities to its address recorded in the Consolidated State Register of Legal Entities, which would prevent taxpayers from giving false addresses; grants investigation and search bodies the right of access to information containing a bank secret (upon a court order).
The Draft also establishes criminal liability for illegal importation/exportation across the Customs Union border of money in rubles and (or) foreign currency, as well as traveler’s checks or external or internal securities.
Tax Law. Good Faith of Counterparts
Letter of the RF Federal Tax Service on Consideration of an Application, dated October 17, 2012, No. АS-4-2/17710.
The Letter notifies that the Tax Code does not obligate tax authorities to provide taxpayers, on their request, with information about performance by their counterparts of obligations stipulated by tax law or about any violation by them of tax law. However, a feed back from tax authorities that the counterpart submitted a tax declaration, including a non-zero one, cannot serve as a confirmation of the counterpart’s reliability, because veracity of accounts and reality of the counterpart’s financial and economic operations can be confirmed exclusively after a field tax inspection.
The fact of a breach by the taxpayer’s counterpart of its tax responsibilities is not by itself a proof of the taxpayer’s unjustified tax benefit. Tax benefit may be regarded as unjustified if the tax authority proves that the taxpayer acted without due prudence and caution, and that it should have been aware of the violations committed by the counterpart.
It is also noted that the official Internet site of the FTS contains information about the ways of carrying out financial and economic activity with a high degree of risk, as well as addresses recorded at the time of registration as the place of location of several legal entities (the so-called “mass” registration which, as a rule, is characteristic of “one-day companies”), and the names of legal entities that have disqualified persons in their executive bodies.
Verification of this information may serve as evidence, inter alia, of due prudence.