Criminal cases on tax crimes have their own specifics, determined by industry tax legislation.
In practice, the investigating authorities take as the basis for their conclusions the decisions of the tax authorities, the higher tax authority and the arbitration court (if the taxpayer appealed to the arbitration court against the decisions of the tax authorities on the identification of tax arrears). However, the investigator is not entitled to make decisions of non-judicial bodies as a prejudice, since this does not comply with the provisions of Article 90 of the Code of Criminal Procedure of the Russian Federation (prejudice).
As for the decisions of the judicial authorities - the arbitration court - then, in accordance with Article 90 of the Code of Criminal Procedure of the Russian Federation, these court decisions can be used (applied) in a criminal case only within the competence of the arbitration court, which is established by the Arbitration Procedure Code of the Russian Federation (each court considers only those issues that are within its jurisdiction).
Moreover, if the accused in a criminal case was not a party to arbitration process, then the decision of the arbitration court cannot establish his guilt in the criminal case. This implies the most important consequence - a person who in the future may be held criminally liable for a tax crime cannot participate in the arbitration process when challenging decisions of tax authorities, so that in the future this decision of the arbitration court could not be used as evidence of the guilt of this person in accordance with the procedure application of the provisions of Article 90 of the Criminal Procedure Code of the Russian Federation on prejudice.
At the same time, the circumstances established by the arbitration court in relation to this taxpayer, covering tax legal relations arising from entrepreneurial activity, are accepted by the investigator and subsequently by the court general jurisdictionconsidering this criminal case on a tax crime, without additional verification.
In other words, the fact of non-payment of taxes and the amount of tax arrears established by the tax authorities and confirmed by the arbitration court will be accepted by the investigator as circumstances relevant to the resolution of a criminal case on a tax crime. Accordingly, these circumstances will be used by the investigator as evidence in such a criminal case.
The second important consequence is that it is necessary to be extremely careful when deciding whether there is a prospect when appealing against decisions of tax authorities in arbitration courttaking into account that the decision of the arbitral tribunal that has entered into force will be a prejudice for the preliminary investigation bodies.
Of practical interest is the situation when the head of the taxpaying organization, brought to criminal responsibility, provides the investigator with information about the facts that were not taken into account by the tax authorities or the arbitration court, but which may affect the calculation of taxes payable or the application of the provisions by the investigator. Tax Code RF.
In practice, the investigating authorities appoint a forensic tax examination, the conclusion of which will determine the conclusions of the investigating authorities in relation to the event. tax crime, and in relation to the guilt of the head (and / or chief accountant) of the taxpayer's organization.
We also note that the actions of the person who included in the tax return or other documents submitted tax authorities as mandatory tax reporting documents, inaccurate information by mistake (actual delusion), without the intention to evade paying taxes (or fees), does not constitute a tax crime, the subjective side of which provides for a deliberate form of guilt in the actions of a person prosecuted for committing tax crime.
The presence of direct intent is subject to proof, in connection with which the testimony of the head of the taxpaying organization (and / or the chief accountant) is of paramount importance. The so-called tax planning optimization schemes may contain violations civil lawe.g. as a result of using invalid transactions... In this case, if such actions were aimed at tax evasion, then all such transactions must be declared invalid (fictitious) as a method of tax evasion, and not as actions aimed at obtaining a legitimate financial benefit with the correct use of opportunities provided by tax legislation to minimize tax payments and deductions (for example, benefits for an organization that uses the work of people with disabilities).
Investigator of the SU in the Ivanovsky district of the Rostov region
From Stepanov Nikolai Nikolaevich
123179, Ivanovsky district of Rostov region,
the village of Krivoy Rog, st. Matrosov 38 sq. one
- the legal representative of the victim - a minor
Stepanova Renata Nikolaevich / 07.12.2001 /
Ivanovsky district of Rostov region,
the village of Krivoy Rog, st. Matrosov 38 sq. one
Petition
on additional forensic examination
(in the order of Art. 119-120 of the Code of Criminal Procedure of the Russian Federation)
On March 7, 2010, at about one o'clock in the morning, my son, Renat Nikolayevich Stepanov, was returning from his birthday and was attacked and beaten by Fyodor Anatolyevich Furtov, who lives in the village of Krivorozhsky, about which we immediately reported to the on-duty department of the Ivanovsky District Department of Internal Affairs and we were notified that the district militia officer will investigate this crime. We tried to call a local physician by phone at night to provide first aid to our son, but we could not get through to him, so the doctor examined our son only in the morning and immediately made a decision about his immediate hospitalization. Moreover, due to her health condition, the doctor herself accompanied her son to the Ivanovo CRH.
At about 10.20, the son, after being examined by the doctor on duty, was hospitalized in the surgical department, where he was from March 7 to 17, 2010. The diagnosis was closed craniocerebral injury, concussion, contusion of the soft tissues of the face on the right.
At the hospital, we approached a forensic expert with a request to conduct a forensic medical examination, but she refused, citing her lack of a resolution to order an expert examination.
Since March 18, due to temporary disability due to harm to his health, the son was on outpatient treatment with an appearance for a consultative appointment on March 23, 2010.
March 23, the investigator - district police officer Kosolapov I.A. told me that the materials of the inquiry will be transferred to the prosecutor's office, and then to the magistrate, apparently to attract F.A. Furtov. to criminal liability under Art. 115 of the Criminal Code of the Russian Federation, t. the conclusion of the forensic medical examination, probably, assessed the harm to the health of my son, caused by the illegal actions of gr. Furtova F.A. as mild.
On March 24, the certificate of temporary disability for his son was extended until April 1, 2010 due to complaints of weakness, headache, dizziness. The child cannot go to school for health reasons.
I believe that when determining the severity of the harm to health, the forensic expert took into account only the presence of his son in hospital treatment at the Central District Hospital for the period March 7-17, and the results of a consultative examination by an ophthalmologist, as well as a temporary the son's disability for the period from March 18 to April 1, 2010, i.e. for a period exceeding 21 days, which is a qualifying sign of average harm to health.
Based on the foregoing, I apply for an additional forensic medical examination to determine the severity of the harm to health
The results of the research carried out by experts are drawn up in the form of conclusions. Such conclusions, in addition to the mandatory details (time and place of the examination, grounds, information about the expert organization (expert), etc.), must reflect the results of the expert work: full conclusions on the questions posed to the expert and detailed justification of these conclusions.
Expert opinions are not binding on the courts. However, often a comprehensive consideration of the case and the adoption of an objective decision by the court is impossible without the help of persons with purely special knowledge.
Therefore, if the results of the initial examination in their content at least to some extent indicate the ambiguity (ambiguity) of the conclusions of the experts or the studies were not carried out by them fully enough, as well as if other questions arise on the previously studied circumstances of the case and the elimination of such doubts requires new research, if the presence of serious procedural violations, the court raises the question of the appointment of an additional forensic examination.
Additional expertise is entrusted to the previous or another forensic institution (expert). In any case, this is the choice of the court.
The procedure for filing a petition and the results of its consideration
The reason for the appointment of an additional expert examination can be both the initiative of the court itself and the petition of the persons who are parties to the case. In the latter case, a petition for an additional examination is submitted to the court, the form and content of which is similar to that of the petition for the appointment of the main examination. A sample application for the appointment of an additional expert examination is provided. A petition for an additional examination must contain a tough and irrefutable reasoning about the advisability of conducting additional research.
As such argumentation, a conclusion or opinion of a specialist based on the results of an already conducted examination can be presented. The initiator of such a conclusion is the party that does not agree with the conclusions of the examination. In fact, the opinion of a specialist is a new conclusion of another expert who conducts the same research as the first expert, in the same volume, on the same issues, but comes to different conclusions through refutation and substantiation of those already made. This is strong evidence, which often entails the need for another examination to eliminate contradictions.
The decision by the court of the issue of appointing an additional expert examination shall be formalized by an appropriate determination. In this ruling, the court must indicate the reasons why it considers the conducted research incomplete and indicate additional requirements to the work of experts.
Examples and sample applications can be downloaded from our website.
When the court has appointed a forensic examination and the case file contains an expert opinion, in accordance with Article 87 of the Code of Civil Procedure of the Russian Federation, the parties have the right to submit a request for an additional examination.
Unlike filing a request for a re-examination, an additional examination can be carried out with insufficient clarity or incompleteness (not getting answers to all the questions posed) of the conclusion. An additional examination can be carried out by the same expert (this usually happens), but it can also be entrusted to another expert.
The petition for the appointment of an additional expert examination must be conditioned either by the ambiguity of the conclusion, while at first it is possible to submit a petition to summon an expert to give explanations (which is faster and cheaper than conducting an additional expert examination), or by its incompleteness. In all other cases, it makes sense to file an objection to the examination, a petition for the appointment of a repeated examination or an examination in the appeal.
An example of a request for an additional expert examination
To the Lesnoy District Court of the Tver Region
Applicant: Brezhnev Nikolay Alexandrovich,
address: 171890, p. Forest,
st. Kommunarov, 16, 31
within the framework of case No. 4-134 / 2016
on the elimination of obstacles to the use of property
Appointment application
additional expertise
In the proceedings of the Lesnoy District Court of the Tver Region there is a civil case No. 4-134 / 2016 on the claim filed by I.K. Loginov. on the elimination of obstacles to the use of property. In this case, I am the Defendant.
By the definition of the aforementioned court of May 14, 2016, a comprehensive examination (construction and technical, as well as land management) was appointed within the framework of the case, within the framework of which the issues of damage caused and the impossibility of use by the plaintiff were investigated land plot due to the installation of a roof of my own property of an extension to the house.
The conclusion of the examination of 05/30/2016 established that in order to remove obstacles, I need to rebuild the roof of the extension, turning it 90 degrees, equip a drainage system from the roof with water drainage. This method is the only one proposed by the plaintiff. At the same time, the expert did not provide other options for reconstruction, which could remove obstacles in the use of the property by the plaintiff.
According to the legal position of the Presidium of the RF Armed Forces, the category and nature of the dispute provide that legally significant circumstances in such cases are the establishment of all possible ways to eliminate obstacles. In accordance with the expert opinion voiced in court session of 06/08/2016, to study possible ways to eliminate obstacles, it is necessary to carry out additional measures and inspect the objects of expertise.
I would like to ask you to entrust the additional expertise to the same experts, for permission to raise the question of the availability of other possibilities to eliminate the obstacles declared by the plaintiff and their methods.
Based on the above, guided by art. 87 Code of Civil Procedure of the Russian Federation,
- Appoint an additional examination, for the resolution of which to raise the question of the existence of other possibilities for eliminating the obstacles in the use of property declared by the plaintiff, ways of eliminating such obstacles.
- To entrust the additional expertise to the experts who carried out a comprehensive expertise within the framework of civil case No. 4-134 / 2016.
06/28/2016 Brezhnev N.A.
Grounds for filing a petition for the appointment of an additional expert examination
An additional examination serves the purpose of eliminating ambiguities and incompleteness in the expert's opinion. For the competent preparation of such a petition, it makes sense to familiarize yourself with the types of examinations on civil affairs and applications for examination.
It is very important to exercise the right to submit to the court your list of questions for an expert and to familiarize yourself with the ruling on the appointment of an expert examination.
The court will appoint an additional examination if the deficiencies in the conclusion cannot be filled by questioning an expert and their resolution requires not only the use of special knowledge, but also additional research. If new issues arise that require resolution, taking into account the conclusion available in the case, the likelihood of an additional expert examination is high.
How to draw up and submit to the court a petition for the appointment of an additional expert examination
The court appoints an additional examination either on its own initiative or on the initiative of one of the parties to the civil case. An additional examination should be aimed at establishing the circumstances that are significant and included in the range of evidence in a civil case.
It is preferable to prepare a petition for the appointment of an additional examination in writing, rather than relying on the clerk to fully reflect the applicant's position in the minutes of the court session. In order to prepare a written request in the court session, you can ask for a break, as well as postpone the court proceedings in order to familiarize yourself with the expert's opinion.
The document must contain the reasons, which, in the opinion of the applicant and in accordance with Art. 87 of the Code of Civil Procedure of the Russian Federation, are the basis for an additional examination. It is necessary to convince the court of the need for her appointment in order to make a correct and objective decision on the case.
The court's refusal to satisfy the petition for the appointment of an additional examination may be appealed privately (private complaint), and also used in the preparation of an appeal.
The law does not provide for re-submission of an application for the appointment of an additional expert examination.
