Marginal amounts for 2015 underpaid which may give rise to criminal liability for tax evasion (Article 212 of the Criminal Code of Ukraine) – betrayed hopes

02 September, 2015 Newsletters

1.

Marginal amounts for underpaid which may give rise to criminal responsibility for tax evasion (Article 212 of the Criminal Code of Ukraine) were actually recognized in relation to “tax-free minimum incomes”.

2.

In 2014 it still gave hopes for double increasing of marginal limits for 2015 in the absolute indices (amounts in hryvnias), taking into account the following:

The notion of the “tax-free minimum incomes” is disclosed in the Tax Code of Ukraine: para. 5 of subsection 1 of Section XX for the targets under consideration determines tax-free minimum incomes on the level of tax social benefit, stated in the subpara. 169.1.1 of the Code (= minimum poverty line for employable person per month as of January 1 of the fiscal year); para. 1 of the Section ХІХ of the Code, in the first edition, decreased this amount by 50 % till December 31, 2014.

It means that from January 1, 2015, even without raising of the minimum poverty line, marginal amounts stated in Article 212 of the Criminal Code should be increased twice, namely: the minimum poverty line should be considered in full, but not the half of it.

However, nothing of the kind. The legislators had precluded the facilitation anticipated.

The law of Ukraine No. 71-VII from December 28, 2014 “On Amendments to the Tax Code of Ukraine and Certain Legislative Acts of Ukraine Regarding Tax Reform” replaced December 31, 2014 by December 31, 2015 in the above mentioned para. 1 of Section XIX and therefore put off double increasing  of the criminal responsibility limits regarding Article 212 of the Criminal Code at least for a year.

Thus, the law regarding tax reform in this part made the situation on 2015 worse in comparison to that one which would have been without mentioned “reformatory law”.

3.

The Coalition Agreement of the deputy factions of the Verkhovna Rada of Ukraine of VIII convocation, signed last year, also promised limit increasing, with overcoming of which tax evasion may result in criminal responsibility. Thus, subpara. 3.5.1 of the Coalition Agreement states the following:

“3.5. The refusal of punitive model of tax control over:

3.5.1 double increasing (from 1000 to 2000 of tax-free minimum incomes) of large amounts of actual non-receipt to the budget of taxes, duties, unified social tax, and payments on retirement insurance for criminal offence qualifying attributes, set in Articles 212, 212-1 of the Criminal Code of Ukraine”.

But this provision (for the time being?) remains the promise.

4.

Therefore, the marginal amounts of criminal responsibility limits according to Article 212 of the Criminal Code of Ukraine in the absolute meaning remain for now at the level of the previous year.

Regarding the minimum poverty line for the employable person for the year 2015, set by the Law of Ukraine “On State Budget of Ukraine for 2015” as of January 1 (1218 UAH), the qualification of responsibility under  Article 212 of the Criminal Code of Ukraine for 2015 shall be carried upon the following limits:

UAH

2012

2013

2014

2015

Minimum poverty line for the employable person (established by the Law of Ukraine “On State Budget of Ukraine”)

1 073

1 147

1 218

1 218

Tax social benefit

(50% of the amount of the poverty line for the employable person)

536,5

50%*1 073

573,5

50%*1 147

609

50%*1 218

609

50%*1 218

Qualification under part 1 of Article 212 of the Criminal Code

(1000 * the amount of the tax social benefit)

536 500

1000*50%*

1 073

573 500

1000*50%*

1 147

609 000

1000*50%*

1 218

609 000

1000*50%*

1 218

Qualification under part 1 of Article 212 of the Criminal Code

(3000 * the amount of the tax social benefit)

1 609 000

3000*50%*

1 073

1 720 000

3000*50%*

1 147

1 827 000

3000*50%*

1 218

1 827 000

3000*50%*

1 218

Qualification under part 1 of Article 212 of the Criminal Code

(5000 * the amount of the tax social benefit)

2 682 500

5000*50%*

1 073

2 687 500

5000*50%*

1 147

3 045 000

5000*50%*

1 218

3 045 000

5000*50%*

1 218

Let us remind that in order to qualify the offence only taxes, duties and other mandatory payments which constitute the part of the tax system and were introduced by law shall be considered. Tax, duty, other mandatory payment are defined as mandatory fee to the budget of certain level or state purpose fund which is done by the taxpayer in the order and under conditions stipulated by tax laws of Ukraine. Hence, some tax obligations indicated in tax notification, issued on the basis of tax audit, shall not be considered to qualify the offence, i.e. only the sum of taxes (duties) shall be considered without penalties.

The above commentary presents the general statement for information purposes only and as such may not be practically used in specific cases without professional advice.

Kind regards,

© WTS Consulting LLC, 2015

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