SUBSIDIARY LIABILITY FOR TAX OBLIGATIONS

A tax obligation is traditionally understood as a taxpayer's obligation to pay a certain tax established by law. As a general rule, a taxpayer is obliged to independently fulfill the obligation to pay tax by transferring funds as a single tax payment. Otherwise may be established by tax legislation. For more information, see the article by Vladislav Varshavsky, Managing Partner of the law firm "Varshavsky and Partners".

In accordance with the Resolution of the Constitutional Court of the Russian Federation No. 39-P dated 08.12.2017, an individual can be brought to civil liability for tax debts of an organization only if the conditions for bringing him to civil liability are met and only after the available mechanisms for collecting arrears directly from the organization, as well as from other persons, have been exhausted who bear subsidiary liability in accordance with the procedure provided for by civil law and bankruptcy law.

The Constitutional Court of the Russian Federation pointed out one of the features of tax offenses committed by legal entities: since liability for such offenses arises as a result of the actions of individuals (as a rule, these are managers or employees performing the functions of the chief accountant), such individuals should be responsible for them.

In bankruptcy cases, the person controlling the bankrupt may be held vicariously liable in cases where full repayment of creditors' claims is impossible due to the behavior of the controlling person. Until proven otherwise, it is assumed that the controlling person is, for example, the head of the debtor organization. One of the effective mechanisms of subsidiary liability is the possibility of involving a controlling person even after the termination of bankruptcy proceedings.

To date, law enforcement practice follows the path of expanding the subject composition of persons acting on the side of a fiscal debtor recognized as bankrupt. It should be noted that the approach of the Supreme Court of the Russian Federation, specified in the Ruling of December 16, 2019 No. 303-ES19-15056, according to which such entities include the heirs of the controlling debtor of the person, as well as other entities related to the property of this person. To submit an application for bringing to subsidiary responsibility for tax offenses, a positive court decision on collecting arrears from the debtor is sufficient.

The subsidiary liability of the controlling debtor of the person in the bankruptcy process is an independent type of liability and cannot be reduced to additional liability, which is exclusively derived from the liability of the main debtor. The collection of tax arrears from founders, managers, employees and the imposition of liability on them for the debts of a legal entity - taxpayer to the budget are allowed only in cases specifically provided for by tax and civil legislation. In particular, such conclusions were formulated by the Supreme Court of the Russian Federation (Ruling of the Supreme Court of the Russian Federation No. 78-KG22-19-K3 of 06/28/2022).

The Supreme Court of the Russian Federation pointed out that the recovery of damage from an individual in the amount of tax arrears and penalties is an additional (subsidiary) legal means to protect the rights and legitimate interests of public legal entities. The following disputes can be cited as the most striking examples.

The business of the two companies was transferred to one legal entity. These two companies had tax arrears to the budget. The tax authority collected tax arrears from an interdependent person. As a result, the company was declared insolvent (bankrupt). The court brought to subsidiary responsibility the sole participant of the company-the debtor, having come to the conclusion that there is guilt and a causal relationship between his actions and the inability to repay the arrears.

The Court concluded that the company, under the management of a single participant, participated in the implementation of a tax evasion scheme (Resolution of the Arbitration Court of the Moscow District of 15.08.2022 No. A41-91695/2018). During the period under review, there were funds in the debtor's accounts in an amount sufficient to repay tax arrears, however, they were directed to the personal needs of the defendant – the debtor's manager. The debtor had no other assets. The court concluded that the actions of the head significantly worsened the situation of the debtor, in connection with which he was brought to subsidiary liability (Resolution of the Arbitration Court of the Ural District of 29.07.2022 No. A76-50702/2020).