Responsibility of tax agents

When does Article 123 of the Tax Code of the Russian Federation apply?

Art.
123 of the Tax Code of the Russian Federation is applied by the tax authorities in the case where the tax agent had the opportunity to withhold tax from the taxpayer when paying him income, but did not do so or fulfilled his duties untimely or not in full (did not fully withhold or transfer). The amount of the fine may be 20% of the amount subject to withholding and (or) transfer. Find out who is recognized as a tax agent and in what cases in ConsultantPlus. If you do not have access to the K+ system, get a trial demo access for free.

Read about how a tax agent calculates and within what time frames he pays personal income tax..

Let's consider these situations in more detail.

The tax agent could have withheld the tax, but did not do so.

In this case, tax authorities have the right to impose a fine on him under Art. 123 Tax Code of the Russian Federation. But when punishing a tax agent, they must make sure that the latter had the opportunity to withhold and transfer tax from the income paid to the taxpayer (subclause 4, clause 1, article 31, clause 3, article 88 of the Tax Code of the Russian Federation, clause 21 of the Plenum Resolution VAS dated July 30, 2013 No. 57). If this was not possible (for example, when making barter payments), the tax agent cannot be fined.

Also in this case, penalties are charged: for the period from the moment when the tax should have been withheld by the agent and transferred to the budget, and until the date when the obligation to pay the tax must be fulfilled by the taxpayer independently (clause 2 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30 .2013 No. 57).

The tax agent withheld the tax, but did not transfer it to the budget or transferred it, but with a delay.

This situation may also entail a fine under Art. 123 of the Tax Code of the Russian Federation in the amount of 20% of the amount to be transferred and a penalty (Article 75 of the Tax Code of the Russian Federation), since the tax will be received by the budget late.

In addition, the tax agent should remember that in case of failure to pay the tax on time, the obligation to pay the tax is compulsorily fulfilled (clause 1 of Article 46 of the Tax Code of the Russian Federation).

IMPORTANT! From January 28, 2019, tax agents may be exempt from fines if certain conditions are met (clause 2 of Article 123 of the Tax Code of the Russian Federation). See details here.

Objective part

Danger of violation punishable under Art. 123 of the Tax Code of the Russian Federation, is that this act undermines the system of financial support for the functioning of the state or the Moscow Region. This is due to the fact that the payer, although not through his own fault, does not comply with the provisions of Art. 57 of the Constitution and Art. 3 Codes.

When characterizing the objective side of the violation, the sanction for which is established by Art. 123 of the Tax Code of the Russian Federation, several important points should be noted:

Requirements that the subject does not comply with are determined not only by the Code, but also by other regulations.
Of all the duties prescribed for an agent, the article in question covers the complete or partial failure to withhold tax. At the same time, in order to collect the established amount, it is necessary to first calculate it. According to the rules of Art. 52-56, this procedure is carried out not by the payer, but by the tax agent.

How can you reduce the fine under Art. 123 of the Tax Code of the Russian Federation?

For various reasons, a tax agent cannot always fulfill in full its responsibility for calculating, withholding and transferring taxes to the budget. When determining the amount of punishment, inspectors must take into account all circumstances that could mitigate or eliminate the guilt of the tax agent (Articles 111, 112 of the Tax Code of the Russian Federation).

You can apply for a reduction in penalties for free by clicking on the picture below:

For example, tax agents were able to reduce the fine in court under the following mitigating circumstances:

Difficult financial situation of the agent, including the organization (resolutions of the Far Eastern District AS dated 02/15/2019 in case No. A51-14441/2018, West Siberian District dated 02/13/2017 in case No. A45-15136/2015).
Committing an offense for the first time (resolution of the Court of Justice of the West Siberian District dated May 30, 2016 in case No. A81-2796/2015).
Voluntary repayment of arrears (resolution of the Federal Antimonopoly Service of the Moscow District dated April 16, 2014 in case No. A41-42709/13).
The offense was caused by a technical error by an accountant (resolution of the Federal Antimonopoly Service of the East Siberian District dated July 24, 2007 in case No. A19-913/07-41).
Frequent changes of management and accountants during the tax period (resolution of the Federal Antimonopoly Service of the Volga Region dated May 13, 2009 in case No. A65-20641/2008), etc.

What circumstances are recognized in practice as mitigating liability for an offense under Art. 123 of the Tax Code of the Russian Federation? ConsultantPlus experts have compiled a unified overview of court decisions on this issue. Get trial demo access to the K+ system and go to the selection for free.

Tax Code of the Russian Federation 2022

Chapter 16 Types of tax offenses and liability for their commission

Article 116. Violation of the procedure for registration with the tax authority
(as amended by Federal Law No. 229-FZ of July 27, 2010)

Note: On the administrative liability of officials for violating the deadline for registration with the tax authority, see Art. 15.3 Code of Administrative Offenses of the Russian Federation.

1. Violation by a taxpayer of the deadline established by this Code for filing an application for registration with a tax authority on the grounds provided for by this Code shall entail a fine in the amount of 10 thousand rubles. 2. Conducting activities by an organization or individual entrepreneur without registering with the tax authority on the grounds provided for by this Code shall entail a fine in the amount of 10 percent of the income received during the specified time as a result of such activity, but not less than 40 thousand rubles.

Article 117. Repealed. — Federal Law of July 27, 2010 N 229-FZ.

Article 118. Repealed. — Federal Law dated April 2, 2014 N 52-FZ.

Article 119. Failure to submit a tax return (calculation of the financial result of an investment partnership, calculation of insurance premiums) (as amended by Federal Laws of November 28, 2011 N 336-FZ, of July 3, 2016 N 243-FZ)

(as amended by Federal Law dated July 27, 2010 N 229-FZ)

Note: On the administrative liability of officials for violating the deadline for submitting a tax return, see Art. 15.5 Code of Administrative Offenses of the Russian Federation.

1. Failure to submit a tax return (calculation of insurance premiums) to the tax authority at the place of registration within the deadline established by the legislation on taxes and fees (as amended by Federal Law No. 243-FZ of July 3, 2016) entails the collection of a fine in the amount of 5 percent of the amount not paid in the deadline established by the legislation on taxes and fees for the amount of tax (insurance contributions) subject to payment (additional payment) on the basis of this declaration (calculation of insurance contributions), for each full or partial month from the day established for its submission, but not more than 30 percent of the specified amounts and not less than 1,000 rubles. (as amended by Federal Law dated July 3, 2016 N 243-FZ) (clause 1 as amended by Federal Law dated June 28, 2013 N 134-FZ) 2. Failure by the managing partner responsible for maintaining tax accounting to calculate the financial result of the investment partnership to the tax authority at the place of registration within the period established by the legislation on taxes and fees entails the collection of a fine in the amount of 1,000 rubles for each full or partial month from the day established for its submission. (Clause 2 introduced by Federal Law dated November 28, 2011 N 336-FZ)

Article 119.1. Violation of the established method of submitting a tax return (calculation)

(introduced by Federal Law dated July 27, 2010 N 229-FZ)

Failure to comply with the procedure for submitting a tax return (calculation) in electronic form in cases provided for by this Code (as amended by Federal Law No. 97-FZ of June 29, 2012) entails a fine of 200 rubles.

Article 119.2. Submission to the tax authority by the managing partner responsible for maintaining tax records of a calculation of the financial result of an investment partnership containing inaccurate information

(introduced by Federal Law dated November 28, 2011 N 336-FZ)

1. Submission to the tax authority by the managing partner responsible for maintaining tax accounting of a calculation of the financial result of an investment partnership containing false information shall entail a fine of forty thousand rubles. 2. The same acts committed intentionally shall entail a fine in the amount of eighty thousand rubles.

Article 120. Gross violation of the rules for accounting for income and expenses and objects of taxation (base for calculating insurance premiums) (as amended by Federal Law No. 243-FZ of July 3, 2016)

Note: On the administrative liability of officials for gross violation of the rules of accounting and presentation of financial statements, see Art. 15.11 Code of Administrative Offenses of the Russian Federation.

1. Gross violation of the rules for accounting for income and (or) expenses and (or) objects of taxation, if these acts were committed during one tax period, in the absence of signs of a tax offense provided for in paragraph 2 of this article (as amended by Federal Laws dated 09.07. 1999 N 154-FZ, dated July 23, 2013 N 248-FZ) entails a fine of ten thousand rubles. (as amended by Federal Law dated July 27, 2010 N 229-FZ) 2. The same acts, if committed during more than one tax period, (as amended by Federal Law dated July 9, 1999 N 154-FZ) entail a fine of in the amount of thirty thousand rubles. (as amended by Federal Law No. 229-FZ of July 27, 2010) 3. The same acts, if they resulted in an understatement of the tax base (base for calculating insurance premiums), (as amended by Federal Laws of July 9, 1999 No. 154-FZ, dated 07/03/2016 N 243-FZ) entail a fine in the amount of twenty percent of the amount of unpaid tax (insurance contributions), but not less than forty thousand rubles. (as amended by Federal Laws dated July 27, 2010 N 229-FZ, dated July 3, 2016 N 243-FZ) For the purposes of this article, a gross violation of the rules for accounting for income and expenses and objects of taxation means the absence of primary documents, or the absence of invoices, or accounting or tax accounting registers, systematic (two or more times during a calendar year) untimely or incorrect reflection in accounting accounts, in tax accounting registers and in reporting of business transactions, cash, tangible assets, intangible assets and financial investments. (as amended by Federal Laws dated 07/09/1999 N 154-FZ, dated 07/27/2010 N 229-FZ, dated 07/23/2013 N 248-FZ) 4. Excluded. — Federal Law of July 9, 1999 N 154-FZ.

Article 121. Deleted. — Federal Law of July 9, 1999 N 154-FZ.

Note: On some issues of application by arbitration courts of Art. 122 see Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 N 57.

Article 122. Non-payment or incomplete payment of tax amounts (fees, insurance contributions) (as amended by Federal Laws of July 27, 2006 N 137-FZ, of July 3, 2016 N 243-FZ)

1. Non-payment or incomplete payment of tax amounts (fees, insurance contributions) as a result of understatement of the tax base (base for calculating insurance premiums), other incorrect calculation of taxes (fees, insurance contributions) or other unlawful actions (inaction), if such an act does not contain signs of tax offenses provided for in Articles 129.3 and 129.5 of this Code (as amended by Federal Law No. 243-FZ of July 3, 2016) entails a fine in the amount of 20 percent of the unpaid amount of tax (fee, insurance contributions). (as amended by Federal Laws dated July 27, 2006 N 137-FZ, dated July 3, 2016 N 243-FZ) 2. Lost force. — Customs Code of the Russian Federation dated May 28, 2003 N 61-FZ. 3. Acts provided for in paragraph 1 of this article, committed intentionally (as amended by the Customs Code of the Russian Federation dated May 28, 2003 N 61-FZ) entail a fine in the amount of 40 percent of the unpaid amount of tax (fees, insurance contributions). (as amended by Federal Laws dated 07/09/1999 N 154-FZ, dated 07/27/2006 N 137-FZ, dated 07/03/2016 N 243-FZ) 4. Non-payment or incomplete payment of tax amounts by a responsible participant in a consolidated group of taxpayers is not recognized as an offense profit of organizations for a consolidated group of taxpayers as a result of an understatement of the tax base, other incorrect calculation of corporate income tax for a consolidated group of taxpayers or other unlawful actions (inaction), if they were caused by the reporting of inaccurate data (failure to report data) that affected the completeness of tax payment by another participant a consolidated group of taxpayers held accountable in accordance with Article 122.1 of this Code. (Clause 4 introduced by Federal Law dated November 16, 2011 N 321-FZ)

Article 122.1. Communication by a participant of a consolidated group of taxpayers to the responsible participant of this group of inaccurate data (failure to report data), which led to non-payment or incomplete payment of corporate income tax by the responsible participant

(introduced by Federal Law dated November 16, 2011 N 321-FZ)

1. Communication by a participant of a consolidated group of taxpayers to a responsible participant of this group of inaccurate data (failure to report data), which led to non-payment or incomplete payment of corporate income tax for the consolidated group of taxpayers by its responsible participant, entails a fine in the amount of 20 percent of the unpaid amount of tax. 2. Acts provided for in paragraph 1 of this article, committed intentionally, entail a fine in the amount of 40 percent of the unpaid tax amount.

Article 123. Failure of a tax agent to fulfill the obligation to withhold and (or) transfer taxes

Unlawful non-withholding and (or) non-transfer (incomplete withholding and (or) transfer) within the period established by this Code of tax amounts subject to withholding and transfer by the tax agent (as amended by Federal Laws of 07/09/1999 N 154-FZ, of 07/27/2010 N 229-FZ) entails a fine in the amount of 20 percent of the amount subject to withholding and (or) transfer. (as amended by Federal Laws dated 07/09/1999 N 154-FZ, dated 07/27/2010 N 229-FZ)

Article 124. Repealed. — Federal Law of December 30, 2001 N 196-FZ.

Article 125. Failure to comply with the procedure for possession, use and (or) disposal of property that has been seized or in respect of which the tax authority has taken interim measures in the form of a pledge (as amended by Federal Law No. 229-FZ of July 27, 2010)

Failure to comply with the procedure established by this Code for the possession, use and (or) disposal of property that has been seized or in respect of which the tax authority has taken interim measures in the form of a pledge (as amended by Federal Laws dated July 9, 1999 N 154-FZ, dated July 27. 2010 N 229-FZ) entails a fine in the amount of 30 thousand rubles. (as amended by Federal Law dated July 27, 2010 N 229-FZ)

Article 126. Failure to provide the tax authority with information necessary to carry out tax control (as amended by Federal Law No. 154-FZ of July 9, 1999)

Note: On administrative liability for failure to provide information necessary for tax control, see Art. 15.6 Code of Administrative Offenses of the Russian Federation.

1. Failure by a taxpayer (fee payer, insurance premium payer, tax agent) to submit to the tax authorities documents and (or) other information provided for by this Code and other acts of legislation on taxes and fees, if such an act does not contain signs of tax offenses, provided for in Articles 119, 129.4, 129.6, 129.9 - 129.11 of this Code, as well as paragraphs 1.1 and 1.2 of this article (as amended by Federal Laws dated November 24, 2014 N 376-FZ, dated 05/02/2015 N 113-FZ, dated 07/03. 2016 N 243-FZ, dated November 27, 2017 N 340-FZ) entails a fine of 200 rubles for each unsubmitted document. (as amended by Federal Law No. 229-FZ of July 27, 2010) (clause 1 introduced by Federal Law No. 154-FZ of July 9, 1999) 1.1. Failure to submit to the tax authority the documents provided for in paragraph 5 of Article 25.15 of this Code, expressed in the refusal of the controlling person to submit the documents in his possession, as well as other evasion from submitting such documents or submitting documents with knowingly false information shall entail the collection of a fine from the controlling person in the amount of 100,000 rubles . (clause 1.1 introduced by Federal Law dated November 24, 2014 N 376-FZ) 1.2. Failure by a tax agent to submit within the established period of time the calculation of the amounts of personal income tax calculated and withheld by the tax agent to the tax authority at the place of registration entails the collection of a fine from the tax agent in the amount of 1,000 rubles for each full or partial month from the day established for its submission . (Clause 1.2 introduced by Federal Law dated 02.05.2015 N 113-FZ) 2. Failure to submit information about the taxpayer (payer of insurance premiums) to the tax authority within the prescribed period, refusal of a person to submit the documents in his possession, provided for by this Code, with information about the taxpayer ( payer of insurance premiums) at the request of the tax authority or submission of documents with knowingly false information, if such an act does not contain signs of violations of the legislation on taxes and fees provided for in Articles 126.1 and 135.1 of this Code (as amended by Federal Laws dated 07/09/1999 N 154- Federal Law, dated July 23, 2013 N 248-FZ, dated November 4, 2014 N 347-FZ, dated May 2, 2015 N 113-FZ, dated July 3, 2016 N 243-FZ) entails a fine from an organization or individual entrepreneur in the amount of ten thousand rubles, from an individual who is not an individual entrepreneur - in the amount of one thousand rubles. (as amended by Federal Law No. 248-FZ of July 23, 2013) 3. Lost force. — Federal Law of December 30, 2001 N 196-FZ.

Article 126.1. Submission by a tax agent to the tax authority of documents containing false information

(introduced by Federal Law dated May 2, 2015 N 113-FZ)

1. Submission by a tax agent to the tax authority of documents provided for by this Code containing false information shall entail a fine in the amount of 500 rubles for each submitted document containing false information. 2. A tax agent is released from liability under this article if he independently identifies errors and submits updated documents to the tax authority before the tax agent learns that the tax authority has discovered that the information contained in the documents submitted by him is unreliable.

Article 127. Deleted. — Federal Law of July 9, 1999 N 154-FZ.

Article 128. Liability of a witness

Failure to appear or evasion of appearance without good reason by a person called in a tax offense case as a witness shall entail a fine in the amount of one thousand rubles. (as amended by Federal Law dated July 27, 2006 N 137-FZ) Wrongful refusal of a witness to testify, as well as giving knowingly false testimony (as amended by Federal Law dated July 9, 1999 N 154-FZ) entails a fine of three thousand rubles (as amended by Federal Law dated July 27, 2006 N 137-FZ)

Article 129. Refusal of an expert, translator or specialist to participate in a tax audit, giving a knowingly false conclusion or making a knowingly false translation

1. Refusal of an expert, translator or specialist to participate in a tax audit shall entail a fine of 500 rubles. 2. Giving a knowingly false conclusion by an expert or making a knowingly false translation by a translator shall entail a fine of 5,000 rubles. (as amended by Federal Law dated July 27, 2010 N 229-FZ)

Article 129.1. Wrongful failure to report information to the tax authority

(introduced by Federal Law dated 07/09/1999 N 154-FZ)

1. Unlawful failure to report (untimely reporting) by a person of information that, in accordance with this Code, this person must report to the tax authority, including failure (late submission) by a person to the tax authority of the explanations provided for in paragraph 3 of Article 88 of this Code in case of failure to submit within the prescribed period an updated tax return, in the absence of signs of a tax offense provided for in Article 126 of this Code (as amended by Federal Law No. 130-FZ dated 01.05.2016) entails a fine in the amount of 5,000 rubles. (as amended by Federal Law No. 229-FZ of July 27, 2010) 2. The same acts committed repeatedly within a calendar year will entail a fine of 20,000 rubles. (as amended by Federal Law No. 229-FZ of July 27, 2010) 2.1. Wrongful failure (late submission) by a taxpayer - a foreign organization (a foreign structure without forming a legal entity) to the tax authority of the information provided for in paragraph 3.2 of Article 23 of this Code, entails a fine in the amount of 100 percent of the amount of corporate property tax calculated in relation to the real estate property , owned by this foreign organization (foreign structure without forming a legal entity), which did not submit (untimely submitted) the information provided for in paragraph 3.2 of Article 23 of this Code. In this case, the amount of the fine is calculated in proportion to the share of participation in the organization, information about which is not provided (submitted untimely), or if it is impossible to determine the share of participation of a person in the organization (foreign structure without forming a legal entity) in proportion to the number of participants. (clause 2.1 introduced by Federal Law No. 376-FZ of November 24, 2014) 3. Wrongful failure (late submission) by an individual taxpayer to the tax authority of the message provided for in clause 2.1 of Article 23 of this Code entails a fine in the amount of 20 percent of the unpaid amount tax in relation to an object of real estate and (or) a vehicle for which the message provided for in paragraph 2.1 of Article 23 of this Code has not been submitted (untimely submitted). (clause 3 introduced by Federal Law dated April 2, 2014 N 52-FZ)

Article 129.2. Violation of the procedure for registering gambling business objects

(introduced by Federal Law dated July 27, 2006 N 137-FZ)

1. Violation of the procedure established by this Code for registering an object of taxation with the gambling tax with the tax authority or the procedure for registering changes in the number of objects of taxation - (as amended by Federal Law dated July 23, 2013 N 248-FZ) entails a fine of three times the rate of tax on gambling business established for the corresponding object of taxation. 2. The same acts, committed more than once, entail a fine of six times the gambling tax rate established for the corresponding object of taxation.

Note: On the procedure for bringing to justice for an offense under Art. 129.3, see Federal Law dated July 18, 2011 N 227-FZ.

Article 129.3. Non-payment or incomplete payment of tax amounts as a result of the application for tax purposes in controlled transactions of commercial and (or) financial terms that are not comparable with the commercial and (or) financial terms of transactions between persons who are not interdependent

(introduced by Federal Law dated July 18, 2011 N 227-FZ)

1. Non-payment or incomplete payment by a taxpayer of tax amounts as a result of the application for tax purposes in controlled transactions of commercial and (or) financial conditions that are not comparable with the commercial and (or) financial conditions of transactions between persons who are not interdependent, entails a fine of 40 percent of the unpaid tax amount, but not less than 30,000 rubles. 2. The taxpayer is released from liability under this article, provided that he submits to the federal executive body authorized for control and supervision in the field of taxes and fees, documentation justifying the market level of prices applied for controlled transactions, in accordance with the procedure established by Article 105.15 of this Code, or in accordance with the procedure established by the pricing agreement for tax purposes.

Article 129.4. Wrongful failure to submit a notification of controlled transactions, provision of false information in a notification of controlled transactions

(introduced by Federal Law dated July 18, 2011 N 227-FZ)

Wrongful failure by a taxpayer to submit to a tax authority within the prescribed period a notice of controlled transactions completed in a calendar year, or a taxpayer to submit to a tax authority a notice of controlled transactions containing false information, shall entail a fine of 5,000 rubles.

Note: On the procedure for bringing to justice for an offense under Art. 129.5, see Federal Law dated November 24, 2014 N 376-FZ.

Article 129.5. Non-payment or incomplete payment of tax amounts as a result of non-inclusion of a share of the profit of a controlled foreign company in the tax base

(introduced by Federal Law dated November 24, 2014 N 376-FZ)

Failure to pay or incomplete payment by a controlling person, who is a taxpayer - an individual or an organization, of tax amounts as a result of non-inclusion in the tax base of a share of the profit of a controlled foreign company entails a fine in the amount of 20 percent of the amount of unpaid tax in relation to the profit of a controlled foreign company subject to inclusion in the tax base. the base for the personal income tax for controlling persons who are taxpayers - individuals, the tax base for the corporate income tax for controlling persons who are taxpayers - organizations, but not less than 100,000 rubles.

Article 129.6. Wrongful failure to submit notification of controlled foreign companies, notification of participation in foreign organizations, provision of false information in the notification of controlled foreign companies, notification of participation in foreign organizations

(introduced by Federal Law dated November 24, 2014 N 376-FZ)

1. Wrongful failure by a controlling person to submit a notification about controlled foreign companies for a calendar year to the tax authority within the prescribed period or submission by a controlling person to a tax authority of a notification about controlled foreign companies containing false information shall entail a fine in the amount of 100,000 rubles for each controlled foreign company , information about which is not provided or in respect of which inaccurate information is provided. 2. Wrongful failure by a taxpayer to submit a notice of participation in foreign organizations to the tax authority within the prescribed period or submission of a notice of participation in foreign organizations containing false information shall entail a fine in the amount of 50,000 rubles in respect of each foreign organization for which information was not provided or in respect of which false information has been provided.

Note: Sanctions provided for in Art. 129.7, do not apply if these offenses are detected in 2022 - 2022. (Federal Law dated November 27, 2017 N 340-FZ).

Article 129.7. Non-direction (non-inclusion) by a financial market organization of financial information about the clients of the financial market organization, beneficiaries and (or) persons controlling them