New clarifications by the Federal Tax Service on the collection of tax debts owed by an organization from an individual

The Federal Tax Service in letter N D-5-18/23@ from 09.02.2024 formed positions on the order of application of provisions on the recovery of debts of the organization in the amount of tax arrears and penalties from a physical person

in accordance with the Resolution of the Constitutional Court of the Russian Federation No. 39-P of December 8, 2017, which recognized as constitutional Articles 15, paragraph 1 of Article 1064 of the Civil Code of the Russian Federation and subparagraphs. 14 subparagraph 1, paragraph 1 of Article 31 of the Tax Code of the Russian Federation.

Tax authorities may bring claims for damages against individuals who have been convicted of tax crimes due to non-payment of taxes by organizations. The tax authorities may also bring claims against individuals whose criminal prosecution for such crimes was terminated on non-rehabilitative grounds. Tax authorities need to provide evidence that the individual being prosecuted is involved in the activities of the organization and influences its actions.

The harm consists in non-payment of taxes and penalties to the budget. The penalty is not included in the amount of harm. Tax authorities have the right to make claims to citizens for reimbursement of the amount of the fine as damages in favor of the debtor-legal entity, including in the absence of bankruptcy proceedings.

When identifying the deliberate form of guilt is inadmissible to reduce the amount of compensation for damage caused by a citizen, including taking into account his property status.

Tax authorities should exclude situations of recovery of damage in double amount (once – from a legal entity in the order of tax legislation, and the second – from an individual in the order of civil legislation).

The amount of damage to be recovered from an individual should be adjusted (reduced) by the amount of the actual collected (paid) debt.

In the event that before the actual execution of the already issued judicial act the amount of damage was fully or partially recovered from other sources, the tax authorities should charge only the corresponding remaining amount of the unfulfilled obligation.

An individual is held civilly liable for harm in the form of non-payment of taxes only when the debts cannot be recovered from the organization.

In this case, the letter of the Federal Tax Service No. CA-4-18/45@ dated January 9, 2018, which contained clarifications on the application of Decree No. 39-P, is repealed.