Non-fulfillment of tax obligation by taxpayers

Before envisaging the legal framework that proscribes the illegal behavior of a taxpayer by the burden of liability, it is worth noting that tax legislation of Uzbekistan entrench the principle of refusing retroactive force of law and it is mirrored in the article 3 of the Code. However, the Code construes the principle in a quite peculiar way suggesting that legislative acts that alleviate or eliminate the liability for tax law’s delinquencies do have retroactive force, but those aggravating or incurring liability does not.  

Again, in order to secure proper compliance with the norms stipulated in tax legislation, its system of punishment incurs the liability in case of non-fulfillment of tax obligations likewise any other system of legislation does.

The order of compliance with the norms of tax law is guaranteed by application of financial, administrative, criminal and disciplinary liability.    

1. Financial liability

Remarkably, academics and practitioners of the related discipline have produced a vast literature debating the nature, importance and feasibility of financial liability. There is a debate that questions the independence of financial liability from other legal responsibilities, such as administrative, disciplinary, civil and criminal. One scholarship propounds that the financial liability is an independent kind of legal responsibility, arguing that the legislation itself accurately differentiates the financial sanctions from administrative liability. 

Further, the aforementioned paradigm was encountered with another standpoint that promulgated the financial liability’s parallel to administrative culpability. Kalinina’s belief established the fact that otherwise it would be necessary to distinguish the entrepreneurial, budgetary, ecological, agrarian liability. 

Pepelyaev drew support for the latter version from the measures that are applied in case of imposition of financial liability. He contends that the measures therein are the application of typical administrative sanction, i.e. a fine, and, indeed, there is no other specific penalizing measure for the aforementioned financial liability.

The Constitutional Court of Russian Federation has been also involved in the resolution of the dispute and endorsed the position of inalienability of financial liability from the administrative one as well as the relevance of administrative jurisdiction in regard of the tax offences.

Hence, the financial sanctions for the non-compliance with the tax legislation are stipulated in article 135 of the Code. For instance:

• [E]vasion from registration with the tax authority (including non-residents and except for commercial resident organizations):

If such activity is carried out within thirty days -        Fiftyfold the rate of the minimum wage but not less than 10 % of the income (profit) amount derived from this activity;

If such activity is carried out for more than thirty days -        One-hundredfold the rate of the minimum wage but not less than 50 % of the income (profit) amount derived from this. 

2. Administrative liability

It is organs of tax service that envisage administrative infractions and apply administrative penalty. In accordance with article 264 of the Code on administrative responsibility a restricted number of administrative impingements that taxpayers can be accountable for before organs of tax service.

3. Criminal liability

Violations of criminal law in the sphere of tax relations are referred to as tax crimes. These delinquencies are stipulated in criminal legislation, i.e. Criminal Code of the Republic of Uzbekistan.

4. Disciplinary liability

If an official of an enterprise committed an action that afterwards would incur a violation of tax obligation of the aforementioned legal entity, he would bear disciplinary liability. However, imposed disciplinary liability will be incurred before the enterprise hereinabove mentioned as this enterprise will actually endure damages from these actions.

Liability of tax agent

Tax legislation contains the provisions that impose liability to effect payment of taxes to the budget on other subjects. Uzbek law does not have an appropriate term for these subjects, however, as Petrova claims, economically developed countries name them as tax agents.  Notably, unlike Uzbek legislation, the Russian Tax Code also has the relevant provision. Thus, tax agents therein are regarded natural or legal entities that are required to calculate, withhold from the taxpayer and remit taxes to the corresponding budget. 

The most typical example of participation of a tax agent is an organization effecting payment of income (profit) tax instead of a natural or legal entity. In this regard, the letter of law prescribes that the legal entity involved in payment income shoulders responsibility for the levy and accurate transfer to the budget of the sum of income tax. For instance, if a legal entity withheld the income tax from his employee and did not effect timely payment to the budget, it would be required to transfer to the budget an unlevied sum of income tax plus corresponding fines at its own expense.

Specifically, provision that entails the tax agent’s liability for non-presentation of accounts is other dissimilarity of Russian Tax Code. Hence, it is obvious that the institution of tax agent in the Russian tax legislation is more scrutinized and developed.  

Tax control

Taxpayers’ right to appeal  

As economic incentives, tax penalties are remarkably crude policy instruments. To rebalance this harshness and pressure, taxpayers are able to appeal against decisions and actions of controlling agencies to the court or to a higher organ or to an official. 

Comparative analysis: Uzbekistan v other countries

Russian tax subcommittee deputies have supported amendments to the Tax code of the Russian Federation and, as a result, the procedure of indisputable collection of financial sanctions will be cancelled. Deputies of the lower chamber of Parliament, thus, restore the taxpayers’ presumption of innocence. In accordance with their proposal, companies and individual entrepreneurs have the right to appeal against the imposition of financial penalty within 10 days. That is to say, any tax arrears, financial sanctions and fines will automatically be suspended for the period of consideration of the complaint.  

Particularly noteworthy is the elimination of the responsibility when taxpayers or tax agents pursue the written explanations of tax organs that pertain to the application of tax legislation.

This right is stipulated for in the article 21 of the Tax Code of Russian Federation, where it is contemplated that taxpayers and tax agents have the right to obtain written explanations from tax organs and other authorized bodies in regard of the application of tax legislation. In essence, written explanations have recommendatory force and are not mandatory for the taxpayer. But, pursuant to the provisos of the Tax Code of Russian Federation, if an inaccurate explanation of tax organ, for instance, leads to any infringement of tax legislation it will evince the absence of fault of this taxpayer and, as a result, the liability for those breaches will not be incurred. It is noteworthy that only officials of tax organs that have the appropriate status and power are able to provide the officially issued explanations.  Explanations of the legal advisers, experts, etc. have no value for these purposes. 

Notably, unlike the TC, Tax Code of the Republic of Tajikistan appositely announces the definition for the concept of tax delinquency. In addition, the aforementioned Code addresses the issue of a tax agent. Namely, it is defined as illegal (in the context of tax legislation) act (action or inaction) of a taxpayer, tax agent and their representatives for which corresponding measures of the responsibility are established.  Likewise the Tax Code of the Russian Federation, Tajik legislation stipulates that a taxpayer will be excluded from the liability if he/she applies the norms of legislation in a way that written explanation of a tax organ or other authorized body prescribes.  

Credibility of Uzbek tax system

Apparently, the tax system of Uzbekistan gives edge to the perception that it is not viable and is detrimental to the taxpayers. Zavalishina correctly recognizes that the stringent tax regime is rather unstable. Following her arguments, high tax rates and fiscal approach are the principal deficiencies of the tax system in Uzbekistan.   

In accordance with the principle of clarity proposed by Smith in his treatise on “Elaboration of the nature and prerequisites of the people’s prosperity”, a taxpayer shall be informed of every amendment in the tax legislation beforehand.   

The tax penalties are increasingly haphazard. Indeed, Uzbek tax legislation is dispersed throughout a myriad of legislative acts. Moreover, its constant exposure to amendments inevitably leads to instability and unawareness that overwhelmingly affect the feasibility of tax system in the whole.

However, it is commonplace that any existent tax system cannot be named as ideal both to the state and to taxpayers.

The fundamental premise

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