ارزیابی رویکرد مالیات ستانی الکترونیکی در جرم انگاری تخریب پایانه فروشگاهی خود

استقرار دهکده مجازی مالیات ستانی در راستای اصلاح نظام مالیاتی و تبدیل فرآیند مالیات ستانی سنتی به مالیات ستانی الکترونیکی با اصلاحات قانون مالیات های مستقیم آغاز شده و با تصویب قانون پایانه های فروشگاهی و سامانه مودیان سرعت گرفته است. اهمیت پایانه های فروشگاهی به عنوان ابزارهای وصول الکترونیک مالیات، برخورداری از خصیصه های صدور صورت حساب الکترونیکی و اتصال به شبکه های پرداخت رسمی کشور و سامانه مودیان باعث گردید رفتارهای مجرمانه علیه آن جرم انگاری شود. قانونگذار با اتخاذ راهبرد پیش روی در سیاست کیفری به جرم انگاری یکی از مصادیق جرایم مالیاتی تحت عنوان تخریب پایانه های فروشگاهی خود به قصد تقلب یا اخلال در نظام مالیاتی کشور در ماده 23 قانون پایانه های فروشگاهی اقدام نموده و دو رویکرد حمایت مدارانه و سخت گیرانه را نسبت به مودی پیش بینی می کند، اما با چالش هایی همراه است. عدم توازن کیفرها در جهات تشدید، حبس گرایی قضات و اجتماع، فقدان بازدارندگی مجازات های تعزیری درجه شش، تحدید قلمرو جرم انگاری با اثبات سوءنیت خاص و ابهام در آثار تکرار جرم از مهم ترین چالش هاست. از این رو، پیشنهاد می گردد مقنن در کنار پیش بینی برخی از مصادیق جرایم مالیاتی مذکور تحت عنوان اخلال در نظام اقتصادی کشور یا ذیل مصادیق افساد فی الارض و حذف نظام مجازات جزای نقدی ثابت و جایگزینی آن با نظام مجازات جزای نقدی نسبی، سیاست کیفری منطبق با شرایط و اوضاع و احوال و مبتنی بر اصول جرم انگاری و کیفرگذاری تعریف نماید.

evaluating the electronic tax collection approach incriminalizing the destruction of one's own store terminal

the establishment of the virtual tax collection village with the reform of the tax system and the transformation of the traditional tax collection process into electronic tax collection began with the amendments to the direct taxes law and has accelerated with the approval of the law on store terminals and the taxpayer system. the importance of store terminals as electronic tax collection tools, their electronic invoicing features, and their connection to the country’s official payment networks and the taxpayer system have led to the criminalization of criminal behavior against them. the legislator, adopting a progressive strategy in criminal policy, has criminalized one of the examples of tax crimes under the title of destroying store terminals with the intention of fraud or disrupting the country’s tax system in article 23 of the store terminals law and foresees two approaches: a supportive approach and a strict approach towards taxpayers, but it is accompanied by challenges. the imbalance of penalties in aggravation, the incarcerationism of judges and society, the lack of deterrence of sixth-degree ta’zir penalties, the limitation of criminalization by proving specific malice, and the ambiguity of recidivism’s effects are among the most important challenges. therefore, it is suggested that the legislator, in addition to forestating some of the aforementioned tax crimes under the title of economic crimes or corruption on earth and eliminating the fixed fine punishments and replacing them with a relative fine, define a penal policy that is following conditions and circumstances and based on criminalization and sentencing principles.introductiontaxation is one of the most important concerns of the government because the main part of the revenue sources of governments is provided through taxes. taxes are the most stable type of government income that can achieve economic growth by utilizing taxes appropriately. however, the harmful effects of tax crimes such as tax evasion on the country’s economic system and disrupting economic growth are undeniable. tax evasion reduces the government’s tax revenue; disrupts the annual budget and changes the competitive power of economic factors in favor of the perpetrators. this factor will increase the gap between different income groups. therefore, tax evasion is one of the important concerns of the governments and extensive efforts have been made to identify this phenomenon and deal with it. in this regard, considering the lack of sufficient enforcement guarantees for tax crimes, especially tax evasion, the amendment approved in 2015 to the direct taxes law and strengthening enforcement guarantees to prevent tax evasion is an important step taken by the government to increase tax revenue and reduce tax evasion.currently, the development of new technologies has caused their alphabet to enter the depths of human society and in the short time since its emergence, it has been able to create many changes in human lifestyle. meeting many of society’s needs is tied to technology and new ideas, to the point that even for a simple purchase from the supermarket, there is no need to leave the house, and with a few simple clicks and electronic payment, the desired product can be delivered to your door in a short time. in such an environment where the layers of human life are permeated with various forms of new technologies, understanding new electronic concepts in tax collection has been included in the program for transforming the country’s tax system. a program that uses digital technologies to collect taxes in electronic platforms such as store terminals has been considered in article 1, paragraph b of the law on store terminals and the taxpayer system of 1398; because the lack of establishment of electronic tax collection mechanisms in trade units makes the tax organization incapable of calculating and collecting taxes accurately.given this importance, the necessity of developing a criminal policy to protect the achievements of the virtual village of tax collection will become apparent. therefore, the purpose of this study is to evaluate the tax collection approach in the tax criminal policy of article 23 of the law on store terminals and the taxpayer system of 1398. one example of tax evasion is the destruction of the store terminal itself with the intention of fraud or disruption of the country’s tax system, which implies destruction by the taxpayer as the owner of the property. article 274 of the direct taxes law provides examples of tax crimes, articles 676 and 677 of the islamic penal code and articles 8 and 9 of the computer crimes law provide examples of criminal destruction, and the crime of destroying a retail terminal could itself be covered by recent criminal laws. however, the deviation from the general rules of destruction, the fact that retail terminals have special features, and the protection of the achievements of the electronic tax collection system led to the consolidation of one of the examples of tax evasion and criminal destruction in one article.in article 23 and its notes, two protectionist and strict approaches are seen. in the protective approach, due to the exceptional nature of the criminalization of destruction of one’s property and the protection of the taxpayer’s right to dominate his property, conditions are foreseen to protect the taxpayer, and in the strict approach, to protect the government’s right to dominate part of the taxpayer’s property and the protection of electronic tax collection processes, conditions are foreseen to be strict towards him in the criminalization and punishment process. in the present study, these two approaches are studied in comparison with tax crimes in article 274 of the direct taxes law and criminal destruction in articles 676 and 677 of the islamic penal code (ta’zirat) and 8 and 9 of the computer crimes law.result and discussionthe use of new technologies or store terminals to increase tax revenues has accelerated with the approval of the store terminals and taxpayer system law in the country, and the legislator has adopted a criminal policy in this area to protect the positive achievements of the virtual tax village in preventing tax evasion and repeating past experiences of failure to collect income tax from businesses and legal entities. article 23 of the store terminals law refers to one of the examples of tax evasion in electronic platforms under the title of destroying the store terminal itself with the intention of fraud or disrupting the country’s tax system, which implies destruction by the taxpayer as the owner of the property, and has foreseen protective such as the absence of a mental element of crime, the elimination of imprisonment in sentencing, the specific nature of the increased punishment for repeat offenses and strict approaches such as developing the characteristics of the subject of the crime, eliminating the differential approach in punishing legal entities, and increasing the severity of repeated crimes and their organized and group nature, towards the taxpayer.1.the lack of deterrence of the penal penalties stipulated in article 23 and its notes, even despite the abolition of imprisonment and the lack of legal counting of some instances of these crimes with the crimes of disrupting the economic system or corruption on earth. given the inconsistency of the policies of abolition of imprisonment with sociological and criminological foundations, the iranian taxation organization is looking for criminal responses that have a stronger deterrence and do not require the repetition of the sixth degree of punishment, as in article 274 of the direct taxes law in article 23 of the shop terminals law, with the abolition of imprisonment; because tax crimes are among the economic crimes and the lack of relativity in the punishment of tax crimes and ignoring the severity or weakness of these crimes in determining the punishment and considering a fixed punishment for all tax criminals is unacceptable. for example, a taxpayer who destroys a shopping mall to hide his multi-million-dollar income and a taxpayer who commits the same crime to hide his multi-billion-dollar income are all subject to sixth-degree ta’zir punishments other than imprisonment, which are particularly inadequate in terms of deterrence and proportionality, especially fixed-term fines. in addition, some of the examples of crimes covered by article 23 of this law, such as destruction, if committed on a large scale or in a group or organized manner, can disrupt the country’s economic system, and a more severe punishment than the fourth-degree ta’zir punishment, other than imprisonment, should be foreseen because this crime cannot be considered one of the examples of disruption in the economic system stipulated in the law on punishment of disruptors in the economic system or the subject of article 286 of the islamic penal code, and one of the examples of disruption in the economic system covered by corruption on earth, due to the lack of legal statistics.2.extension of the objections of article 19 of the islamic penal code to article 23 of the shop terminals law. one of them is the imbalance of penalties of different degrees. for example, in the case of an organized crime under article 23, a fourth-degree fine is the only penalty imposed on a legal entity, but in the case of a repeat offense, a fifth-degree fine, a permanent ban on one or more professional or social activities, and a permanent ban on public invitations to increase capital will be imposed at the same time. this is while in the case of committing economic crimes in an organized manner, the guarantee of criminal execution should be more severe than for repeat offenses. also, in the application of penalties for repeat offenses under note 1 of article 23 of the above law to legal entities, penalties of a fifth-degree fine, a permanent ban on one or more professional or social activities, and a permanent ban on public invitations to increase capital will be imposed at the fourth level, and in subsequent cases of repeat offenses, only a fifth-degree fixed fine will apply to them. therefore, by focusing on a fixed fine and its greater flexibility with other penalties, the penalties applicable in the notes of this article will not have sufficient deterrence. considering the evaluation of the aforementioned approaches to the taxpayer, the study of the challenges, and further scrutiny of the tax criminalization and punishment system, it becomes clear that the iranian tax criminalization system does not follow the logical principles governing criminalization and punishment. irregular criminalization and punishment, such as limiting the scope of criminalization by predicting the psychological element, ambiguity in the effects of recidivism, and disregarding sociological and criminological data, not only leads to distancing from the goals of tax criminalization and punishment but also poses problems for deterrence and incapacitation as the goals of punishment.