New record on Tatyana's day
A record number of lawyers (349) participated in the webinar held by the Chamber of Advocates of the Samara Region on January 25, 2023.
PASO President Tatyana Dmitrievna Butovchenko devoted her speech to topical issues of disciplinary practice. Traditionally, summarizing the disciplinary practice of the bar association, the speaker focused the listeners' attention on examples of unacceptable behavior of lawyers and ways to protect lawyers from unfounded claims.
She spoke about the increasing number of complaints from investigators against the actions of lawyers.
In the opinion of the PASO President, the position of a lawyer, who pointedly ignores the requests of other participants in law enforcement, for whom “there is only me and my principal, and the problems of the investigation are the problems of the investigator”, is obviously losing. The requirements of the Code of Criminal Procedure of the Russian Federation are the same not only for law enforcement officers, but also for lawyers, Tatyana Dmitrievna emphasized.
According to her, the successful 20-year experience of the Chamber of Advocates of the Samara Region proves in the best way that the solution to any problem should be sought not in opposition to other participants in the law enforcement system, but in constructive interaction with them.
For example, only through negotiations at a high managerial level, it was possible to save lawyers from many hours of queues in the pre-trial detention center, work on improving the conditions for lawyers to visit clients in a pre-trial detention center by electronic appointment continues, and there are positive developments.
It was also possible to achieve repayment of the debt from the Judicial Department, the bodies of the Ministry of Internal Affairs for the remuneration of lawyers by appointment, also thanks to difficult negotiations, and by no means threats and the ability to issue ultimatums.
Tatyana Dmitrievna reminded the audience that the Law obliges a lawyer not only to be present at investigative actions, but to participate in them. The results of this participation should be reflected in the protocols of investigative actions. If the lawyer has not signed the protocol of the investigative action, the Qualification Commission will see in his behavior the composition of a disciplinary offense.
It is not permissible for a lawyer to delay the time for familiarization with the case. On the recommendation of PASO, in 1 working day, a lawyer is able to study 3 volumes or 2 volumes with accounting documentation. Familiarization with 50 pages of the case file per day, and then defiantly leaving the pre-trial detention center certainly does not guarantee the highest level of legal assistance.
A lawyer has the right to become a witness in the case of his client only with the written consent of the principal, which releases the lawyer from keeping lawyer secrets. If such permission is obtained in writing, the lawyer must disclose the information that he has, only in the interests of the client.
Unfortunately, the PASO disciplinary practice has a pattern of behavior of a lawyer, who not only gave evidence proving the guilt of her client, but also filed a motion to change the measure of restraint for the client from house arrest to detention. Such actions can be regarded only as one of the most serious disciplinary offenses of a lawyer.
Ignorance of the procedure for refusing a defense counsel and replacing a defense counsel often leads to undesirable consequences for a lawyer. For example, a court notice of non-attendance at a hearing sent by e-mail on the day of the hearing is an inappropriate method of notification.
Judicial practice shows that lawyers by appointment are often not exempted from participation in the case, even if the client has a lawyer by agreement. An appointed lawyer is obliged to continue working until an appeal is filed, and only upon a written application of the client he has the right not to do this.
The speaker drew the attention of the audience to a dangerous trend that appeared among lawyers: visits to the pre-trial detention center without notifying the investigator and properly filling out warrants.
As a rule, in such cases, the agreement is concluded in favor of a third party, the client does not know who and under what conditions concludes the agreement, he refuses the lawyer, who, instead of developing a defense position, insists on changing the testimony in favor of another participant in the case, or is interested testimonies given by him in relation to accomplices. Such a situation is fraught with criminal prosecution already in relation to a lawyer: there is already one such precedent: the lawyer was charged under part 3 of Art. 327 of the Criminal Code of the Russian Federation.
T. D. Butovchenko called on lawyers to intervene in the case in the manner prescribed by the Code of Criminal Procedure of the Russian Federation, only after notifying the body in whose proceedings the case is.
The PASO President tried to convey to her colleagues the postulate that the activities of lawyers' self-government bodies are not aimed at increasing the number of disciplinary proceedings, but at warning lawyers against possible mistakes, because the efficiency of each lawyer affects the overall result. Such a measure of corporate influence as Caution deserves a positive assessment. We are not talking about disciplinary proceedings, the lawyer receives an indication of his “incorrectness”, makes adjustments to the work. The incident is considered settled,” explained Tatyana Dmitrievna.
The webinar attendees agreed that every lawyer needs to know the rules and procedure for considering disciplinary proceedings, be able to write an explanation, exercise the rights and perform the duties of a participant in disciplinary proceedings. To the question whether a questionnaire is needed in cases by agreement, T. Butovchenko answered in the affirmative, since this is an irrefutable guarantee of security for a lawyer.
Due to the fact that the limited time of the webinar did not allow the speaker to answer all the questions of interest to the audience, it was decided to hold another training event in the near future in the form of a blitz webinar.
Follow the information on the PASO website.
In the second part of the webinar, Marina Yuryevna Zhirova, PASO lawyer, Ph.D. in law, associate professor, tax consultant, spoke. She briefed colleagues on tax law reforms and key tax trends for 2022-2023. The speaker managed to present difficult-to-perceive material intelligibly, with examples from his own practice.
According to M. Zhirova, the analysis of official statistics shows that the Federal Tax Service has made a huge breakthrough in the effectiveness of its activities, which is largely due to the introduction of information technology. For example, the average amount of additional taxes charged for one on-site inspection amounted to 70 million rubles.
In cases related to business splitting, for the 3rd quarter of 2022, 89% of decisions were made in favor of the Federal Tax Service. The speaker shared her experience in this category of cases. According to her, as evidence that the accusation of breaking up a business in order to avoid paying taxes is illegal, the courts take into account the presence of its own staff for each enterprise; different types of activities; the presence of third-party contractors; independent bearing of expenses by each participant and the availability of their own material resources; economic feasibility; calculation of actual tax liabilities.
According to the speaker, one should not underestimate the capabilities of the tax service in the fight against unofficial wages. The software of the Federal Tax Service allows real-time monitoring of the risk score of companies, which, for example, is calculated only for the self-employed according to 8 indicators: duration of work, the only source of income, violations of 422-FZ, group transitions, the frequency of payments, salary signs, mass income registrations , mass registrations.
Marina Zhirova told the participants of the webinar about all legislative innovations: UNT (single tax payment) and UNS (single tax account), as well as the concepts of balance: positive (overpayment), zero and negative (debt). The accepted date for reporting is the 25th and the tax payment date is the 28th. The speaker drew the attention of her colleagues to the fact that this actually introduced additional reporting, since making a payment without prior notice is regarded as a delay in payment.
However, according to M. Zhirova, lawyers should not panic, since the legislator has provided for a transitional period for 2023. During 2023, you can choose (without notifying the Federal Tax Service):
Pay the ETP (in one payment) and submit notifications to the inspectorate at the place of registration no later than the 25th day of the month in which the deadline for payment of relevant taxes (advance payments, fees, contributions) is set, reports on which have not yet been submitted or are not being submitted;
Issue only payment orders for the payment of a specific payment indicating the CCC, i.e. pay taxes and contributions in the old way. Although in this case, the money transferred will form the overall balance of the UNS.
The speaker recommended choosing the second way.
Marina Zhirova answered all questions in detail, colleagues thanked the speaker for useful information, willingness to share it and clear presentation.