The shipping company has legal proceedings with BEND
Seaside sea shipping company about one year challenges in court the penalty in $25,9 million imposed on it by tax inspection for nezachislenie of currency in the Russian banks. The presidium of the Supreme Arbitration Court of Russia has not put an end in the conflict. Business has been sent on new consideration in arbitration court of Primorski Territory.
In August, 1995 BEND on a city the Find has checked up joint-stock company “ Seaside sea shipping company “. The inspector have found out that for the freight of courts with 1992 for 1994, and also for sold to foreign firm in 1994 the tanker “ Asia “ the joint-stock company has received $25,9 million Currency gain has been spent for loans to foreign firms, purchase of actions of the foreign companies, payment of working costs, a commission to the foreign agent and on other purposes. Thus the shipping company used the obtained currency, without enlisting it in banks in territory of Russia. It is gross infringement of the currency legislation, and in such cases of the enterprise pay 100 - the percentage penalty from the sum of the hidden currency. Therefore the deputy chief nahodkinskoj BEND in October, 1995$25,9 million Shipping company has made the decision on collecting from joint-stock company has considered such punishment unreasonable and has addressed in arbitration court of Primorski Territory.
representatives of joint-stock company have explained in court that though a gain and not was it is enlisted in the Russian bank, all taxes from the aforementioned sum have been paid, and also sold obligatory under the law of 50 % from all sum. Besides, in September, 1995 the shipping company has received from Central administrative board of currency regulation and currency control the permission to carrying out of calculations in currency with foreign agents. Thus, according to joint-stock company, it operated quite lawfully. The shipping company has doubted legality of actions of tax inspectors which, under the joint-stock company statement, at all have no right to punish the enterprise for offences in the field of the currency legislation. The claimant considers that BEND can impose penalties only for offences in the field of the taxation. As a result the shipping company asked court to cancel the penalty imposed on it.
the court has agreed with these arguments and has satisfied the claim. Besides, judges have noticed that tax the inspector was no by the rights to collect the penalty, without having received such task from bodies of currency control (for example, the Central Bank of Russia). BEND has appealed against against this decision in the second instance of court.
the inspector recognised that the shipping company has paid taxes about $25,9 million However, as they said, it insufficiently: the currency should be enlisted in the Russian bank. Time of it it has not been made, means, the joint-stock company has simply hidden the currency gain, for as penal sanctions have followed. BEND also insisted in court that had powers to punish shipping company. According to its representatives, the State Tax Service carries out under laws additional function - currency control. As to the permission available for the claimant to calculations in currency, that, by words BEND, it is not enough of it. To shipping company followed receive also the permission at Bank of Russia.
however and in this instance of court BEND has not achieved the decision to own advantage. Judges have decided that under laws only the Central Bank of Russia have the right to collect penalties as body of currency control. And the tax service is only the agent of currency control, and in this case the penalty is not included into its competence. In the following instance where BEND has addressed with the complaint, Federal arbitration court of Far East district, also have supported shipping company. Judges have noticed that the penalty is collected in case of currency concealment. However the joint-stock company did not hide this money: it has reflected them in the documents. Thus, according to court, the penalty in this case is unreasonable.
nevertheless the assistant to the Supreme Arbitration Court of Russia Oleg Bojkov has disagreed with all these decisions. It has prepared the protest which has been considered at Supreme Arbitration Court presidium. Bojkov has referred to the decree of the president of Russia on which the enterprises have no right to use a currency gain before its transfer in the Russian banks. Otherwise the enterprise should pay 100 % of the penalty which the State Tax Service of Russia also has the right to collect. The author of the protest has noticed that the shipping company had no licence of the Central Bank of Russia for carrying out of calculations in currency. Despite this shipping company used currency so, quite meaningly broke laws.
the permission received by joint-stock company, allowed to use currency only on payment of a commission to the agent and working costs. But the shipping company has spent money and for other purposes (purchase of actions, delivery of credits). Therefore, according to Bojkova, BEND had the right to consider a gain part (on which use there was no permission) as hidden and to collect the penalty. As a result the author of the protest, having paid attention to incomplete research of business, has suggested to send it on new consideration in arbitration court of Primorski Territory. The presidium of court has agreed with it.
now the shipping company has appeared in a difficult situation. The matter is that it has spent the most part of money for purchase of actions and credits. If judges assume as a basis the new decision the thesis that these expenses are wrongful, almost all sum of the penalty will be recognised by lawful.
ALEXANDER - SEMENOVA