YOU recognised the right of tax specialists to submit claims about invalidity of transactions
Competence of tax departments is established by Law N 943 - 1, including article 7. This law is not recognised by become invalid in connection with the introduction into action of the Tax code of the Russian Federation and is operating.
Absence of similar norm regarding the Russian Federation first the Tax code, according to YOU the Russian Federation, does not deprive tax departments of the rights given by Law N 943 - 1, regulating their activity. Thus the court has noticed that powers of tax departments in sphere of a recognition of transactions should be realised by the void so far as as it is necessary for performance of the problems assigned to them.
Proving the decision, YOU the Russian Federation has referred to a legal position of the Constitutional court of the Russian Federation in definition from 25. 07. 2001 N 138 - About and a recognition of the paragraph of third point 11 of item 7 of the Law of Russian Federation N 943 - 1 corresponding to the Constitution of the Russian Federation.
the Rights of tax departments are established by article 31 of the Tax code of the Russian Federation. Initial edition of a part of the Russian Federation first the Tax code installed since January, 1st, 1999, had been provided the right of tax departments to show in courts of law and arbitration courts claims about a recognition of transactions void and collecting in the income of the state of all received on such transactions.
Then the Federal law from 09. 07. 1999 N 154 - FZ “ About modification and additions in a part the first the Tax code of the Russian Federation “ the given norm the Russian Federation is excluded from article 31 NK.
It has suggested that the reference to the court of tax departments about a recognition of transactions is not carried by the void to their competence. So, in postatejnom comments to a part of the Russian Federation first the Tax code Shatalov With. D, the deputy minister of the finance of the Russian Federation, has specified that having excluded the given norm along with other of new edition of article 31 NK the Russian Federation, “ The legislator recognised that they are alien enough for tax departments and concern more likely the competence of law enforcement bodies “.
However the Law of the Russian Federation from 21 till now operates. 03. 1991 N 943 - 1 “ About tax departments of the Russian Federation “ which article 7 defines the rights of tax departments. In particular, the paragraph of third point 11 of article 7 of the Law of Russian Federation N 943 - 1 on - former provides the right of tax departments to make in court claims about a recognition of transactions void and collecting in the state income of everything received under such transactions.
Thus, the same norm the Russian Federation is excluded from article 31 NK, and in article 7 of the Law of Russian Federation N 943 - 1 is kept. Whether
So have the right to make tax departments claims about invalidity of transactions?
Opinions of arbitration courts on this question were divided.
Has supported tax bearers of FAS Severo - the Western district. In the decision from 29. 04. 2003 on business N À56 - 25714/ 02 FAS Severo - the Western district has specified that the reference of tax department to point 11 of article 7 of the Law of Russian Federation N 943 - 1 cannot be taken into consideration.
According to article 7 of the Federal law from 31. 07. 1998 N 147 - FZ “ About introduction in action of a part of the Russian Federation first the Tax code “ federal laws and other standard legal certificates which operating in territory of Russia and have not entered into the list of become invalid documents, operate in a part which are not contradicting a part first NK the Russian Federation. Article 31 of the Tax code does not allocate tax departments with the right of a presentation of claims about a recognition of transactions void, and owing to article 53 of agrarian and industrial complex of the Russian Federation state structures have the right to address with claims in arbitration court in protection of public interests in the cases provided by federal laws.
the position of FAS Severo - the Western district and after two years has not changed. In the decision from 27. 01. 2005 On business N À56 - 13804/ 04 court has repeated the conclusions. According to court, tax departments are allocated by the right to declare in arbitration courts only those claims which presentation agrees podp. 16 items 1 of item 31 NK the Russian Federation are carried to their competence. That fact that the list of claims is not closed, does not grant to tax department of the right to a reference to the court with the claim about a recognition of the transaction void as such right should be directly provided the federal law. FAS Severo - the Western district has noticed that “ now at scoping remedial pravosubektnosti tax departments should be started with priority value of the norms containing in the Tax code “.
Also the court has not taken into consideration and the tax department complaint that at removal of decisions of the courts of the first and appeal instances definition of the Constitutional court of the Russian Federation from 25 has not been considered. 07. 2001 N 138 - the Island of FAS Severo - the Western district has specified that “ The named definition explained the decision of the given court accepted before coming into force of a part of the Russian Federation first the Tax code on the basis of the legislation, operating at the moment of its acceptance “.
the Constitutional court in definition from 25. 07. 2001 N 138 - About recognised the right of tax departments to make in arbitration courts the demands providing receipt of taxes in the budget, including claims about a recognition of transactions void and about collecting in the income of the state of all received on such transactions as it is provided in item 11 of item 7 of the Law of Russian Federation N 943 - 1. But the made definition was accepted under the petition of the Ministry of Taxes and Tax Collection of Russia for an explanation of decision KS the Russian Federation from 12. 10. 1998 N 24 - P, that is the decision which have been taken out to the introduction into action of a part of the Russian Federation first the Tax code.
But many federal arbitration courts, analyzing the same norms of article 31 NK the Russian Federation and articles 7 of the Law of Russian Federation N 943 - 1, have come to an opposite conclusion: Have supported tax departments, having ascertained their right to a presentation of claims about a recognition of invalidity of transactions. Such position of courts is reflected in decisions FAS of the Moscow district from 21. 04. 2003 on business N KG - À40/ 2161 - 03, 27. 12. 2004 on business N KG - À40/ 11895 - 04, FAS Volga region district from 08. 02. 2005 on business N À55 - 1941/ 04 - 40, FAS Western - the Siberian district from 17. 03. 2005 on business N Ô04 - 1501/ 2005 (8513 - À27 - 13).
And in last two decisions courts, siding with tax departments, were guided by a position of the Constitutional court of the Russian Federation stated in definition from 08. 06. 2004 N 226 - O
the Constitutional court has once again confirmed the position stated in definition from 25. 07. 2001 N 138 - About, also has specified that position of item 11 of item 7 of the Law of Russian Federation N 943 - 1 does not contradict the Constitution of the Russian Federation. At the same time KS the Russian Federation has underlined that a question of correctness of application in those concrete affairs or other positions of the Tax code of the Russian Federation, the Law of the Russian Federation “ About tax departments of the Russian Federation “ is within the competence of arbitration courts.
In connection with polarity of accepted decisions arbitration courts and tax departments, and tax bearers, certainly, interested, what position will be selected by the Supreme Arbitration Court. And such decision has taken place.
Thus, and the Constitutional court, and YOU the Russian Federations have confirmed powers of tax departments regarding a presentation of claims about a recognition of transactions void. The unequivocal position of the higher judicial instances gives additional arguments to tax departments and is capable to level developed arbitration practice.
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