THE MOST FREQUENTLY ASKED QUESTIONS
1. Problem: the transport agency in 2002 by the order of a foreign firm executed shipment placed under a customs treatment of export, from a settlement arranged in terrain of Russia, in settlements arranged in terrain of a foreign state.
Whether the firm in that case has the right to esteem implementation of service on haul of the goods (both on terrain of Russian Federation, and on terrain of a foreign state) how implementation of service on export with application to the cost of services of the bet 0 % under the value-added tax?
Whether the firm needs to conduct the separate count of the proceeds and costs, bound with transportation of export cargos obtained at haul on terrain of Russian Federation and by limits for application to the cost of exported services of the bet of 0 percents under the value-added tax?
The answer: transportation of freight, without dependence from that, on what terrain of the state she implements, is unified transportation process, directional on achievement of the unified purpose, integrated single will.
Pursuant to the subitem 2 of point 1 of the article 164 of a TC of Russian Federation the volume of services as a whole relating export services in transportation of export cargos, is subject to taxation on the added value under the bet of 0 percents.
By the called norm is not established, that the value-added tax under the bet of 0 percents taxs only that part of the proceeds, which one is obtained by a carrier for services in tracking, haul, loading, overload of export cargos on terrain of Russian Federation, and outside terrain of Russian Federation the cost of services is not subject to taxation.
According to point 3 of the article 157 of a TC of Russian Federation of a rule(situation,position) of this norm are applied with allowance for of point 1 of the article 164 of a TC of Russian Federation.
Therefore, the necessity of the separate count of the proceeds and costs come on services in haul of export cargos on terrain of Russian Federation and behind its(her) limits, for application to the cost of exported services of the bet under the value-added tax of 0 percents and tax deductions misses.
The indicated stand is affirmed by consideration of business by arbitration court: the order FAS of Northwest district from 31.01.2003 on business ¹À42-6964/02-Ñ4.
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2. Question: whether there is a temporary limitation on implementation of return (offset) of the unduly paid taxes and charges?
The answer: the direct limitation does not exist.
There are following ways of usage of the sums of the unduly paid taxes and charges:
The return and offset, thus offset is possible on account of laying ahead payments; on account of fulfilment of the responsibility on tax payment and charges (current payments), arrears and fine.
Each of ways of usage of the unduly paid taxes and charges has features of a procedure of their implementation, for example for offset on account of laying ahead payments the application of the tax bearer and solution of taxing authority is necessary, and the application form be not established (can also oral); for return - only written application, and the return implements only after offset of the sum of an overpaid on account of arrears and fine.
The general condition for implementation of return is the concurrence of the budgets, in which one there was an overpaid and from which one are return, though the kinds of taxes and charges can not coincide.
Item 8 of an item 78 of a TC of Russian Federation three-year term on submission of the application about return of the sum of the unduly paid tax is established from the date of its payment. For submission of the application, instead of effecting of return.
For submission of the application about offset and realization of offset term is not established.
The taxing authority frequently extensive expound rules of item 8 of an item 78 of a TC of Russian Federation, limiting not term on submission, and term on realization of return. Such behavior contradicts the norms of the legislation about taxes and charges.
Other norms(standards) about limitation of the indicated terms do not exist.
Thus, the legislation on taxes and charges does not contain straight lines of limitations of terms of realization of return of the unduly paid taxes and charges, under condition of observance term on submission of the application.
However, in a number of cases implementation be right on return can is put depending on holding other terms established by the legislation of Russian Federation, for example of trimensual term on the reference in arbitration court with the application for an admission of the non-standard legal act invalid, solutions and operatings (sleeping) wrongful (item 4 of an item 198 APCS of Russian Federation), term on the reference in court with the petition to operatings of a state organ, institution of local government, entity, firm and their affiliations, public organization, affiliation or official breaking it(him) of the right and freedom (an item 5 Laws of Russian Federation from 27.04.1993 ¹4866-1 « About the appeal in court of operatings and the solutions, derelict the right and freedom of the citizens » etc.
About judiciary practice see Order FAÑ
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3.In what instances and in what manner may tax authorities appeal to court to enforce collection of taxes (charges ) on legal entities ?
According to the general rule, taxes, charges and fines are collectible by tax authorities from legal persons in an indisputable manner out of the funds held on bank accounts, either collectible out of other assets.
However, according to subcl. 2) cl. 1, article 45 of the RF Tax Code, " tax may not be collected from an organization in an indisputable manner, if the tax liability is based on the tax authority changing:
1) Legal treatment (classification) of bargains entered into by the taxpayer with the third persons;
2) Legal treatment (classification) of the status and nature (type) of the taxpayer's business ";.
Besides, if the tax authority decides to collect the tax prior to the expiry of 60 days which is the deadline established for payment of the tax as indicated in the notice to pay tax, collection of tax may be enforced by court (cl. 3 of article 46, RF Tax Code).
Neither the Code, nor the Law "On tax authorities of the Russian Federation "dated 21.03.91 No. 943-1 contain the rules to establish the manner and the deadlines for filing such sort of claims against corporate taxpayers. The
judicial opinion has not been developed on the said issue as yet.
To fill in this gap in the Tax Code it is necessary to apply either1) a similar rule of law method, or
2) a similar law method. Clause 4, article 11 of the RF Arbitration Procedural Code also directly prescribes to court to be governed by the similar rules of law in case if they appear to be missing when the court decides on the dispute. On the similar issue (application of periods of limitation to tax legal relations) Supreme Arbitration Court of the Russian Federation in its Information Letter of 31.05.94 under No. C1-7/OP-373 advised already on its opinion with regards to this issue - it is required to be governed by a similar rule of law method. It means, that for the purpose of filling the gaps in Tax
Code it is required to apply the rules of law of the same RF Tax Code which are similar and close as per their meaning and contents.
Thus, it is possible to make a conclusion that the term within which a tax authority has the right to file such a claim, should not exceed 6 months as of the date of the expiry of the deadline established for payment of tax as indicated in appropriate notice (similar to the rule in cl. 3, article 48, RF Tax Code when collection of taxes on individuals is enforced by court).
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4. Legal entities are liable to tax under the Tax Code. At the same time, under article 89 of the Tax Code, tax authorities may inspect branches of legal entities. What implications arise in this respect for the legal entity itself ?The question is interesting as it deals with the problem of the part and the whole ratio with reference to tax liability.
This problem has been many times discussed in the law reviews of the Supreme Arbitration Court of the Russian Federation. Thus, in particular, it is established by judicial practice that those tax infringements revealed by tax inspections on particular business transactions may not serve the basis to conclude that the taxpayer in question has understated the incomes liable to tax on profit for the accounting period.
The similar approach should apply for the purpose of tax infringements revealed in performance of a separate division, as tax liability applies to legal entities only, then the conclusion about non-payment or partial payment of tax may be reached only after checking, whether tax infringement revealed on the base of the review of the branch performance affected the amount of tax payable by the legal entity as a whole ( together with its branches), i.e. taking into account the summarized performance results of all of its separate subdivisions and types of business.
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5. What procedure is established for refunding overpaid customs duties and levies?
Customs duties and levies, being a part of the relations regulated by the customs legislation, make a part of the tax system. Therefore, article 2 of the Russian Federation Tax Code says that regulations of Tax Code apply to customs relations, if it is so expressly provided in the Tax Code.
Federal Law of 09.07.99 No. 154-FL introduced changes into articles 78 and 79 of the RF Tax Code to the effect that regulations of these articles shall apply to customs duties and levies. Therewith customs authorities have been vested the same rights and responsibilities which are referred in chapter 12 of the RF Tax Code to the rights and responsibilities of tax authorities.
Hence, for the purpose of considering the issues related to refund of the overpaid amounts of customs duties and levies, and also for the purpose of appealing the decisions, acts or omissions of customs authorities it is required to be governed by both the regulations of the RF Tax Code, and the RF Customs Code.
Article 78 of the RF Tax Code says that refunding of the overpaid amounts of taxes should be effected not later than within a month as of the lodgment of the application for such amounts be refunded.
Customs legal relations have their own specifics and the special procedure is established for refunding of the overpaid amounts of taxes which is stipulated in article 78 of the RF Tax Code, and this procedure does not reflect all procedural features concerning customs legal relations. Therefore, the procedure of the refunding is regulated by provisions of Chapters 56, 57, 58 of the RF Customs Code and legal acts of the RF General Customs Committee with adherence to regulations of the RF Tax Code.
The procedure of refunding the overpaid amounts of customs duties and levies is as follows:
The payer shall lodge his application for the overpaid amount be refunded to the same customs office into which accounts the claimed amounts have been earlier transferred.
It is provided in items 5 and 10 of "On refunding of the overpaid or excessively collected customs duties and levies " approved by the order of the RF General Customs Committee dated 28.07.95 No. 01-20/12098, that the power to take decisions on refunding the overpaid amounts of customs duties and levies is vested in a custom office deputy head who is responsible for economic issues.
Under section 3 of the Appendix to the Instructive Letter of the General Customs Committee of 31.05.2000 No. 01-06/14407 " About application of the provisions of Part 1 of the RF Tax Code by customs offices taking into account the changes made into same by the Federal Law dated 09.07.99 No. 155-FL " it is provided that the said amounts shall be refunded within a month.
The date of lodgment of the said application shall be understood as the date of its registration with a customs office concerned.
Under Section 3 of Appendix to the Instructive letter of the GCC dated 31.05.2000 the following grounds for denial of the refund are provided: " if the written application of the payer lacks sufficient evidence to substantiate the refund, or the required documents are not enclosed to the request, or such request is not grounded under the current legislation ".
Under the said circumstances customs offices are obligated not later than within two weeks to advise the payer on the impossibility of the refund.
If a payer's request is denied on the basis of such refund is not provided by the current legislation, as it appears to be the case in the opinion of a customs office, then it is necessary for a payer to appeal against this illegal decision to a higher customs office.
As it follows from the previous analysis, the regulations of the RF Customs Code and RF Tax Code appear to be similar with regards to substantive law on refunding customs duties and levies (similar in manner and deadlines). Altogether, there are differences in the procedural aspect when disputes arise with customs offices.
Firstly, it is required to file the initial complaint by the deadline established under the RF Customs Code. The initial complaint against illegal decision shall be filed also in the event of a payer's application for refund has been satisfied partially.
The said complaint shall be filed within three months as of the date of the notice to payer about the decision of the customs office, and in the event of the omission (non-act) of the customs office in response to the application, the complaint shall be filed within the same term upon expiry of three months as of the date of filing the application.
A month term is established under the general regulation for consideration and deciding on the initial complaint. A higher customs authority may extend the term of consideration, but not in excess of two months.
In the event if the initial complaint is not satisfied or the decision of the customs office is let to stand, either no decision is taken on the complaint by the fixed deadline, the payer is free to take advantage of the right of secondary appeal, i.e. to file a claim with Arbitration Court or with General Prosecutor's office.
For the purpose of filing his claim with arbitration court, a payer should retain the evidence of his compliance with the pre-trial appeal procedure, including his registered application to the customs office and the complaint to higher customs authority, and if any decisions have been rendered by the customs office a payer shall retain the copies of such decisions.
Article 22 of the RF Arbitration Procedural Code together with Section 13 of the RF Customs Code entitles a payer to appeal both the unstatutable acts of the customs authorities taken in response to the application for refunding overpaid amounts, and actions or omissions of customs authorities.
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6. Whether it is lawful to take into account negative differences in the amounts for the purpose of calculation of profit tax liability?
Under article 317 of the RF Civil Code it is admissible to pay the due and payable amounts in rouble equivalent of appropriate amounts in currency or in conventional units.
In this particular case the size of the civil-law obligation is calculated in Russian currency on the date of payment. Accounting records should reflect the liability in RF roubles.
The differences in amounts arise when settlements are effected in roubles at appropriate official currency exchange rate, and such differences are caused by the time gap between the delivery and payment of goods.
In pursuance to article 11 of the Federal Law " On accounting " dated 21.11.96 No. 1129-FL, valuation of property which is purchased for the value received, shall be effected by summarizing the actually incurred costs of it's purchase.
In pursuance to Federal Act of 31.12.1995 No. 227-FL " pending adoption of the Federal Act as provided by article 4 of the Law "On profit tax " dated 27.12.1991. N 2116-1 (edition of 04.05.99), for the purpose of calculating of taxable profit, it is required to be governed by the currently effective procedure for determination of composition of costs of manufacture and sale of goods (works, services), included into prime cost, and for formation of financial results which serve the basis for taxation of profit ".
Currently this procedure is contained in the Decree of the RF Government "On composition of costs " dated 05.08.92 No. 552, and also in the legal acts issued by the RF Ministry of Finance and by the RF State Taxation Service on the basis of federal laws and in keeping with the instructions of the RF Government.
According to the Provision "On composition of costs " dated 05.08.92 No. 552:
"Prime cost of goods (works, services) represents by itself a valuation of natural resources, raw materials, supplies, fuel, power supply, fixed assets used for manufacture of goods (works executed, services rendered ) and also other costs and expenditures incurred for their manufacture and realization ".
Instruction of the RF State Taxation Service dated 10.08.95 No. 37 "On procedure of calculation and payment of profits of businesses and organizations to the state budget " establishes that for the purpose of taxation the other- than sales profits (costs) included into the prime cost of goods (works, services) shall be accepted in the amounts calculated in compliance with the rules of accounting on the base of financial results.
Rules of Accounting 9/99 and Rules of Accounting 10/99, effective January 1, 2000, conclusively resolved all existing discrepancies with regards to the procedure of reflecting the differences in the accounting records, by referring them to operational incomes or expenses, and the earlier effective procedure of referring the differences to other extra-realizational incomes (expenditures) has been cancelled.
Conclusion: both negative and positive differences in the amounts should be reflected in the accounting records for the purpose of taxation of profit.
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7. The taxpayer leases premises. He pays communication services, power, water and heating supply on the base of the bills submitted by the landlord. The tax inspection department maintains the opinion that the deals accomplished between the taxpayer and his landlord shall be invalidated according to the RF Civil Code and in pursuance to particular decrees issued by the RF Government regulating the manner of concluding agreements with such services providers. Thus, there are no reasons to include the incurred costs into the prime cost of goods and there are no reasons to claim recovery of VAT from the state budget on the said costs. How to revise the terms and conditions of the lease agreement for the purpose of communication services and the facilities costs be validly included into the prime cost of goods by the tenant?
The most simple way would be to indicate the appropriate amount of rentals to be sufficient to cover the landlord's expenses incurred for such services which will be paid by landlord to such services providers under the service agreements concluded with them. However, this option is not always convenient for a landlord, since it is impossible to foresee future expenses and there is a probability of losses to be incurred from such leased property. Apart from that, it may not be expedient for a landlord to increase rentals as this increase would entail his tax liability to be increased on some indirect taxes.
Another option would be to proceed on the base of article 545 and cl. 2 of article 548 of the RF Civil Code which implies that a landlord upon provider's consent may sell power ( gas- electricity, -water, supply, etc.) to a tenant. However, under many reasons this option may not be always implemented.
Generally, this problem is interesting from the prospective of correlation between the civil law and the tax law. It is established in cl. 1, article 11 of the RF Tax Code, that institutes, definitions and concepts of civil law being used in Tax Code shall be used in the same meaning as they are used in Civil Code. It is worth noting, that the said provisions relate to the definitions and terminology only, but they do not apply to the manner of determination of taxable incomes and payment of taxes.
The above question exactly relates to the determination of income tax liable incomes which shall be accessed on the basis of regulations contained in Law "On income tax applied to incomes of businesses and organizations…" and "Regulation on composition of expenses incurred for production purposes…". Analysis of the provisions contained in the said Regulation enables us to reach the conclusion that to validly include the said expenses into the prime cost of goods, the taxpayer has to comply with the following two main conditions:
the expenses shall be incurred for production purposes as provided in Regulation;
the expenses shall be duly acknowledged by documents.
The opinion of the tax authorities on the said question is based on the provision that payment of communication services, power and water supply and heating shall be effected solely under direct agreements signed with suppliers of such services, otherwise the provisions and regulations of the Civil Code and the Government with regards to the manner of entering such agreements with such suppliers are not complied with. Therefore, the deals shall be null and void and no reasons exist to refer such incurred expenses to the prime cost of goods.
Altogether, it should be noted, that neither the Law " On profit tax", nor " Regulation on composition of production costs… " do not establish any possibility to refer the said expenses to prime cost of goods depending from validity of the deal in terms of Civil Law rules and regulations. Moreover, the Civil Code regulations in pursuance to cl. 3, article 2 of the RF Civil Code, may not be applied for the purpose of settling disputes with tax authorities on the subject of referring expenses and costs to prime cost of goods ( except for the instances when there are any suspicions with regards to the validity of the taxpayer's documents, i.e. their forgery, misrepresentation, etc.).
Detailed argumentation in the dispute with tax authorities on the said issue is contained in our website in section titled "Arbitration practice".
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8. What portion of business travel expenses should be included into the prime cost of goods (works, services) for taxation purposes ?
Article 4 of Law "On tax on incomes of businesses and organizations" dated 27.12. 91, No. 2116-1 in its edition effective prior to 31.12.95, says that "Costs included into prime costs of goods ( works, services) shall be determined in compliance with Regulation on composition of production costs and costs of sale of goods ( works, services) which are included into prime costs of goods and on the manner of formation of financial results taken into account for the purpose of taxation of profits, such Regulation should be approved by the Government of the Russian Federation as agreed upon with the Supreme Council of the Russian Federation ".
Currently such manner referred above (of financials results formation ) in accordance with Federal Law of 31.12.95 No. 227-FZ, shall be understood as Regulation issued by the RF Government 05.08.92 under the No. 552 " On the approval of Regulation on composition of costs…." which was agreed upon with the RF Supreme Council as required by law.
Having reviewed the current RF legislation on taxes and charges we may conclude that those standards and limits of business travel expenses allowed to be included by businesses into their prime cost of goods ( works, services) for taxation purposes, have been wrongfully established by the RF Government, because Decrees of the RF Government dated 26.02.92 under No. 122 and dated 18.04.92 under No. 262, and also Order of the RF Ministry of Finance dated 13.08.99 No. 57 were issued with abuse of power and in violation to the procedure established for issuing such acts. These decrees and the order have not been agreed upon neither with the RF Supreme Council, nor with the State Duma which is the assignee of the Supreme Council.
Thus, all business travel expenses which have been acknowledged by documents and incurred for production purposes, shall be referred to the prime cost of goods without any restrictions.
This explanation contains the position which, if the same is defended in the dispute with the tax inspection, may be a success. However, as normally occurred in the current judicial practice related to the business travel expenses, such argumentation has not been ever used by taxpayers as yet. Therefore it is not expedient to use such argumentation for the current and future accounting periods. This argument of defense may be used rather in a dispute arising in court on the subject of appealing against the decision rendered by a tax authority for bringing a taxpayer to tax liability.
The above issue is also related to a taxpayer's right to refer the amounts of VAT payable on business travel expenditures in excess of the established limits to VAT-related settlements with the state budget. It should be noted in the above connection, that Law " On VAT" of 06.12. 91 under No. 1992-1 does not contain such limitation, therefore, various explanations received from tax authorities and from the RF Ministry of Finance on the above issue shall not be legally valid.
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9. According to Law “ On value-added tax ” the following three types of VAT are provided: VAT paid to suppliers, VAT imputed on proceeds generated from sales of goods, VAT paid to the state budget as a difference between the amounts of the two previously mentioned VATs. In this connection the following questions arise with reference to articles 78 and 79 of the Tax Code, as to what is specifically understood by the amount of VAT recoverable from the state budget or to be set-off as tax loss-carry forward or arrears?
This is a pressing issue, as according to different estimations of various experts, VAT amounts make from 50 to 60 percent of total taxes, duties and levies collected and paid to the state budget. Therefore, the RF Ministry for taxes and charges attaches its close attention to the issues of VAT refundable in whatsoever form to taxpayers.
Actually, the RF Law “On value added tax ” of 06.12.91, No. 1992-1 provides for three independent stages of assessing VAT liability, specifically:
imputation of tax on proceeds generated from sale of goods (works, services), and also on some other taxable incomes (for example, importation of goods onto the territory of the Russian Federation, some kinds of incomes referred to other-than sale proceeds but still liable to taxes);
imputation of tax actually paid to suppliers of goods ( works, services) when expenditures incurred on such goods ( works, services) are included into prime cost of such goods ( works, services);
imputation of tax payable to the state budget, as a difference between the amount of tax charged on sale proceeds and the amount of tax actually paid to suppliers.
One and the same term "tax" is used in the Law for all three stages referred above. Moreover, it is also established by the Law, that in the event if the amount of tax paid to suppliers of goods (works, services) is found to be in excess of the amount of tax imputed on sales of the taxpayer's produced goods (works, services), the arising difference is subject to be offset to the account of forthcoming payments or shall be recovered from the state budget to the taxpayer within 10-days as of the date of receipt of appropriate calculation sheets by the tax authority (clause 3, article 7 of the Law).
Usually disputes arise on the following main bases:
VAT credit denied by tax authorities;
refusal to set off or refund “entry” VAT amounts (paid to suppliers of goods (works, services);
refusal to set off or refund overpaid VAT amounts;
refusal to refund overcharged VAT amounts;
refusal to charge interest on recoverable amounts of overpaid or overcharged tax.
On 01.01.99 Part I of the RF Tax Code came into force. In the provisions of articles 78 and 79 as well as in other articles of the Law such definitions as “set-off of tax ” and “tax refund ” are used. However, a special attention should be paid to the fact that the provisions of these articles deal only with those amounts of taxes which are directly paid to the state budget (see cl. 2, article 45 and cl. 3 article 58 of the RF Tax Code).
In such a way, for the purpose of maintaining disputes with tax authorities on VAT-related issues taxpayers should correctly identify the origin of the claimed amounts and applicability of appropriate rules of tax legislation in each particular case.
The more detailed information on the one of the topics raised in this inquiry ( interest chargeable on tax refund overdue ) is available on our web site in section “Arbitration practice ”.
Top10. In mass media some publications that the tax from sales is established in Moscow with infringement of the existing legislation have appeared. In this connection there is a question on legitimacy of its calculation and payment from 01.01.02.
The legal analysis allows to draw the following conclusions:
- Payment of the tax by the tax bearers realizing the goods to physical persons in territory of city of Moscow, since January, first, 2002 becomes obligatory as the given tax is established by the federal legislation, and is commissioned by a legislature subject the Russian Federation according to the competence allocated to it on an establishment of the rate of the tax, about its payment and the reporting;
- The law of city of Moscow " About the tax from sales " from 09.11.-1 does not contradict the Tax code, the Law of the Russian Federation " About bases of tax system in the Russian Federation ", is accepted and published according to the legislation (it is published in ¹ 48 weekly journals " Tverskaya, 13 ", gone on sale 28.11.01);
- If there are contradictions in the legislation under the given tax it is norms directly chapter 27 of the Tax code commissioned by the Federal law " About modification and additions in a part of the second Tax code of the Russian Federation and article 20 of the Law of the Russian Federation " About bases of tax system in the Russian Federation " from 27.11.01 ¹ 148-FZ.
Contradictions of the Tax code regarding an establishment about calculation of the tax from sales are well-known to experts are contradictions concerning object of the taxation and tax base, as:
- Such object of the taxation (realization of the goods) is already stipulated for the tax to the added cost (and for the excise goods and the sum of the excise), is included in tax base under the tax from sales.
Thus, it is available the fact of the double taxation. That in the text of the code about the tax from sales there is a little bit other formulation of object of the taxation, namely " operations on realization... ", does not change an essence of a question.
We believe, that the specified contradictions and uncertainty of the federal legislation concerning the given tax will result in the manipulation of interested persons in the Constitutional court of the Russian Federation with the appropriate complaint and the request for check of Chapter 27 of the Tax Code to conformity of the Constitution. Consideration holding earlier in the Constitutional court of a question of constitutionalities of the tax from sales which collection till 01.01.2001 was caused by the Law of the Russian Federation " About bases of tax system in the Russian Federation " and acts of some subjects of the Russian Federation, allows to hope on successful issue of a suit in court. This is promoted also by that fact, that the legislator of a federal level, accepting the new chapter of the Tax Code about the tax from sales, and has not followed the instruction of the Constitutional Court expressed by it in the decision from 30.01.2001" 2 in regarding elimination of uncertainty in questions of object of the taxation under the given tax.
11.In office of our organization the expert of federal tax police has come and has handed over the general director the requirement in which that we are obliged to give him the information on activity of our old and constant contractor on business for the period since 1998 on present time is specified. Thus he has referred that such right is given to him the Tax code, and we are obliged to give out all documentation available at us on the partner. Whether we have the right to give up to him?
From coming into force of a part of the first Tax code of the Russian Federation bodies of tax police have lost the right on realization exit or cameral tax checks.
At the same time, according to item 5) item 2 of an item 36 of the Tax code at presence of the sufficient data indicating attributes of a crime, the right to carry out check is given to bodies of tax police according to the legislation of the Russian Federation.
Such act on the basis of which the tax police has the right to carry out other checks which are distinct from tax, is the Law " About operate - search activity " (further under the text of "OSA"). On the basis of this law the tax police has the right to carry out operative - search actions which list is determined in an item 6 of the specified law. At this list there is a right of research of subjects and documents, than and officials of tax police use frequently.
Besides according to norms of the Law " About federal organs of tax police " the last have the right to receive gratuitously from any organizations the information. It is necessary to notice, that the law does not specify, that in this case the organizations are obliged to represent any documents. Hence, the tax bearer will be right, if will specify at the official of tax police about what particularly information last is interested, and the law will be observed, and if organ of tax police all the same will try to receive in the order documents, it is necessary to him to observe a number of additional formalities (motivated decisions about withdrawal of documents drawing up of inventories, the invitation understood etc). In this case will give it in the written or oral form on its own behalf.
However, the law " About OSA " does not suppose any use by supervising bodies of such rights. First, in an item 7 of the given law the bases for realization of OSA are precisely determined, namely:
1) attributes of the prepared, made or perfect illegal act, and also about persons, its preparing, making or made if there are no sufficient data for the decision of a question on excitation of criminal case;
2) events or the actions creating threat of the state, military, economic or ecological safety of the Russian Federation;
3) the persons disappearing from bodies of inquiry, consequence and court or running from criminal punishment;
4) persons, without a message disappeared, and about detection of the unidentified corpses.
Besides according to Order Federal Tax Police the Russian Federation from 25.06.2001. ¹ 285 bodies of tax police have the right to carry out checks only on the basis of the written decision of the chief of body of tax police or its assistant, supervising OSA. Apparently, such decision to the tax bearer did not entrust.
Further. From the submitted Requirement from 02.10.01. ¹ 2/1/1-10708 follows, that it is signed by the unauthorized person, i.e. the deputy chief of operative management, instead of it or the chief Moscow Department of Federal Tax Police.
According to mentioned Order of the Federal Tax Police of Russian Federation from 25.06.2001. ¹ 285 out check can be carried only for the expired tax periods established for separate taxes. In this connection the formulation of representation of documents " with 01.07.98. on present time " sees uncertain.
Thus, there are bases stipulated by the law to challenge legitimacy of actions of officials Moscow Department of Federal Tax Police in Office of Public Prosecutor or in court. But before the decision of such question it would be more expedient to take advantage of norms of an item 5 of the law " About OSA " and, being based from the above-stated legal analysis to request in writing of the head Moscow department of Federal Tax Police the bases for a direction of their employee with the requirement about granting documents. In inquiry also it is expedient to specify, that after the expiration of 2 months the body of tax police is obliged to draw up a statement checks, having specified in it the decision of a question on excitation of criminal case or in refusal in excitation of criminal case.12. Our organization is registered on the territories, having status of region of the Far North. To workers of the organization are paid monthly compensation charges under rates of the regional factors authorized by local authority. Tax inspection believes, that the part of payments on factors should is charged to net profit as the rate of factors existing in area exceeds the size of the rate authorized even 05.03.60. The decision ¹ 298/8 State committees on questions of work and a wages at Council of Ministers of the USSR and Secretary of the All-Union Central Council of Trade Unions. Whether probably to oppose tax body any arguments?
Really, all numerous explanations of the Ministry of Finance of the Russian Federation and the Ministry of Taxes and Tax Collection of the Russian Federation consist that:
- According to the law of the Russian Federation " About the tax to profit of the enterprises and the organizations " and the Tax code the expenses accepted with a view of calculation of the taxable profit, should be adjusted by the federal act;
- As in the performance of the Law of the Russian Federation " About the state guarantees and indemnification for the persons working both living in regions of the Far North and equal to them districts " from 19.02.93. ¹ 4520-1 legislature of the Russian Federation till now does not establish rates of regional factors now the rates established earlier in the centralized order by statutory acts of the USSR or decisions of the Government of the Russian Federation concerning separate districts and regions should be applied to the purposes of the taxation.
At the same time, we believe such conclusion not indisputable.
At occurrence of tax disputes it is expedient to apply accurate information of the legislation on taxes and tax collections. So, in particular, item 7 " Regulations about structure of expenses on manufacture and realization of production (works, services), included in the cost price of production (works, services), and about the order of formation of the financial results which are taken into account at the taxation of the profit ", determines literally the following:
" In structure of expenses for a payment are included:
….
The payments caused by regional regulation of a payment, including: payments on regional factors and factors for work in the deserted, waterless and high-mountainous districts, made according to the current legislation … ".The Literal sense of the given norm consists that any legislation regulating a payment including first of all Labor Code concerns to "current legislation". According to its norms granting of guarantees and indemnification to workers is a duty of the organization - employer.
The constitution of the Russian Federation is the act of direct action. It agrees the item 1 of an item 72 of the Constitution questions of the labor legislation are in joint conducting the Russian Federation and its subjects. Hence, if at a federal level the part of powers on regulation of a payment is handed to the subject of federation its legislature will have the full right on such regulation.
The Decision of Council of Ministers of RSFSR from February, 4, 1991 ¹ 76 " About some measures on social and economic development of areas of the North " to representative bodies of subjects of the Russian Federation delegates the right on an establishment of the sizes of regional factors within the limits of maximal on their territory maximal and minimal rates. Hence, accepting the act on the specified question, the representative body of the subject of the Russian Federation operated in exact conformity with the Constitution and within the limits of the competence, certain to it federal authority. Acknowledgement of such conclusion is also the Decision of the Government of the Russian Federation from 01.09.92 ¹ 653.
We Believe, that in view of the stated legal position the tax bearer will have enough telling arguments to assert the position in dispute with tax organ. Besides executing obligatory decisions for it local authorities, the tax bearer could not make a guilty tax offence. Hence, the responsibility for a tax offence can not be assigned to it.
