Examples from judiciary practice:The order of the Presidium of the Supreme Arbitration Court of the RF from June, 15, 2005 ¹ 15378/04
The Presidium of the Supreme Arbitration Court of the Russian Federation including:
the members of the presidium: Andreeva T.K., Arifulin A.A., BabkinA.I., Vitriansky V.V., Vyshniak N.G., Ivannikova N.P., Kireev U.A., Slesarev V.L., Uhnei M.F., Kozlova A.S., Isaicheva V.N.–
tried the application of the Interdistrict inspection of the Federal tax service for the biggest taxpayers for the Ulianovsk region about the revision in the order of supervision of the Court decision of the first authority from 04/14/04, of the order of the court of the appeal authority from 06/17/04 of the Arbitration court of Ulianovsk region according to the case ¹ 72-2079/04-5/256 and the order of the Federal Arbitration court of the Povolzhsky region from 08/17/04 according to the same case.
In the session took part the representatives of
the applicant – the Interdistrict inspection of the Federal tax service for the biggest taxpayers for the Ulianovsk region (further – the inspection) – Elina N.V., Rybalko I.V., Khachatrian N.A.
the Ulianovsky municipal unitary enterprise of the plumbing-sewage economy “Ulianovskvodokanal” (further – the enterprise) – Salikhova H.M.
Having heard and discussed the report of the judge Vyshniak N.G.and also the explanations of the representatives of the person taking part in the case, the Presidium established the following.
The Inspection made the tax checking of the enterprise in the questions of rightness of accounting and paying of the taxes for the period from 01/01/2000 to 12/31/2002.
As the result of the checking it was made the decision from 01/09/04 ¹ 13 DSP according to which the enterprise was pre-added 5 298 131 rubles of the tax, added 2 020 603 rubles of fines and 821 265 rubles of penalty sanctions.
The reason of the adding of 4 382 993 rubles of the VAT, of 463 336 rubles of the tax to profit, of 354 785 rubles of the tax for the use of the driveways, of 97 017 rubles of the tax for the keeping of housing fund is the non-including by the enterprise into the tax base of the money sources getting from the enterprises-subscribers for the services of acceptance of sewage with the concentration of polluting substances higher than it is allowed. It led to the understatement of the taxable base and non-payment of the taxes.
Substantiating its position the Inspection proceeded from the fact that the money sources coming from the enterprises-subscribers for the services of the acceptance of sewage with the concentration of the polluting substances higher than it is allowed are subject to be included into the taxable base:
- for the VAT according to item 1 of clause 4 of the Law of the RF from 12/06/91 ¹ 1992-1 “About the VAT” (for 2000) and clause 153 of the Tax Code of the RF (for 2001, 2002) according to which all sources the coming of which is connected with the accountings for the payment of the goods (works, services) are subject to be included;
- for the tax for the use of the driveways according to item 2 of clause 5 of the Law of the RF from 10/18/91 ¹ 1759-1 “About the road funds of the RF” (for 2000-2002) according to which the object of the taxability is the returns receiving from the realization of the goods (works, services);
- for the tax for the keeping of the housing fund and the objects of the socio-cultural sphere according to item 3 of the supplement ¹ 7 of the regulations “About the local taxes and collections on the territory of Ulianovsk” established by the decision of the city Duma of Ulianovsk from 11/26/97 ¹ 211 (for 2000) according to which the object of taxability is the volume of the realization of the goods (works, services) without the VAT, the fuel-lubricants and excises;
- for the tax to profit according to subitem 1 of item 1 of clause 10 of the Law of the RF from 08/06/01 ¹ 110-FL “About the insertion of the changes and additions into part two of the Tax code of the RF and some other acts of the legislation of the RF about taxes and collections and also about the acceptance of some lost effect acts (the regulations of the acts) of the legislation of the RF about the taxes and collections” according to which the taxpayers during the transmission into the definition of the income and expenditures by means of the method of the accounting must draw up an inventory of the debtor debt for the period of December, 31, 2001.
The enterprise thinking that the fee coming from the enterprises-subscribers for the service of the acceptance of sewage with the concentration of the polluting substances higher than it is allowed is the sanction for the infringement of the obligation for the delivery of the sewage and so is must not be taken into consideration during the accounting of the taxable base of the presented taxes except the tax to profit as non-realized incomes, presented into the Arbitration court of Ulianovsk region the application about the acceptance of the decision of the inspection from 01/09/04 ¹13 DSP invalid.
The decision of the court of the first authority from 04/14/04 satisfied the taxpayer`s demands un the part of the accounting of the sums of the sanctions. In another part the applicant was left without the satisfaction.
The order of the court of the appeal authority from 06/17/04 left the decision without changes.
The court of the appeal authority accepting the inspection`s activity in the pre-accounting of the taxes illegal acted in accordance with the following.
The extra charge is the form of the compensation of the economic damage from the influence for the environment and bears only compensation character. Such fees are not connected with the prodiction activity of the enterprise, they are the form of the compensation of the expenditures of the enterprise and also the damage caused to the environment. It allows to classify them as non-realized income and not to account during the accounting of the base in the disputable tax fees.
The inspection asks to cancel the application presented into the Supreme Arbitration Court of the RF about the revision in the order of supervision of the disputable court act pleading to the wrong use by the court of the norm of the material right and also its non-conforming to the court-arbitration practice.
Checking the validity of the arguments represented in the application and the reports of the attended in the session the representative of the party the Presidium thinks that the disputable court act is subject to be cancelled, the decision of the court of the first authority and the order of the court of the appeal authority left unchangeable in the following reasons.
According to the order of the Government of the RF from 02/12/99 ¹ 167 accepted within the given to him authorities for the realization of the citizens` rights for the favourable environment the rules of the use of the systems of the were established communal water-supply and sewerage in the RF (further – the Rules).
According to item 11 of the Rules the acceptance (the discharge) of sewage is put into effect on the basis of the contract of energy-supply applying to the public contracts (clauses 426, 539-548 of the Civil Code of the RF).
One of the main condition of the contract is the order, terms, tariffs and the conditions of payment including the charges for extra limited water-consumption and the exceeding of the norm of the discharge of sewage and polluting substances (paragraph 7 of item 13 of the Rules).
From paragraph 4 of item 2.1.1 of the contract about the discharge and acceptance of sewage from 11/24/02 signed by the enterprise with the subscriber it follows that the acceptance of sewage with the concentrations of polluting substances higher than it is established is made for extra charge according to the present Rules of the acceptance of sewage and polluting substances into the system of economic-consumer canalization of Ulianovsk established by the order of the mayor of Ulianovsk from 09/04/2000 ¹ 2569 by which the parties are guided in their relationship.
Hence the establishment of the higher charge for exceeding of the normative discharge of sewage and polluting substances is the kind of differentiated tariff for the services of acceptance and neutralizing of polluting substances which are in sewage. This charge is established according to the parties` understanding and is not subject to the fines or another kind of responsibility for non-execution of obligations according to the contract.
In these circumstances the court of the appeal instance used wrongly the law, so according to item 1 of clause 304 of Arbitration Code of practice of the RF the order accepted by it is subject to be cancelled.
Taking into account the said above and acting according to clause 303, item 3 of part 1 of clause 305 of the Arbitration Code of practice of RF, the Presidium of the Supreme Arbitration Court of RF ordered:
to cancel the order of the Federal Arbitration Court of Povolzhsky region from 08/17/2004 according to the case ¹ A72-2079/04-5/256 of the Arbitration court of Ulianovsky region.
to leave without any changes the decision of the court of the first instance from 06/17/04 of the Arbitration court of Ulianovsky region according to the presented case.
Chairman A.A.Ivanov
