Examples from judiciary practice:

  The decision of the Supreme Arbitration Court of the RF from September, 13, 2005 № 4563/05

The court collegium of the Supreme Arbitration Court of the RF including the chairman judge Chistiakov A.N., the judges Panova I.V., Finigenov V.I., the judge`s assistant Bolgar P.V. who protocolled the court session tried the case on the open court session according to the application of the JSC “Science-production enterprise “Nefte-Standart” about the acceptance of the instruction about the confirmation by the customs bodies of the factual import (export) of the goods from the customs territory of the RF (into the customs territory of the RF) established by the order of the State customs committee of the RF from 07/21/03 № 806 invalid.

In the session took part the representatives of:

the applicant - the JSC “Science-production enterprise “Nefte-Standart” – Chicherin V.P. (the warrant from 08/05/05);

the Ministry of the economic development and trade of the RF:

Gusev O.N. – the employee of legal security department (the warrant from 02/07/05 № 1215-GG/DO2)

Iskoskova M.V. – the employee of the Federal customs service (the warrant from 08/05/05 № 12036-GG/DO2)

Morozova O.V. - the employee of the Federal customs service (the warrant from 08/05/05 № 12037-GG/DO2)

Having considered the arguments stating in the application and the recall to it, examined the presented proves and having heard the explanations of the representatives of the persons taking part in the case the court established the following.

The Instruction about the confirmation by the customs bodies of the factual import (export) of the goods from the customs territory of the RF (into the customs territory of the RF) was proved by the order of the State customs committee of the RF from 07/21/03 № 806.

According to this order the Instruction was established on the basis of clause 180 of the Customs Code of the RF (1993) in order to provide the confirmation of the customs bodies of the factual export of the goods and vehicles beyond the customs territory of the RF, of the import of the goods and vehicles into the customs territory of the RF and also the transit of the goods through the indicated territory for the realization of the rights of the Russian people for the use of the tax rate of 0% for the VAT and the excises in the cases established by clauses 164, 165 and 183 of the Tax Code of the RF.

Because of the coming into effect from 01/01/04 of the Customs Code of the RF (the Federal Law from 05/28/03 №61FL) the State customs committee of the RF by means of the letter from 12/26/03 № 01-06/50580 published in “Customs Reports”,№ 6, 2004 and “Customs Bulletin”, № 3, 2004 announced that the Instruction acts in the part not contradicting the Code.

As the legal basis of the applied demand the applicant pleads to the fact that the Instruction is subject to be accepted invalid as not conforming to item 1 of clause 5 of the Customs code of the RF and item 1 of clause 4 of the Tax Code of the RF according to the reasons established by subitems 1,3,4 of item 3 of clause 6 of the Customs code of the RF and subitems 1,3,7,8 of item 1 clause 6 of the Tax code of the RF.

The applicant thinks that during the realization of his right to use the tax rate of 0% established by clause 164 of the Tax code of the RF the Instruction places on him extra and non-established by the law duties which must be acted beyond  (time and spatial) procedures of export of the goods.

The Ministry of the economic development and trade of the RF objects to satisfy the applicant pleading the fact that the Instruction does not contradict the norms of the Customs code of the RF and the Tax code of the RF.

In the result of the discussion with the persons taking part in the case disputable legal normative act and presented by the applicant the legal acts which he contradicts their character, subject and aims of the legal regulation the court made the following conclusion.

According to item 1 of clause 5 of the Customs code of the RF in the cases established by the acts of the customs legislation and other legal acts of the RF the federal ministry authorizes in the sphere of customs case and the federal service authorized in the sphere of the customs case publish the legal acts in the sphere of the customs case.

According to subitem 1,3,4 of item 3 of clause 6 of the Customs code of the RF the normative legal act in the sphere of the customs case is  accepted non-conforming to the Code.

According to item 1 of clause 4 of the Tax code of the RF the Federal bodies of the executive power authorized to carry out the functions on quality of the state politics and normative-legal regulation in the sphere of taxes and collections and in the sphere of customs business the bodies of the executive power of the subjects of the RF, the executive power of the local self-ruling in the subject by the legislation about the taxes and collections cases publish normative legal acts in the questions connected with the taxability and collections which can change and add the legislation about the taxes and collections.

According to subitem 1 of item 1 of clause 164 of the Tax code of the RF the paying of the VAT during the realization of the goods exported in the customs regime of export is made according to the tax rate of 0% on condition of presenting into the tax bodies of the documents established by clause 165 of the Tax code of the RF.

The customs declaration and also other documents which have the notes of the customs bodies are subject to the category of documents appearing in the process of the customs registration of the goods and the customs control in the order established by the acts of the customs legislation including the normative legal acts of the federal body of the executive authorized in the sphere of the customs business.

According to clause 11 of the Customs code of the RF (1993) acting at the moment of establishment of the Instruction the State customs committee of the RF had the authorities to publish the normative acts within its competence according to the customs business and according to clauses 126, 180 of this customs control.

As the result of the examination of the content and the sense of the legal norms presented in the Instruction the court did not find the signs of their influence which changes the foundation, conditions, consecution or order of acting of the participants of the relationship and also the content of the term established by the Customs code of the RF and the Tax code of the RF.

The applicant`s argument about the fact the provided by the Instruction the duties for the applying to the customs body with the application and the presenting of the necessary documents infringe his rights is baseless, because the fulfillment of these duties is depended on the demand established by subitem 3,4 of item 1 of clause 165 of the Tax code of the RF to present into the tax body the conforming documents during the realization by him of the right for the use of the tax rate in 0% and the tax deductions.

Hence the Instruction establishes the order which allows the taxpayers including the applicant to prove his right to use the tax rate in 0% and the tax deductions and so it can not be accepted as it is infringes the applicant`s rights.

Taking into account the said above there no reasons to satisfy the application of the JSC “Science-production enterprise “Nefte-Standart”.

According to clauses 167-170, 195 of the Arbitration code of procedure of the RF the arbitration court decided to admit the Instruction about the confirmation by the customs bodies of the factual import (export) of the goods from the customs territory of the RF (into the customs territory of the RF).

To refuse in the satisfaction of the application of the JSC “Science-production enterprise “Nefte-Standart”
about the acceptance of the presented non-acting instruction.

Chairman judge
A.I.Chstiakov

Judges
I.V.Panova
V.I.Finogenov