Examples from judiciary practice:The order of the Presidium of the Supreme Arbitration Court of the RF from July, 26, 2005 ¹ 3663/05
The Presidium of the Supreme Arbitration Court of the Russian Federation including:
the chairman – the chairman of the Supreme Arbitration Court of the RF Ivanov A.A
the members of the presidium: Arifulina A.A., Babkina A.I., Vyshniak N.G., Kozlova A.S., Kozlova O.A., Slesarev V.L., Strelov I.M., Ivannikova N.P., Kireev U.A., –
tried the application of the State Institute “The Board of the Pension Fund of the RF in the Mainsky region of Ulianovsk area” about the revision in the order of supervision of the Federal Arbitration court of the Povolzhsky region from 02/08/05 according to the case ¹A72-8222/2004-8/715 of the Arbitration court of Ulianovsk area.
In the session took part the representatives of
the applicant – of the State Institute “The Board of the Pension Fund of the RF in the Mainsky region of Ulianovsk area”– Kyznetcova V.A., Levina N.S.
Having heard and discussed the report of the judge Vyshniak N.G.and also the explanations of the representatives of the applicant, the Presidium of the Supreme Arbitration Court of the Russian Federation ordered the following.
the State Institute “The Board of the Pension Fund of the RF in the Mainsky region of Ulianovsk area” (further – the territory body of PFR) paid 11 860 rubles of the tax to profit of the organizations for the period from 01/01/04 to 03/31/04 and 77 rubles 09 copecks by means of payment order from 05/25/04 ¹ 364.
On July, 23, 2004 the territory body of PFR directed to the Interdistrict inspection of the Ministry of the RF in the taxes and collections ¹ 4 in Mainsky, Veshkaimsky areas of the Ulianovsk region (further – the tax inspection) the application about the return of sums of the unduly paid tax and fines because according to clause 381, item 7 of TC RF (further- the Code) the property of the Pension Fund bodies of the RF must not be liable to tax to profit.
The tax inspection refused to return the unduly paid tax in its letter from 07/30/04 ¹ 16-06-29/5643.
The territory body of PFR applied to the Arbitration court of Ulianovsk region with the application to admit illegal the actions of the placemen of the tax inspection expressed in the refusal to return 11 860 rubles of the unduly paid tax to profit of the organizations and 77 rubles 09 copecks of fines and in obligation to make the return of the presented sums.
The court decision of the first authority from 11/03/04 satisfied the applied demands according to the following reasons.
The Pension Fund bodies of the RF within the carrying out of the functions for obligatory pension insurance placed on them work in the sphere of the obligatory social security. Hence, according to clause 381, item 7 of the Code they have the right to be free from paying of the tax to profit of the organizations.
The Federal Arbitration court of Povolzhsky region cancelled the court decision of the first authority in its order from 02/08/05 and refused to satisfy the presented demands based on the following.
According to the regulations of the state institute “The Board of the Pension Fund of the RF in the Mainsky region of Ulianovsk area” (further – the regulations) it was placed upon the territory body PFR to fulfill the administrative functions the part of which do not belong to the social security but to the fiscal functions such as the exposure, the registration and the account of the payers of the deposits into the Pension Fund of the RF so the property used by it does not belong to the object of socio-culture sphere and social security freed to pay tax to property for the organization.
In the recall to the application the tax inspection asks to leave the presented court act in force as the conforming to the legislation.
Checking the validity of the arguments presented in the application, the recall to it and the reports of the presented in the session the representatives of the territory bodies of the PFR, the Presidium thinks that the disputable court order of the first authority is subject to be cancelled but the court decision of the first authority – to be left unchanged according to the following reasons.
According to clause 381, item 7 of the Code the organizations are freed from paying the tax to profit connecting the objects of the socio-cultural sphere used by them for the needs of culture and arts, education, physical culture and sport, health services and social security.
The Federal Law “About the obligatory pension insurance in the RF” from 12/15/01 ¹ 167-FL plays on the Pension fund of the RF the function about the security of the obligatory pension insurance within which they create the activity directed to the realization of the rights of the citizens for the social security guaranteed by clause 39 of the Constitution of the RF.
According to the presented regulations the territory fund of PFR was provided the authorities to charge and pay the state pensions and is the assignee of the conforming committee of social security of the citizens in the part of charging (re-calculation) of the state pensions and social welfare for the interment of the dead pensioners who did not work in the death day.
Hence, as the pension security is the part of the social security and the Pension fund of the RF and its territory bodies carries out the pension security directly their property used during the realizing of the base activity should not be taxable to profit of the organizations according to clause 381, item 7.
According to the presented circumstances on the bases of clause 304, item 1 of the Arbitration court of practice of the RF the disputable order of the court of the appeal instance is subject to be cancelled as breaking the uniformity in the interpretation and use of the norms of the right.
Taking into account the statement and acting in accordance with clause 303, item 5 of part 1 of the clause 305, clause 306 of the Arbitration court of practice of the RF the Presidium of the Supreme Arbitration Court of the RF ordered:
to cancel the order of the Federal arbitration court of Povolzhsky region from 02/08/05 according to the case ¹ A72-8222/2004-8/715 of the Arbitration court of the Ulianovsk area.
To leave unchanged the decision of the Arbitration court of the Ulianovsk area from 11/03/04 according to the same case.
Chairman A.A. Ivanov
