Examples from judiciary practice:The order of the Presidium of the Supreme Arbitration Court of the RF from September, 21, 2005 ¹ 885/05
The Presidium of the Supreme Arbitration Court of the Russian Federation including:
the members of the presidium: Andreeva T.K., Vyshniak N.G., Strelova I.M. Sukhova G.I., Uhnei M.F.,Kozlova O.A., Isaicheva V.N.–
tried the application of the Inspection of the Federal tax service for the Leninsky region of Samara (assignee of the Inspection of the Ministry of the RF in the taxes and collections for the Leninsky region of Samara) about the revision in the order of supervision of the Court decision of the first authority of the Arbitration court of Samara area from 07/01/04 according to the case ¹ 55-5577/2004-10 and the order of the Federal Arbitration court of the Povolzhsky region from 10/12/04 according to the same case.
In the session took part the representatives of the JSC “Samaraneftegeophysica”
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.
On March, 22, 2003 the Gain Joint-Stock Company “Samaraneftegeophysica” (further company) filed the application about the returning of 665 181 rubles of the tax to profit unduly paid in 2001 into the local budget with the reference to the absence of the legal basis for its paying into the Inspection of the Federal tax service for Leninsky region of Samara (further – the inspection).
The inspection did not return the represented sum of the tax into the debit account of the payer. Herewith the inspection proceeded from the fact that the tax to profit in the size of 5% was subject to be paid into the local budget in 2001 on the grounds of the Samara State Duma`s decision from 10/27/2000 ¹ 20 “About the rate of the tax to profit of the enterprises and organizations subject to be taken into the Samara budget” accepted according to the Federal Law from 08/05/2000 ¹ 118-FL “ About the introduction of the second part of the Tax Code of the RF and the insertion of the changes into some legal acts of the RF about the taxes” (further – the Law from 08/05/2000 ¹ 118-FL).
The company thinking that the inspection infringes its rights applied to the Arbitration Court of Samara area with the application to admit the inspection actions invalid.
The demand of the taxpayer was satisfied fully by the order of the court of the first instance from 07/01/04.
The Federal Arbitration court of Povolzhsky area left the decision without any changes by the order from 10/12/04.
The inspection asks to cancel the application filed into the Supreme Arbitration Court of the RF about the revision of the represented court acts because of the wrong use of the legislation about the taxes and collections by the courts.
Checking the validity of the arguments represented in the application and the reports of the representative of the party attended in the session the Presidium thinks that the disputable court acts are subject to be left unchangeable in the following reasons.
According to clause 8 of the Law from 08/05/2000 ¹ 118-FL clause 5 of the Law of the RF from 12/27/1991 ¹ 2116-1 “About the tax to profit of the enterprises and organizations” (further – the Law) was expanded with part 3 according to which the tax to profit of the enterprises and organizations is counted in the rates established by the representative organs of the local self-ruling in the volume of 5%.
The decision of the Samara State Duma from 10/27/2000 ¹20 for the enterprises and organizations in Samara fixed the tax rate to profit in the volume of 5%. The item 4 of this decision foresaw that it becomes working on January, 1, 2001.
According to the item 1 of clause 5 TC RF the acts of the legislation about the taxes and collections begin working only after the end of one month after their official publishing and of the first day of the tax period for the conforming tax.
The tax period is one year for the tax to profit according to clause 8 of the Law.
The courts proceeded from the fact that the ordinary tax period which begins after the end of one month after the official publishing of the Samara State Duma`s decision is January, 1, 2002. As this decision couldn`t start working earlier, the duties for paying this tax to the budget of Samara in 2001 were absent in the company.
Such court position corresponds to the item 3 of the order of the Plenum of the Supreme Arbitration Court of the RF from 02/28/2001 ¹ 5 «About some questions of the use of part 1 of TC RF».
Within the presented circumstances the inspection`s application about the revision of the court acts in this case is rejected.
Taking into account the said above and acting according to clause 303, item 1 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 leave without any changes the decision of the first instance court of the Arbitration court of Samara region from 07/01/2004 according to the case ¹ À55-5577/2004-10 and the order of the Federal Arbitration Court of Povolzhsky region from 10/12/2004 according to the same case.
to leave without any changes the application of the inspection of the Federal Tax service for Leninsky region of Samara
Chairman A.A.Ivanov
