Examples from judiciary practice:The order of the Presidium of the Supreme Arbitration Court of the RF from March, 22, 2005 ¹ 13048/04
The Presidium of the Supreme Arbitration Court of the Russian Federation including:
the members of the presidium: Andreeva T.K., Arifulina A.A., Babkina A.I., Vitriansky V.V., Vyshniak N.G., Kozlova A.S., Kozlova O.A., Poletaeva G.G., Strelova I.M. Sukhova G.I., Uhnei M.F. –
tried the application of the Interdistrict inspection of the Ministry of the RF in the taxes and collections ¹6 for the Tyumen area (nowadays – the Interdistrict inspection of the Federal tax service ¹6 in the Tyumen area) about the revision of the order of the Federal Arbitration Court of the West-Siberian district from 07/19/04 in the case ¹ A70-7766/29-2003 of the Arbitration Court of the Tyumen area.
The representatives of the applicant – of the Interdistrict inspection of the Federal tax service ¹6 in the Tyumen area - took part in the session – Elina N.V., Khakimova L.A.
Having heard and discussed the report of the judge Poletaeva G.G.. and also the explanations of the representatives of the person taking part in the case, the Presidium established the following.
On August, 27, 2003 the Gain Joint-stock Company “Lukoil-Permneftegas” (further - the company, the taxpayer) applied to the Interdistrict inspection of the RF in the taxes and collections ¹6 for Tumen region (further – the inspection) with the application about the return of 3 335 800 rubles of the tax to profit for 2001 unduly paid into the local budget in the order provided by clause 78 of the TC RF.
To give proof to its demand the company pleaded the absence of the duty to pay the tax to profit into the local budget according to the rate of 5% thinking that this tax established by the decision of the Duma of Bogadinsky hutment (further – hutment Duma) from 09/20/2000 ¹ 26/D-r-2000 “About the rate of the tax to profit accounted into the local budget” can not be established legally because the presented decision was not published officially in the local press. Besides according to the company the hutment Duma did not have the rights to accept the decision because the Federal Law from 08/05/2000 ¹ 118/FL “About putting the part two of the TC RF into operation and the insertion of the changes into some legislative acts of the RF about the taxes” (further – the Law from 08/05/2000¹118-FL) giving the right to the representative bodies of the local self-ruling to establish the tax rates (not higher than 5%) charged into the local budget began working since 01/01/01.
The inspection refused to the company to return the presented sum of the tax in the letter from 11/12/03 ¹ 09-40/13379 because there is no overcharge according to the personal account of the taxpayer and there are arrears in the taxes.
The company applied to the Arbitration court of Tumen region with the application about the acceptance of the inaction of the inspection illegal found the expression in non-return of the unduly paid tax and the obligation to remove the admitted infringement of its rights and legal interests.
It is refused in the satisfaction of the presented demands by means of the decision of the court of the first authority from 02/05/2004.
The order of the court of the appeal authority from 04/05/2004 left the decision unchanged.
When the court authorities refused to the company in the satisfaction of their demands they based on the regulations of the Law of the RF from 08/28/1995 ¹ 154-FL “About the common principles of the organization of the local self-ruling in the RF” (with changes and addings) (further – the Law from 08/28/1995 ¹ 154-FL) in the wording acted when the decision according to this case was accepted by which the order of the acceptance and going in force of the legal acts of the local self-ruling bodies was designated, i.e. these legal acts will go in force after their official edition (publication). The courts established that the decision of the hutment Duma was brought to everyone`s notice by means of the publishing in the omnibus places according to the rules consolidated in the regulations of the municipal education and this fact is proved by the taxpayer`s payment of the tax.
As this decision came into effect since 01/01/01 the representative body of the local self-ruling had the right to establish the rates of the tax to profit from this date.
The Federal arbitration court of the North-Siberian region abrogated the presented court acts by means of the ruling from 07/19/04, satisfied the presented demands admitted the inspection inaction in the return of the unduly paid tax by the company illegal.
The court of the appeal authority pleaded the regulations of clause 47 of the Federal Law from 10/06/03 ¹ 131-FL “About the common principles of the organization of the local self-ruling in the RF” (further – the Law from 10/06/03 ¹ 131-FL) according to which the normative legal acts of the representative bodies of the local self-ruling in the questions of the establishment of the taxes and collections are subject to the obligatory official publishing. Proceeding from this the court admitted that as the decision of the hutment Duma was not officially published it could not be used according to clause 15 of the Constitution of the RF; the abolished court acts of the first and the appeal authorities were accepted without the taking into account the regulations of clause 47 of the presented Law. The court of the appeal authority agreed with the conclusions of these court authorities according to the right of the representative body of the local self-ruling for the acceptance of the decision before the Law from 08/05/2000 ¹118-FL comes into effect.
In the application given to the Supreme Arbitration Court of the RF about the revision in the order of the supervision of the court decision of the appeal authority the inspection referred to the use of the law which is not subject to be used, by the court.
Checking the validity of the arguments represented in the allegation, the recall to it and the performances of the attended in the session representatives of the inspection the Presidium thinks that the disputable court act is subject to be cancelled, the decision of the court of the first and the order of the court of the appeal authorities are subject to be left unchanged in the following.
By 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 the organizations” was supplemented with the following text: into the local budgets the tax to profit of the enterprises and organizations is charged according to the rates established by the representative bodies of the local self-ruling in the volume not higher than 5%. The coming of this Law into effect is provided since 01/01/2001 but not earlier than a month after its official publishing.
According to the Law from 08/05/2000 ¹ 118-FL and the Law from 08/28/1995 ¹ 154-FL the hutment Duma accepted the decision from 09/20/2000 ¹ 26/D-r-2000 “About the rate of the tax to profit charged into the local budget”, established the term of its coming into effect since 01/01/2001.
The courts of the first and appeal authorities valued the presented proves in the case came to the conclusion to bring the decision of the hutment Duma to everybody`s notice in the order provided by the regulations of the municipal education.
From clause 47 of the Law from 10/06/2003 ¹ 131-FL which was used by the court of the appeal authority it follows that the municipal legal acts come into effect in the order established by the regulations of the municipal education except the normative legal acts of the representative bodies of the local self-ruling about the taxes and collections which will come in effect according to the Tax Code of the RF.
Meanwhile the Law from 10/06/03 ¹ 131-FL can not be spread to the legal relations appeared before its acceptance. Clause 47 of the presented Law basing on item 1 of clause 83 of the Law comes into effect from 01/01/06.
Thus the Federal arbitration court of the North-Siberian region used the law which does not act and can not be used according to these legal relations.Under the presented circumstances the disputable court act infringes the uniformity in the interpretation and use by the arbitration courts of the norms of the right according to the item 1 of clause 304 of the Arbitration Code of Practice of the RF they are subject to be cancelled.
Taking into account the statement and acting in accordance with clause 303, item 5 part 1 of the clause 305, clause 306 of the Arbitration code 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 the North-Siberian region from 07/19/04 according to the case ¹ A70-7766/29-2003 of the Arbitration court of Tumen region.
To leave unchanged the decision of the court of the first authority from 02/05/04 and the order of the court of the appeal authority from 04/05/04 of the Arbitration court of Tumen region according to the presented case.
Chairman V.N.Isaichev
