Examples from judiciary practice:The order of the Presidium of the Supreme Arbitration Court of the RF from November, 8, 2005 ¹ 8229/05
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: Arifulin A.A., Andreeva T.K., Valiavina E.U., Vyshniak N.G., Kireev U.A. Kozlova O.A., Kozlova O.A., Slesarev V.L., Ivannikova N.P., Vitriansky V.V., Murina O.L., Sukhova G.I., Uhnei M.F. –
tried the application of the Dagestan customs in the order of supervision of the order of the Federal arbitration court of North-Caucasian area from 05/24/ 05 according to the case ¹A15-1516/03-15 of the Arbitration court of Dagestan Republic.
In the session took part the representatives of
the applicant – the Dagestan customs – Naumov A.A.
the individual entrepreneur Manafov D.M. – Salmanova T.M.
Having heard and discussed the report of the judge Murina O.L. and also the explanations of the representatives of the persons attended in the session, the Presidium ordered the following.
The individual entrepreneur without the formation of the juridical person Manafov D.M. (further – the entrepreneur) presented into the Arbitration court of Dagestan Republic the claim about the obligation of the Dagestan customs (further – the customs) to return the VAT unduly paid by the entrepreneur according to the customs credit slips the sum of which is 4 350 151 rubles. Afterwards the sum of the claim was reduced to 3 450 151 rubles.
The entrepreneur`s application was motivated by the following.
In the period from June, 13 to December, 12, 2002 the entrepreneur imported on the territory of the RF from Azerbaijan Republic the goods with the aim to sell them and during the paying of the customs fees he paid the VAT according to 26 customs credit slips in the sum of 3 450 151 rubles.
The entrepreneur suggested that he was not the payer of the VAT according to the Federal Law from 12/29/1995 ¹ 222-FL “About the simplified system of the taxability, the record and the accountability for the subjects of the small enterprise” and the Federal Law from 06/14/1995 ¹ 88-FL “About the state support of the small enterprise of the RF” (further – the Federal Law ¹ 88-FL) and the sum of the tax paid by him is redundant and is subject to be returned from the budget. So on August, 2003 he presented the application into the customs about the return of the presented sum.
The customs refused to satisfy this demand in the letter from 09/22/03 ¹ 03-18/14296 because the entrepreneur did not present the documents proved the creation of less favourable conditions for his enterprise activity.
Thinking that the customs` refusal was illegal the entrepreneur presented the mentioned application into the arbitration court.
The decision of the court of the first authority from 11/06/03 refused to satisfy the presented demand because clause 318 of the Customs Code of the RF attributes the VAT to the customs fees which are paid by the persons brought the goods through the customs territory of the RF.
The order of the court of the appeal authority from 01/09/04 left the decision without changes.
The Federal arbitration court of North-Caucasian area cancelled the presented court acts by means of the order from 09/29/04, the case was sent for the trying into the court of the first authority pleaded the order of the Constitutional Court of the RF from 06/19/03 ¹ 11-P according to which the guarantee proved by paragraph 2 of part 1 of clause 9 of the Federal Law ¹ 88-FL is spread on the individual entrepreneur used the simplified system of the taxability.
According to the presented norm in the case if the change of the tax legislation makes less favourable conditions for the subjects of the small enterprise in comparison with the earlier conditions, in the period of the first four years of its activity the presented subjects are subject to be taxable in the order which was available in the moment of their state registration. The individual entrepreneurs became the payers of the VAT when part 2 of the Tax Code of the RF came into effect (further – the Code).
The decision of the court of the first authority from 12/23/04 satisfied the presented demand because the entrepreneur was not the payer of the VAT in the moment of the state registration and in the period of the first four years since the state registration the previous order of the taxability should be used for him. Hence, in the period of the customs registration of the imported goods by the entrepreneur the VAT for its registration was not liable to be exacted. Besides according to clause 18 of the Code the simplified system of the taxability was accepted by the special tax regime excluded the paying of the VAT by the individual entrepreneurs but the entrepreneur Manafov D.M. used the simplified system of taxability in the period of the import of the goods.
The order of the court of the first authority from 04/06/05 cancelled the decision, refused to satisfy the demands of the entrepreneur because during the import of the goods into the customs territory of the RF the object of taxability appeared at him and he became the payer of the VAT.
The Federal arbitration court of North-Caucasian area cancelled the order of the court of the appeal authority from 04/06/05 by means of the order from 05/24/05, left in force the decision of the court of the first authority from 12/21/04 motivated its decision by the fact that the court of the first authority examined the factual circumstances of the case and made the right conclusion about the absence of the legal reasons for the refusal to return the VAT unduly paid by the entrepreneur.
In the application presented into the Supreme Arbitration court of the RF about the revision in the order of supervision of the order of the Federal arbitration court of North-Caucasian area from 05/24/05 the customs asks to cancel it because the court used item 3 of clause 145 of the Code wrongly. The order of the paying of the VAT during the moving of the goods through the customs border of the RF is established according to the Customs Code of the RF.
In the recall to the application the entrepreneur asks to leave the disputable order unchangeable because he agrees with the motives presented in it.
Based on clause 146 of the Code the objects of taxability of the VAT are the operations of the realization of the goods (works, services) and the operations of the import of the goods into the customs territory of the RF.
Clause 143 of the Code provides that according to the operations made in the territory of the RF the payers of the VAT are the organizations and the individual entrepreneurs but during the moving of the goods through the customs border of the RF the VAT is paid by the persons established according to the Customs Code of the RF.
According to clause 118 of the Customs Code of the RF which was available in the period of the import of the goods by the entrepreneur Manafov D.M. the customs fees are paid by the person giving the declaration or by another person according to the present Code. According to clause 18 of the presented code the man given the declaration is the person moving the goods, declaring, presenting and producing the goods and vehicles from his own name.
According to item 2 of clause 110 of the previous Customs Code of the RF (clause 318 of the present Customs Code of the RF) the VAT together with other customs fees are in the customs fees during the moving of the goods through the customs boarder of the RF.
Hence any person moving the goods through the customs boarder of the RF must pay the VAT.
According to item 2 of clause 1 of the Federal Law “About the simplified system of the taxability, accounting and report for the subjects of small enterprise”, acting before 01/01/03 and according to clause 346.11 of the Code the individual entrepreneurs are the payers of the VAT during the import of the goods into the customs territory of the RF.
The order of the Constitutional Court of the RF from 06/19/03 ¹ 11-P “According to the case about the checking of the constitutionality of the regulations of the federal legislation and the legislation of the subjects of the RF regulating the taxability of the subjects of small enterprise – the individual entrepreneurs used the simplified system of taxability, accounting and report taking into account the complaints of some citizens” concerns the question of taxpayers- individual entrepreneurs`s responsibilities used the simplified system of taxability in the payment of the VAT during the realization of the goods on the territory of the RF after the coming into effect of clause 21 of the Code.
In this case the question is about the VAT which is subject to be paid during the import of the goods into the customs territory of the RF but not during its realization on the territory of the RF.
As the individual entrepreneurs including those who use the simplified system of taxability were the payers of the VAT during the import of the goods into the territory of the RF before coming into effect of clause 21 of the Code the courts of the first and the appeal authorities used in this case clause 9 of the Federal Law ¹ 88-FL and the order of the Constitutional Court of the RF ¹ 11-P by mistake.
Under these circumstances the disputable order of the Federal arbitration court of North-Caucasian area according to item 1 clause 304 of the Arbitration code of practice of the RF is subject to be cancelled because it breaks 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 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 North-Caucasian area from 05/24/05 according to the case ¹ A15-1516/03-15 of the Arbitration court of Dagestan Republic.
To leave unchanged the order of the court of the appeal authority of Dagestan Republic from 04/06/05 according to the same case.
Chairman A.A. Ivanov
