Examples from judiciary practice:The order of the Presidium of the Supreme Arbitration Court of the RF from November, 01, 2005 ¹ 7131/05
The Presidium of the Supreme Arbitration Court of the Russian Federation including:
the members of the presidium: Andreeva T.K., Arifulina A.A., Vitriansky V.V., Vyshniak N.G., Kozlova A.S., Sukhova G.I., Uhnei M.F., Valiavina E.U., Ivannikova N.P., Kireeva U.A., Pershutov A.G., Goriacheva U.U., Neshataeva T.N., Slesarev V.L. –
tried the application of the Inspection of the Federal tax service in Zlatoust, Cheliabinsk region, about the revision in the order of supervision of the decision of the Arbitration Court of Cheliabinsk region from 1/17/04 according to the case ¹ A76-9857/04-33-221 and the order of the Federal Arbitration Court of the Urals area from 03/03/05 according to the same case.
In the session took part the representatives of
the Inspection of the Federal tax service in Zlatoust, Cheliabinsk region, – Kaverin E.A., Komlev U.F., Shevchenko T.A.;
the OJSC “Zlatoustovsky metallurgical plant” – Garipov V.Z., Lavreshov A.V.
Having heard and discussed the report of the judge Goriacheva U.U. and also the explanations of the representatives of the persons taking part in the case, the Presidium established the following.
The Open Joint-Stock Company “Zlatoustovsky metallurgical plant” (further – the plant ) presented into the Arbitration Court of Cheliabinsk region with the application to admit invalid the decision of the inspection of the Ministry of taxes and collections of the RF in Zlatoust, Cheliabinsk region, (nowadays – the Inspection of the Federal tax service in Zlatoust, Cheliabinsk region; further – the inspection) from 03/22/04 ¹ 26 in the part of the refusal of the return of 16 391 258 rubles of the VAT and about the obligatory payment of the sum of the tax.
On November, 17, 2004 the Arbitration court of Cheliabinsk region satisfied the presented demands.
The Federal Arbitration Court of the Urals area in the order from 03/03/05 left the court decision unchanged.
In the application given into the Supreme court of the RF about the revision in the order of the supervision of the presented court acts the inspection asks to cancel them pleading the wrong use by the courts of the norms of the material and adjective laws broke the uniformity of their interpretation and use by the arbitration courts.
In the recall to the application the plant asks to leave the disputable court acts in force believing that they are based on the legislation.
Checking the validity of the arguments represented in the application, the recall to it and the performance of the attended in the session representatives the Presidium thinks that the disputable court acts are subject to be cancelled and the case is directed to the new trying into the court of the first authority according to the following reasons.
As the result of the checking of the declaration for the VAT in the tax rate of 0% for November, 2003 the inspection refused to the plant in the return of 16 391 258 rubles by the decision from 03/22/04 ¹36 pleading the fact that the exported metal goods was received as the result of illusory deals made in order to create the conditions for illegal getting of money from the budget as the return of the VAT.
The order of the return of the VAT is established by clause 176 TC RF (further – the Code), foreseen the making of the checking by the tax bodies including the validity of the tax deductions. Within this checking based on clause 88, 93 of the Code the tax body has the right to demand the extra information, documents and explanations and (or) to get the conforming information in another legal way.
According to clause 173, item 2 of the Code the taxpayer`s compensation of the sum of the VAT, paid to the provider is made in the volume of the positive difference between the sum of the tax deductions and the sum of the tax.
The position of this clause is connected with the clauses 171 and 172 of the Code and there may be the possibility of the return of the tax from the budget if the economic operations are really made.
So the tax body has the right to refuse the return of the tax for the sum of the deductions if it is not confirmed by the presented documents or the unscrupulousness of the taxpayer during the operations.
In this case the inspection during the refusal to the plant to return the deduction pleaded in its decision from 03/22/04 ¹ 26 and the motivated conclusion from 03/22/04 ¹ 6 the following circumstances.
According to the contract from 09/01/02 ¹ 12-1364k the plant sold to the JSC “Saurent” (Moscow; further – the company) the metal in the unfinished production which was given again to the plant for the industrial revision according to the contract from 08/22/02 ¹ 12-1362k. The goods having got from the metal was bought by the plant from the company according to the contract of buying and selling from 09/01/02 ¹ 12-1454k and sold through the commissioner for export.
Herewith the conforming contract relations between the plant and the commissioner and also between the commissioner and the foreign buyer appeared before August, 2002. The metal in the unfinished production and the metal goods before its sending to export were on the territory of the plant. The contract of the storage was shown as soon as the inspection demanded but it was from 01/23/04 ¹ 2423 and without the endorsement acts that did not allow to determine the object of the contract. The accountings were made between the plant and the company by means of interpayment. In their declarations the company reflected the sums received not for the sold metal to the plant but for the agent services in the buying from the firm “Neville Investments Limited” of the metal for the plant.
In such circumstances the inspection made the conclusion that the deals between the company and the plant are economically non-specified and they pursued an aim of the illegal receiving of the VAT from the budget.
Declaring the decision of the inspection about the refusal of the return of the tax invalid, the court of the first authority pleaded the fact that all the demands of clause 165 of the Code were satisfied by the plant, and the fact of its unscrupulousness and fakeness of the deals was not proved by the inspection but the reasons for the refusal of the return of the tax have the assumptive character. As the court showed the plant`s deals for the previous periods were under the court more than once and their reality was proved.
Meanwhile clause 165 of the Code establishes the demands for the showing of the documents connected with the export contracts but not for the operations of the exporters with the providers forming the tax deductions.
The court conclusions about the reality of the plant deals is expounded in the common form by means of the reference to the repeated trying of these deals by the courts and the confirming of their reality, however, without the indication of what circumstances established by the arbitration court decisions are accepted by the court as non-subject to be proved according to clause 69, part 2 of the Arbitration code of practice of the RF.
The court did not give to the plant the legal valuation of the contracts transferred by the inspection in its decision and motivated conclusion in their intercommunication and totality and also to the inspection conclusions about the economic non-validity of the deals negotiated by the plant and the company, about the non-participation of the company in the process of creation and realization of metal goods sent to the export.
There are notes about the attachment to the materials of the case the contract of buying and selling from 09/01/02, the deal of contract from 08/22/02 and the contract of storage from 09/01/02. But there is no any contracts between the plant and the company except the contract of buying and selling of the metal goods from 09/01/02 ¹ 12-1454k in the materials of the case. Herewith neither the decision nor the record of the court session have the information about the court investigation of some contracts or other documents.
Also the court did not value the materials of the counter checkings presented by the inspection into the session and attached to the materials of the case.
Thus there are no reasons to think that the court of the first authority satisfied the demands of clause 71 of the Arbitration code of practice of the RF about the comprehensive, full, objective and direct investigation of the proves.
The infringements of the norms of the material and practice laws during the case trying in the appeal court made by the court are not removed.
Taking into account the said above and acting in accordance with clause 303, item 2 of part 1 of clause 305, clause 306 of the Arbitration code of practice of the RF, the Presidium of the Supreme Arbitration court of the RF established:
to abolish the decision of the Arbitration court of the Cheliabinsk region from 11/17/04 according to the case ¹ A76-9857/04-33-221 and the order of the Federal arbitration court of the Urals area from 03/03/05 according to the same case.
to direct the case for the new trying into the court of the first authority of the Arbitration court of the Cheliabinsk region.
Chairman A.A.Ivanov
