Examples from judiciary practice:The order of the Presidium of the Supreme Arbitration Court of the RF from October, 25, 2005 ¹ 4553/05
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., Strelova I.M. Sukhova G.I., Uhnei M.F., Valiavina E.U., Ivannikova N.P., Isaicheva V.N., Kireeva U.A., Pershutova A.G., –
tried the application of the Interdistrict inspection of the Federal tax service (earlier the Interdistrict inspection of the Ministry of the RF in the taxes and collections) ¹3 for the Arkhangelsk area about the revision in the order of supervision of the Court decision of the first authority from 05/28/04, the order of the Court according to the case ¹ A05-3114/04-26 and the order of the Federal Arbitration court of the North-West area from 02/01/05 according to the same case.
In the session took part the representatives of
the applicant – of the Interdistrict inspection of the Federal tax service ¹3 in the Arkhangelsk area (further the Inspection) – Kyznetcova V.A.
the Federal Tax Service (the third person on the defendant`s part) – Kurkov V.A.
Having heard and discussed the report of the judge Babkina A.I.. and also the explanations of the representatives of the person taking part in the case, the Presidium established the following.
The Gain Joint-Stock Company “Arkhbum” (further company “Arkhbum”) during the presenting into the inspection the declarations on the VAT for January and February, 2000 proclaims its right of the compensation of 28 184 000 rubles of the tax paid to the provider – to the Gain Joint-Stock Company “MegaCord” (further the company “MegaCord”) for the goods realized in the regime of export, and represent the following documents:
- the contract from 01/14/2000 ¹ 01-2000 signed between the company “Arkhbum” (the buyer) and the company “MegaCord” (the seller) for the acquirement of 1600 gouges of boreholes;
- payment commission of the company “Arkhbum” from 01/18/2000 ¹ 2162 about the payment for the delivered goods in 135 168 000 rusles (including 22 528 000 rubles of the VAT);
- the contract from 01/14/2000 ¹ 01-01/00 signed between the company “Arkhbum” and the firm “Buckland Engineering” (the UK; further the foreign firm) for the delivery of the gouges of the boreholes;
- payment commissions from 01/26/2000 ¹ 1 for the sum 113 683 200 rubles and from 02/07/2000 ¹ 2163 for the sum 33 936 000 rubles as the confirming of the payment made from the account of the Moscow representation of the foreign firm in the joint-stock merchant bank “Promsviazbank”;
- the copies of the freight customs declarations as the confirming of the export of the gouges of the boreholes in the amount of 1600 abroad.
The inspection made the decision from 03/15/04 ¹ 04-15/848 about the refuse to the company “Arkhbum” in the compensation from the Federal budget of 28 184 999 rubles of the VAT in the indicated export operations because of the lawfulness of the compensation of the VAT from the Federal budget is not confirmed.
The company “Arkhbum” applied to the Arbitration Court of the Arkhangelsk area with the demand to admit the inspection decision invalid as baseless and infringed its lawful interests because according to items 3 and 3 of the clause 7 of the Law of the RF “About the VAT” it had the right for the compensation of the sums of the tax from the budget paid to the provider of the export goods.
The decision of the inspection was admitted invalid by the court decision of the first instance from 05/28/04. The court decided that the company observed all demands brought during the compensation of the VAT; but the inspection dad not show the proves confirming the absence of the real export, the getting of the returns from the foreign buyer and the payment of the VAT by the taxpayer (exporter) to the provider of the goods sold in the regime of export.
The decision was stayed unchanged by the order of the court of the appeal instance from 11/-1/04.
The Federal Arbitration court of the North-West area left the indicated court acts without any changes by the order from 02/01/05.
The inspection asks to cancel the indicated court acts because of the contravention of the uniformity in the interpretation and use of the norms of the right in the allegation given to the Supreme Arbitration Court of the RF about the revision of the indicated court acts.
In the recall to the allegation the company “Arkhbum” asks to leave the disputable court acts in force believing that they are based on the legislation about the taxes and collections accepted according to the turned out court practice.
Checking the validity of the arguments represented in the allegation, the recall to it and the performance of the attended in the session the representative of the party the Presidium thinks that the disputable court acts are subject to the cancel in the following reasons.
According to the clause 7 of the Law of the RF “About the VAT” (acting in the period of the appearing of the disputable law relations) the taxpayer`s right (the exporter`s) for the compensation of the sum of the VAT from the budget, paid to the provider of the goods (works, services) during the export operation, appears in the case of the factual payment of this sum by the taxpayer to the provider and the export of the bought goods (works, services) really made by him.
For the use of the tax privilege and the compensation of the sum of the tax from the budget the taxpayer must prove the lawfulness of his demands showing the corresponding documents which must answer the presenting demands and certify the circumstances with which the legislation connects tax results.
The tax body during the check out of the validity of the use of the tax privilege and the compensation of the tax from the budget has the right if it is necessary to demand the complementary information and documents.
In this case as the result of the made steps of the tax control including subcontractors of the taxpayer the inspection made the conclusion about non-confirmation by the company “Arkhbum” of the reality of the export operations and other circumstances with which the Tax Code of the RF connects the right of the taxpayer for the getting of the compensation of the paid to the seller sums of the VAT during the export operation according to the following.
The company “Arkhbum” represented the contract from 01/14/2000 ¹01-2000 signed with GJSC “MegaCord” and also the supplement to it ¹1,2 where the placeman who signed this contract from the provider`s name pointed the general director of the company “MegaCord” Vorobiov V.N.
Meanwhile during the enactments of the tax control conducted by the inspection it was established the following. Vorobiov V.N. questioned by the organs of the inquest informed that he knew nothing about the company “MegaCord”, that hi had not signed any documents from this organization name and that he had lost the passport.
According to the announcement of the Administration of the Federal service of the RF in the Nizhegorodsk area the juridical address of the company “MegaCord” shown in all documents does not exist virtually.
The documents represented to the court: the contract from 01/14/2000 ¹ 01-01/00, signed by the company “Arkhbum” with the foreign firm, the supplement ¹ 1 to it, the acts of the collation from 01/14/2000 ¹ 1,2 to the contract ¹ 01-01/00 signed by the head of the firm Surkovs D. which is the founder and the only participant and has the Latvian citizenship and lives in Liepaia but he refuses his connection with the introduced foreign firm, the signing of the deals and documents from its name.
Such circumstances in the relationship to the represented physical persons, the company “MegaCord and the foreign firm were established by the tax bodies during the checks according to other cases connecting the legality of the compensation to the Russian enterprises of the VAT. As the result of the revision of the court acts according to the case ¹ A43-8516/2000-16-309 of the Arbitration Court of Nizhegorodsk area and the case ¹ A33-12601/00-SL (a) of the Arbitration Court of Krasnoiarsk area the Presidium of the Supreme Arbitration Court of the RF cancelled the accepted court acts by the orders from 02/04.2003 ¹ 11851/01 and from 01/21/2003 ¹ 6163/02.
During the new trying of these cases the represented courts ascertained the absence of the connection of Surkobs  and Vorobiev V.N. with the mentioned juridical persons, and this is the reason for the refusal to the taxpayers in the compensation of the VAT.
The arguments for this case that the represented circumstances are not the barrier for the compensation of the VAT are mistaken.
As according to the clause 7 of the Law of the RF “About the VAT” the compensation of the sums of the tax from the budget is made in case of the factual payment of this sum to the provider and the export of the goods really carried out, the tax body has the right to refuse in the compensation of the sums of the VAT.
Such documents must answer the represented demands and testify about the circumstances with which the legislation connects the tax results.
Hence, the conclusion of the arbitration courts for this case that the fact of the representation by the company “Arkhbum” of the documents provided by the tax legislation without the necessary check of the reliability of the information in them serves the enough base for the compensation of the VAT is mistaken.
So the appealing court acts are subject to be abolished according to the item 1 of the clause 304 of the Arbitration code of practice of the RF 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 3 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:
The decision of the court of the first instance from 05/28/2004, the order of the court of the appeal instance from 11/01/2004 according to the case ¹ A05-3114/04-26 of the Arbitration court of Arkhangelsk area and the order of the Federal Arbitration court of the North-West area from 02/01/2005 according to the same case should be cancelled.
To refuse the Gain Joint-Stock company “Arkhbum” in the satisfaction of the application about the acception the decision if the Interdistrict inspection of the Vinistry of the RF in the taxes anâ collections ¹3 in Arkhangelsk area from 03/15/2004 ¹ 04-15/848 invalid.
Chairman A.A.Ivanov
