Examples from judiciary practice:

     1. The tax organ at check of the tax bearer has made a decision about collecting penal sanctions for understating of the tax to profit as a result of wrongful reference to unrealization charges of negative course differences under the contract of the currency loan.

     The decision is based that the tax bearer has broken item 2 of an item 6 of the Law " About currency regulation and the currency control ", namely, in time, specified in the contract, the credit was not returned, and addition to the contract of the loan, prolonging credit operation for the term of above 180 days, not registered when due hereunder, and, hence, the bargain is void.
     
      The tax bearer has not agreed with conclusions of tax body and has proved the position the following reasons:

• Depreciation of negative course differences to untrealization charges it is made on the basis of an item 2 of the Law " About the tax to profit of the enterprises and the organizations ", items 13-15 of Regulations about structure of expenses,
  
• Norms of the Civil Code of the Russian Federation and the currency legislation according to item 3 of item 2 of the Civil Code of the Russian Federation are not distributed on tax legal relationship, hence, infringements of norms of the civil and currency legislation if such infringements do not form structure of a tax offence, are not the basis for application of tax sanctions.

     The court has recognized reasons of tax organs illegal, the decision on collecting penal sanctions has cancelled.

     2. The tax organ has recognized unreasonable inclusion in the cost price of charges on training of experts of the enterprise in connection with

• Absence of the state accreditation at educational establishment,
  
• Absence at the tax bearer of documents on the termination of training (the certificate, the diploma etc.).
  
• The tax bearer has not agreed with tax organs and has proved the position the following reasons:
  
• Acknowledgement of the right on realization of educational activity is the license which copy was presented to tax organ; other obligatory allowing procedures by the Law " About licensing separate kinds of activity " are not stipulated,
• Documents on the termination of training (diplomas, certificates, certificates) do not concern to initial documents, are given out directly to citizens and are their property, the norm of the legislation on taxes and tax collections is not provided with duties of the tax bearer on storage and granting of these documents.

     The court has recognized reasons of tax organs illegal.

     3. The tax organ has recognized wrongful reference to compensation of the sums of the tax to the added cost (VAT) in connection with infringements of registration of the accounts - invoices which have expressed in absence on separate accounts - invoices of signatures of officials and (or) the seales registered in the order, established by the legislation of the subject of the Russian Federation. In particular, some accounts - invoices had prints of seales with the name " For documents ", " For accounts - invoices ".

     The tax bearer has not agreed with tax organs and has proved the position the following reasons.

     The order of registration of accounts - invoices is established by the Decree of the President of the Russian Federation from 08.05.1996 № 685 and the Decision of the Government of the Russian Federation from 29.07.1996 № 914. The specified statutory acts contain the closed list of requirements to the order of drawing up and registration of accounts - invoices. There is no instructions that the seal on the account - invoice should be a seal registered as the basic seal of the organization.

     Action (inactivity) of the tax bearer can be qualified as infringement of the tax laws only in case there is precisely certain infringement of concrete requirements of the law determining the order of payment of the tax. According to the Law " About the tax to the added cost ", a condition of compensation of the tax is its actual payment to suppliers of the goods (works, services). The law does not provide changes about compensation of the VAT in case at billing invoices the mentioned above infringements about registration are allowed.

     The decision of the Government of the Russian Federation from 29.07.1996 № 914 is issued with excess of the competence as the Decree of the President from 08.05.1996, obliging the Government to define the order of conducting a log-book of accounts - invoices, did not provide negative consequences for the tax bearer at infringement of this order by him.

     The court has recognized reasons of tax organ illegal.

     4. The tax organ has recognized unreasonable inclusion in the cost price of the charges connected to payment of informational-consulting services, rendered on the basis of the appropriate contracts as the foreign organizations, in connection with absence in contracts of instructions on cost of rendered services, price-lists of the prices and reports of the coordination of the prices and in connection with absence in written form results of rendering of informational-consulting services.

     The tax bearer has not agreed with tax body and has proved the position the following reasons.

     The documents necessary for acknowledgement of made charges were submitted to tax body: contracts, certificates(acts) of the executed works, accounts - invoices, bank settlement documents. Absence in the contract of conditions about the price is not infringement of the tax laws and, hence, references of tax organ to norms of the Civil code (424, 781 of the civil Code of the Russian Federation) are erroneous.

     Results of rendering of services do not assume their obligatory expression in a material kind (for example, services of communication, the hairdresser, the doctor etc.). According to item 5 of an item 38 of the Tax Code of the Russian Federation service for the purposes of the taxation admits activity which results have no material expression, are realized and consumed during realization of this activity. Written consultations are not initial documents and the tax bearer does not have duty on their storage.

     The court has recognized reasons of tax organ illegal.

     5. The tax organ has made a decision and has directed to court the claim about collecting penal sanctions according to item 1 of item 122 of the Tax Code of the Russian Federation for non-payment of the tax in the terms established by the legislation, at absence of understating of tax base and other wrong calculation of the tax. In a substantiation of the position the tax body has specified, that non-payment of the tax in time and is " other wrongful action " (according to the formulation of item 1 of item 122 of the Tax Code of the Russian Federation), entailed non-payment or incomplete payment of the tax which is subject to punishment for fulfillment of a tax offence.

     The tax bearer has not agreed with tax body and has proved the position the following reasons.

     The Constitutional Court of the Russian Federation eliminates uncertainty of the legal maintenance of structure of the offence stipulated by item 1 of item 122 TC the Russian Federation. In Definition of the Constitutional Court of the Russian Federation from 18.01.2001 years it is specified: " 122 TC the Russian Federation, first of all, is necessary to understand non-payment or incomplete payment of the sums of the tax as structure of an offence of the certain item 1 of an item as a result of understating or concealment of incomes, concealment of objects of the taxation, absence of the account of incomes, charges and objects of the taxation, that is infringement of rules of the account of incomes and charges and taxable base ".

     According to item 7 of an item 3 TC the Russian Federation all ineradicable doubts, contradictions and ambiguities of certificates of the legislation on taxes and tax collections are interpreted for the benefit of the tax bearer.

     In connection with that at the moment of removal of the decision of tax body about application of penal sanctions, the tax bearer has extinguished debts on payment of the tax, the tax body has refused claim requirements.

     The court has made a decision about phase-out on business in connection with refusal of the claimant of claim requirements.

Recommendations for tactics of protection during judicial
Disposals of legal proceeding on tax disputes:

     1. Experience of judiciary practice on tax disputes shows inexpediency of granting to court of the proofs based on strictly accounting categories (accounts of book keeping, the magazine - warrant etc.). In most cases the judge do not own knowledge of book keeping, and attempt of the tax bearer by consideration of an affair to appeal to rules of engineering of conducting book keeping does not give positive results. Is more effective to form proofs on the basis of the tax laws, using concepts and terms of the tax right (tax base, the tax period, object of the taxation etc.).

     2. According to 3 an item 123 of the Constitution of the Russian Federation justice is carried out on the basis of equality and competitiveness of the parties that assumes a duty of court to provide impartiality and validity of proceeding. The court has no right to incur the initiative on formation and a substantiation of a position of one of the parties. In case of the prejudiced attitude of court for the benefit of a position of tax organ on occassion it is necessary, not accenting attention to personnels to remind court of principles of equality and competitiveness of the parties, validity and impartiality at proceeding.

     3. The opportunity of application at the sanction of tax disputes of norms of civil, currency and other legislation is limited to court. According to item 3 of item 2 Civil Code of the Russian Federation to the property attitudes based on administrative or other imperious submission of one party anothers, including to tax both other financial and administrative attitudes(relations), the civil legislation is not applied, if other is not stipulated by the legislation. According to item 1 of item 108 TC the Russian Federation attraction to the responsibility for fulfilment of a tax offence is carried out only on the bases and in the order stipulated by the Tax code of the Russian Federation. That is negative consequences can follow only at infringement of the concrete act of the legislation on taxes and tax collections.

     4. By preparation for court it is necessary to define structure and the order of granting of proofs (from the point of view of their importance) for protection of the position and, subsequently, by consideration of an affair to not distract attention of court the insignificant facts, volumetric materials and indirect demonstrations if their analysis can distract court from an essence of an affair. For example, if the tax bearer has specified presence of the documents being the proof of any circumstances he should be ready to give court these documents in full irrespective of their quantity.