THE ORDER of FEDERAL ARBITRATION COURT
THE MOSCOW DISTRICT

From March 25, 2003
on business № SPACE VEHICLE - А40/1548-03
Extraction

The claim is stated by Company to Inspection about obligation to calculate and to pay interests on arrears of indemnification of VAT and admission of wrongful operatings of Inspection expressed in failure of charge and indemnification of percents.
With the award of the first instance the claim is satisfied.
By the order of a court of appeal the decree is left without change.
The bearer of an appeal, transponder on business, asks to cancel the judicial acts, contesting arithmetic calculation of the sum of percents on the reasons which have been set up in an appeal.
Lawfulness and justification of the judicial acts are checked in the appeal order.
The court of cassation, having learnt stuffs of business, having listened the quoters of the parties, supposes, that the judicial acts are subject to cancellation with referring to court of the first instance on the following basis.
The disputable sum of VAT, which one has formed the basis to calculation of interests, 4900000 rbl consist of the sum. The percents were calculated by the claimant from July 17, till July 2, 2002.
The arbitration court of the first instance, estimating the sum of percents, started with the sum 4900000 rbl., concluding N 1349 (l. д. 16) and calculation of percents (l. д. 5). However in the concluding N 1349 the sum 4834404 rbl. 07 коп is indicated to indemnification., the remaining sum under the application of the quoter of Inspection left to offset.
From the norm(standard) of point 4 of the article 176 of the Tax code of Russian Federation follows, that the percents are calculated only for the sum which is being a subject to indemnification (to return from the budget), for the test sum the percents are not calculated. Under such circumstances, the amount in controversy is counted with violation of item 4 of an item 176 TCS of Russian Federation. Besides the taxing authority indicates diverse date of the declaration, which one misses in stuffs of business, referring thus on two solutions of Inspection, namely - from June 15, 2001 and from September 20, 2001.
The reasons of Inspection about the second declaration and solutions are reduced, under the application of the quoter of Inspection, to reduction term of numeration of percents.
The reasons of Inspection were set up and in a writ of error (l. д. 36 - 37), however in the order of a court of appeal are estimated not in a full volume (l. д. 88 - 89).
Under such circumstances conclusions of the solution and the orders of arbitration court not completely correspond to the actual facts of tax dispute on the concrete sum put to indemnification.
The basis for cancellation of the judicial acts and transfer of business on new trial is by item 1 of an item 288 АПК Russian Federation and item 71 АПК Russian Federation about comprehensive, full and objective research of the evidences.
At new trial of business with allowance for of present order it is necessary to investigate the basis of the sum, stated by the claimant, of percents with reference to the norms of the tax legislation and actual facts of dispute, having evaluated reasons of Inspection on calculation of the sum of percents.
Were guided by an item of an item 284 - 289 Arbitration codes of practice of Russian Federation, court
HAS DECIDED:
The award of the first instance and order of arbitration court of court of a court of appeal on business to cancel and to refer matter on new trial to the first instance of court.