Taxes and Taxation - rubric ARBITRATION COURT PRACTICE OF TAX DISPUTE RESOLUTION

Abstract: There is a position, that in the late years the taxpayers lose more and more in tax disputes. The author of this article analyses particular examples, in order to establish that it is not so. Judicial review is an efficient mean to protect the rights of taxpayers. The tax disputes became more complicated from the points of view of technology, preparation, means, instruments of proving the position, however, the perspectives for the taxpayer are not bad.

Abstract: Claim in the arbitration court with the claim on recognizing a decision of tax body on tax responsibility void does not stop the application of the challenged decisions. In this case, the injunctive measures, which would prohibit the tax body to charge the sums in question one-sidedly before the decision of arbitration court comes into force, could be a solution. The author explains how to file a correct application on such measures, and avoid typical mistakes Keywords: tax, arbitration, court, injunction, measure, process, application, FTS, responsibility, decision.

Abstract: The author establishes the position, that in case when the tax agent fails to calculate, hold and transfer into the budget the tax, the sums of tax and fines should be charged from the tax agent under the rules of Art. 46, 47 of the Tax Code of the Russian Federation. The defining moment in this case is establishing whether the agent was able to withhold the tax, or not. Keywords: tax, code, FTS, agent, violation of law, court, arbitration, charge, arrears, budget

Abstract: This article includes recommendation on stage-by-stage resolution of tax disputes in pre-trial and in trial. The author systematizes recommendations to the taxpayers to lower the level of conflicts within the relations with the tax bodies, when the tax disputes arise after tax control events. Keywords: dispute, tax, conflict, taxpayer, FTS, arbitration, court, Code, behavior.

Keywords: spor, nalog, konflikt, FNS, arbitrazh, sud, kodeks, povedenie

Keywords: nalog, dokazyvanie, spor, sud, arbitrazh.

Abstract: The article describes the results of the analysis of law-enforcement practice in the sphere of bringing to responsibility based on the article 119 of the Tax Code of the RF. The author defines the grounds and subjective corpus delicti and consides the questions whether it is possible to bring to responsibility for violation of procedure and form of submission of tax declarations; what is the amount of fine for failure to submit tax declaration if the sum of tax subject to payment is equal to zero; does the timely and full payment of tax release from responsibility for failure to submit tax declaration on time; what circumstances attenuate the responsibility for failure to submit tax declaration and so on.

Keywords: tax, declaration, code, failure to present, violation of law, responsibility, subject, grounds, fine, practice

DOI: 10.7256/2454-065X.2017.2.21831

Abstract: The subject of the research is the regulation of relations arising in the area of tax litigation regarding the rights of taxpayers to the accounting of expenses for income tax and the tax deduction for indirect taxes. The judicial doctrine of tax benefits proposed by the Supreme Court of Arbitration for today does not give taxpayers the necessary level of legal certainty. Taking into account the actual practice of the Constitutional Court and Armed Forces the author explores the question about the prospects of development of the judicial doctrine of the tax benefit. Relevance of the work is caused by the fact that the correction of approaches to the tax benefit carried out by the Constitutional Court makes an impression of an increased level of protection of the rights of taxpayers in disputes about the tax benefit. The research is based on the methods of historical research, analysis, and synthesis. When considering legal acts and draft laws as well as judicial acts the author has used the formal-legal research method. On the basis of the research the author has concluded that a new interpretation of the Constitutional Court will likely not cause significant "reversal" of judicial practice towards taxpayers. At the same time, it is necessary to develop a common position on the tax benefit at the theoretical and later legislative levels which is essential for the interpretation and practical application of this concept. The results can be used in the process of preparation of draft laws aimed at the change of the Tax Code.

Keywords: deductions, tax law, tax integrity of doctrine, tax disputes, tax control, tax benefit, highest judicial authorities, expenses, value added tax (VAT), profit tax

DOI: 10.7256/2454-065X.2018.4.26096

Abstract: Basaed on the analysis of the position of the Supreme Court of Russia regarding a relevant case, the author of this article analyzes consequences of applying incorrect value-added tax rate by parties. In particular, the author focuses on the following issues: 1) the scope of the contractual judgement made by parties when concluding a treaty; 2) whether presentment of VAT payable can be considered to be an alteration of a treaty; and 3) consequences of applying the zero tax rate instead of a 18 % rate, and vice versa. Osina bases her research on a detailed analysis of tax and civil laws as well as positions of supreme judicial authorities. Based on the results of the research, the author concludes that in fact the position of the Supreme Court of Russia regarding the matter creates contradictions in VAT taxation regimes under the same treaty. Moreover, related issues regarding a buyer's opportunity to apply for VAT to be deducted from a sum payable is left uncovered by the Supreme Court and so is the question about the actual amount of tax liability of a seller. This creates gaps in the tax law and may provoke judicial disputes.

Keywords: Scope of discretion of parties, Change of price, Civil code of Russia, Tax Code of Russia, Peremptory rules, VAT recovery from counterparty, Supreme Court of Russia, Incorrect rate, Value-added tax, Indirect nature of VAT

DOI: 10.7256/2454-065X.2018.5.26203

Abstract: The present article is devoted to the lega consequences of amendments made to the Tax Code of the Russian Federation on January 1, 2006, in particular, the part of the Code that regulates the procedure of accepting applications for VAT offset when goods (construction and installation services or works) are purchased. Transitional provisions of the federal law of July 22, 2005 No. 119 do not regulate the aforesaid issue. For this regard, Russian courts and competent authorities often apply contradictory approaches and solutions thereto.The author of the present article analyzes different positions and points of view on the matter referring to the law enforcement practice and position of the Ministry of Finances and Federal Tax Service of Russia and proves her point of view. The methodological basis of the research includes such formal logic methods as analysis andn synthesis. The author also applies special law methods such as formal law and comparative law methods. As a result of her research, Osina makes a number of conclusions including the following: 1) introduction of amendments has created the basis for the appearance of different approaches to answering the question about the deadline when VAT amounts that had been paid by taxpayer for construction works or services until January 1, 2006 should be reported; 2) legal positions of fiscal authorities and arbitration courts of different districts (on the one hand) and the Presidium of the Supreme Arbitration Court of the Russian Federation (on the other hand) are in fact contradictory; 3) it is important to view the position of the Presidium of the Supreme Arbitration Court of the Russian Federation taking into account the position of the Constitutional Court of the Russian Federation, in particular, their opinion that practice that worsens the position of taxpayer cannot be applied retroactively.

Keywords: depreciation, preclusive term, construction and installation works, Federal Tax Service, Ministry of Finance, Constitutional Court, Supreme arbitration court, Tax code, input VAT deduction, VAT

DOI: 10.7256/2454-065X.2018.6.26558

Abstract: The subject of the research is the procedure that is used by a continuing company to assess the treshold of the basis for calculating insurance contributions payable to employees of an accessed company. The author focuses on the question whether a continuing company is entitled to include amounts that have been paid to employees of an accessed company during the fiscal period prior to the day of reorganization into the aforesaid basis. Osina analyses and interprets explanations of the Ministry of Finances of Russia and Federal Tax Service of Russia, judicial practice and researches on the matter, which causes the importance of this particular research for practical lawyers. The methodological basis of the research implied such formal logical methods as analysis and synthesis. The author has also applied special law science methods such as formal law and comparative law. The scientific novelty of the research is caused by the fact that the author carries out an analysis of the provisions of Part 34 of the Tax Code 'Insurance Payments' that have been in effect since 2017, and their practical implementation and associated law-enforcement practice, as well as compares them to previous regulations and practice. The main conclusions of the research are as follows: 1) the treshold of the basis for calculating insurance contributions should be defined by a continuing company and include payments made by an accessed company to employees during the fiscal period prior to the moment of the company's reorganization; 2) legality and foundation of this position have been proved by many years of judicial practice including that of the Supreme Arbitration Court of the Russian Federation and Supreme Court of the Russian Federation.

Keywords: Tax code, Court practice, Refund of excess amounts, Fiscal period, Payments before reorganization, Accession, Continuation of employer-employee relations, Reorganisation of a legal entity, Maximum social security tax base, Social security tax

DOI: 10.7256/2454-065X.2019.7.29230

Abstract: This article describes the control methods of taxation authorities over transaction prices. It is assumed that transaction prices is market-based; however, in case of conclusion of transaction between interdependent parties, there is a risk of manipulation of costs for the purpose of minimization of tax consequences. According to the Tax Code of the Russian Federation, the central office of the Federal Taxation Service of Russia is authorizes to verify costs in the controlled transactions. The territorial taxation authorities, in turn, exercise control over the prices of all other transactions between interdependent parties that do not fall within the competence of the central administrative office, although they are not legislatively empowered. The article analyzes case law pertinent to the controlled transactions, as well as uncontrolled transactions concluded between interdependent parties. In the disputed on controlled transactions, the key questions consists in appropriateness of the selected pricing method. In uncontrolled transactions between interdependent parties, tax control over transaction prices is exercised by the territorial taxation authorities within the framework of the doctrine of “unreasonable tax benefit”. At the same time, the very fact of transaction conclusion between interdependent parties does not constitute a violation of law. It is necessary to establish a set of factors confirming that by means of price manipulation a taxpayer is capable of achieving unreasonable tax benefit. The conclusion is made that taxation authorities audit all prices in the transactions between interdependent parties in every instance. The courts dealing with disputes between taxpayers and taxation authorities support the position of taxation authorities. To minimize their risks, taxpayers must consider the trends in law enforcement practice.

Keywords: tax audits, price manipulation, pricing methods, market prices, transfer prices, interdependent entities, Controlled transactions, unjustified tax benefits, underreporting profits, tax disputes

DOI: 10.7256/2454-065X.2019.7.30536

Abstract: The object of this research is the legal relations associated with compensation for damage caused by unlawful decisions, actions (or inactions) of taxation authorities and their officials. The subject of this research is the arbitration practice with regards to compensation for damages inflicted by taxation authorities. Attention is paid to the established trend of the dismissal of claims on compensation for damages worded as “the expenditures of plaintiff are referred to regular business activity”. Analyzing the emergence of term “regular business activity” in the Russian legislation and evolution of the corresponding norms, as well as acts of interpretation of the supreme courts, the authors attempt to determine the normative grounds of using the aforementioned constructs in the tortious relations. The conclusion is made that within law enforcement practice has established a trend to justify the refusal in compensation for damages inflicted by taxation authorities attributed incurred expenses as part of “regular business activity”. The authors criticize such approach as normatively unsubstantiated.

Keywords: wrongful acts, responsibility of the public subject, violated right, loss, court costs, tax authorities, ordinary business activities, damage claims, arbitrage practice, government authorities

DOI: 10.7256/2454-065X.2017.2.21967

Abstract: The subject of the research is the problems connected with bringing to tax responsibility for payment (or underpayment) of taxes as a result of imperfect provisions of the Tax Code of the Russian Federation. The author criticises the legal definition of the illegal act described in Article 122 of the Tax Code of the Russian Federation. Klokov also examines all variants of punishable acts taking into account applicable law-enforcment practice. The research is focused on the analysis of the judicial approach to interpreting laws that regulate responsibility for non-payment (or underpayment) of taxes. In the course of his analysis of legal acts as wll as judicial law-enforcement acts, Klokov has applied comparative law, legalistic and statistical research methods. Based on the results of the research, the author proves the failure of exlusion of liability for non-delivering taxes as an illegal inactivity of a taxpayer in terms of the basic principles of tax liability. The results of the research can be used in the law-making process when preparing projects aimed at changing the Tax Code of the Russian Federation as well as law-enforcement practice of the Supreme Court of the Russian Federation.

Keywords: equality, justice, precedent, practice, composition, act, non-payment, tax, liability, proportionality

DOI: 10.7256/2454-065X.2019.1.28673

Abstract: The article is devoted to the fiscal aspects of participation in state and municipal procurements of inviduals relieved from value added tax as a result of special tax regime. In his article Cherepanov analyzes the correspondence between the Tax Code of the Russian Federation and provisions on procurements for public needs to the procurement price formation. The author analyzes the contradictory situation when the initial (maximum) procurement price is included as part of VAT which creates biased competitive advantages for individuals who pay VAT over individuals who do not pay it. To write this article, the author has used such methods as generalisation, analysis and comparison. Based on his analysis of law-enforcementn practice and explanations of the Russian Federation executive authorities, Cherepanov makes conclusions regarding the initial causes of associated tax disputes. As a result of his research, the author concludes that there is baseless common practice to include initial (maximum) procurement price for public needs as part of VAT. This violates the principles of fair competition and limits the participation of individuals who have been relieved from paying VAT as a result of application of a special tax regime. As one of the research outcomes, the author offers solutions of the aforesaid problem.

Keywords: indirect tax, special tax regime, tax exemption, competition, tax law, simplified taxation system, value added tax, competition authority, tax disputes, taxation

Abstract: The given article defines the role of personal income tax in mobilization of profits into the Russia’s budget and describes the new tax laws which came into force in 2012 as well as certain amendments to these laws which will come into force in 2013 and play a significant role for tax agents for personal income tax. The author also studies the controversial situations of paying personal income tax which underwent the court procedure of their resolution and have an important practical importance. The author develops the decision making algorithm in the taxation sphere based on the methods of tax calculation and using the experience of tax dispute resolution at a court.

Keywords: taxes and taxation, tax dispute, personal income tax, tax agent, taxable income, tax deduction, individual entrepreneur, revised tax declaration, special tax regime, tax offence.

DOI: 10.7256/2454-065X.2021.1.34707

Abstract: The problem of qualification of property became urgent in 2019, when corporate property tax was levied on movable property. Tax authorities began to reclassify movable property into immovable property, using the terms and constructions of civil legislation. This article examines such legal constructs as a single real estate complex, and its impact upon taxation of corporate property. Special attention given to the following questions: 1. What objects can be incorporated into a single real estate complex? 2. Whether the range of objects united by a single technological network can be recognized as a single real estate complex, if the right to ownership is not registered as for a single immovable object in the uniform state register? Based on the analysis of the actual arbitration cases, it is concluded that the concept of a single real estate complex was completely revised by the tax authorities, and then by the courts, violating the goals pursued by the legislator, who tried to encourage corporations to renovate fixed assets, intentionally excluding movable property as the object of taxation in the context of corporate property tax. The author concludes that the interpretation of the terms of civil legislation proposed by tax authorities and established in case law led to unfeasibility of the goals set for the legislator, as well as to violation of the fundamental tax principles.

Keywords: property tax, movable property, real estate, requalification of property, tax, object of taxation, single real estate complex, tax administration, unified real property unit, taxation

DOI: 10.7256/2454-065X.2015.4.13164

Abstract: The article analyzes acute problems of reviving Russia’s economy in the situation of financial instability through activation of investment operations. It should be noted that the Russian government attaches primary importance to taxation instruments as a measure of support to tax activities. Among such instruments, tax privileges and preferences should be mentioned. However, investors do not often use these preferences because of their small practicability and effectiveness. The authors also note that in the situation of absence of monitoring the courses of investments of monetary resources that disengage as a result of applying privileges and preferences, it is rather difficult to make conclusions concerning the effectiveness of applying such instruments by investors. An analysis of the existing mechanisms that promote an increase of effectiveness of investment project enabled the authors to reveal a number of disputable points in accounting of value-added taxes on advance payments for work (provision of services or supply of goods) that have been caused by disadvantages of the current tax legislature. The authors also analyze arbitration practice and come to the conclusion that the most problematic issues in this sphere are linked with the order of restitution of goods and services tax for producers of goods, works and services in cases of their preliminary gradual outpayment, which, in the conditions of ambiguous interpretations of the current tax legislation, may provoke withdrawals of an investor’s monetary resources from circulation. The authors suggest a number of amendments in the tax legislature, aimed at increasing the investment activity of entrepreneurs. Perfection of the taxation mechanism would produce only a limited effect if the tax reform is not linked with the budget policy. The measures for activation of investment activities with the help of perfecting the normative legal base for goods and services taxes, that are proposed in this article, may be helpful for attracting additional revenues in Russia’s budget system.

Keywords: investments and goods and services tax, restitution of goods and services tax, investment project, tax risk, principle of symmetry, taxation of investors, goods and services tax for advance repayments, transfer of repayment, calculation of goods and services tax, goods and services tax

DOI: 10.7256/2454-065X.2015.4.66416

DOI: 10.7256/2454-065X.2015.11.14784

Abstract: The research object is the legal qualification of the behavior in the field of legal regulation of taxation as the part of the process and result of the application for tax law standards. Up to the present moment the category of tax and legal qualifications has never been viewed as the sphere of scientific interest for financial law theorists. Therefore, on the basis of the provisions of the general theory of law and taking into consideration specific features of tax relation regulation, the author of the article provides the definition and contents of legal qualification of tax relevant behavior, describes its structural elements, offers a classification of this legal phenomenon and gives the theoretical basis for institutionalization of tax qualification as an independent type of legal qualification. Both scientific methods of formal logic (analysis, synthesis, comparison and analogy) and formal legal method of legal research formed the methodological basis of the research. The author formulates provisions explaining the legal and economic nature of the tax and legal evaluation of the taxpayer economic activity facts. Particular attention is paid to the description of sector-specific peculiarities that are unique to tax and legal qualifications and are not typical for legal qualification in other legal relationships which is caused by the content of the tax legislation standards and the practice of their application.

Keywords: Tax, Law, Legal qualification, Assessment, Taxpayer, Tax authority, Good behavior, Offence, Transaction, Tax lawsuit

DOI: 10.7256/2454-065X.2015.11.67130