of June 3, 2008 No. 3245/08
Presidium of the Supreme Arbitration Court of the Russian Federation in structure:
the chairman - the Chairman of the Supreme Arbitration Court of the Russian Federation Ivanov A. A.;
members of Presidium: Valyavina E. Yu., Vitryansky V. V., Vyshnyak N. G., Goryachevoy YU.YU., Zavyalova T. V., Ivannikova N. P., Kozlova A. S., Kozlova O. A., Sarbash S. V., Slesareva V. L., Yukhney M. F.
considered the application of Interdistrict Inspectorate of the Federal Tax Service N 7 across St. Petersburg about review according to the procedure of supervision of the resolution of the Thirteenth Arbitration Appeal Court of 31.10.2007 in the matter of N A56-46005/2006 of Arbitration Court of the city of St. Petersburg and the Leningrad region and the resolution of Federal Arbitration Court of the Northwestern Federal District of 31.01.2008 on the same matter.
Representatives participated in meeting:
from Interdistrict Inspectorate of the Federal Tax Service N 7 across St. Petersburg - Polikanov A. A., Proyavkina T. A., Utkina V. M., Shekhmametyev T. K.;
from limited liability company "Severmetall" of Kiselyov O. V.
Having heard and having discussed the report of the judge Goryacheva Yu. Yu. and explanations of representatives of persons participating in case, the Presidium established the following.
The Severmetall limited liability company (daleeobshchestvo) appealed to Arbitration Court of the city of St. Petersburg and the Leningrad region with the statement for recognition illegal failure to act of Interdistrict Inspectorate of the Federal Tax Service N 7 across St. Petersburg (further - inspection), the value added tax expressed in non-return of 12 402 539 rubles according to the tax declaration provided by society on the tax rate of 0 percent for March, 2006.
By the decision of Arbitration Court of the city of St. Petersburg and the Leningrad region of 01.08.2007 to society satisfaction of the requirement it is refused.
The thirteenth Arbitration Appeal Court the resolution cancelled of 31.10.2007 the decision, failure to act of inspection recognized illegal, having obliged to return to society 12 402 539 rubles of the value added tax.
The federal Arbitration Court of the Northwestern Federal District the resolution left of 31.01.2008 the court order of appellate instance without change.
In the application submitted to the Supreme Arbitration Court of the Russian Federation for review according to the procedure of supervision of the mentioned resolutions of courts of appeal and cassation instances inspection asks them to cancel as accepted with violation of regulations of substantive and procedural law.
In response on the statement society asks to leave the called court resolutions without change as corresponding to the current legislation.
Having checked justification of the arguments stated in the application, response on it and speeches of the representatives of persons participating in case who are present at meeting, the Presidium considers that the challenged resolutions of courts of appeal and cassation instances are subject to leaving without change on the following bases.
By Appeal Court it is determined that return of tax amount on value added is made by inspection according to statement details of 09.08.2006 of N 127, which arrived in its address on behalf of society, on the specific settlement account in open joint stock company "Avangard joint stock bank (further - bank) after obtaining from bank of the notification on accessory of the settlement account to society.
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