On behalf of the Russian Federation

RESOLUTION OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION

of May 31, 2018 No. 22-P

On the case of check of constitutionality of provisions of article 217 of the Tax Code of the Russian Federation in connection with request of the Novocherkassk garrison military court

Constitutional court of the Russian Federation as a part of the Chairman V. D. Zorkin, K. V. Aranovsky's judges, A. I. Boytsova, N. S. Bondar, G. A. Gadzhiyev, Yu. M. Danilov, L. M. Zharkova, S. M. Kazantsev, S. D. Knyazev, A. N. Kokotov, L. O. Krasavchikova, S. P. Mavrin, N. V. Melnikov, Yu. D. Rudkin, O. S. Hokhryakova, V. G. Yaroslavtsev,

being guided by Article 125 (part 4) Constitutions of the Russian Federation, part one Item 3.1, parts three and the fourth Article 3, Article part one 21, Articles 36, 47.1, 74, 86, 101, 102 and 104 Federal constitutional laws "About the Constitutional Court of the Russian Federation",

considered in meeting without carrying out hearing case on check of constitutionality of provisions of article 217 of the Tax Code of the Russian Federation.

Reason for consideration of the case was the request of the Novocherkassk garrison military court. The basis to consideration of the case was the found uncertainty in question of whether there correspond the Constitutions of the Russian Federation disputed by the applicant of legislative provision.

Having heard the message of the judge-speaker L. M. Zharkova, having researched the submitted documents and other materials, the Constitutional Court of the Russian Federation

established:

1. According to article 217 of the Tax Code of the Russian Federation the following income types of physical persons are not subject to the taxation (are exempted from the taxation):

public welfare payments, except for temporary disability benefits (including care allowance for a sick the child), and also other payments and compensations paid according to the current legislation. At the same time to benefits, non-taxable, unemployment benefits, to pregnancy and childbirth belong (Item 1);

all types the established current legislation of the Russian Federation, legal acts of subjects of the Russian Federation, decisions of representative bodies of the local self-government of the compensation payments (within the regulations established in accordance with the legislation of the Russian Federation) connected with indemnification, caused by mutilation or other damage of health; free provision of premises and utilities, fuel or corresponding cash compensation; payment of cost and (or) issue of the relying natural allowance, and also with payment of money instead of this allowance; payment of cost of power supply, sports equipment, the equipment, sports and full dress received by athletes and employees of the sports organizations for training process and participation in sports competitions and also sports judges for participation in sports competitions; dismissal of workers, except for compensations for unused leave and benefits amounts in the form of dismissal wage, average monthly earnings for employment, compensation to the head, deputy managers and the chief accountant of the organization in the part exceeding in general the triple size of average monthly earnings or the sixfold size of average monthly earnings for the workers dismissed from the organizations located in the region of the Far North and the areas equated to them; death of the military personnel or government employees in case of execution of the service duties by them; compensation of other expenses, including expenses on increase in professional level of workers; execution by the taxpayer of labor obligations (including moving for work to other area and compensation of traveling expenses) (Item 3).

Constitutionality of the given legislative provisions asks to check the Novocherkassk garrison military court in which production there is case on the administrative action for declaration of the serviceman R. M. Bakhishev on contest of the actions of Single settlement center of the Ministry of Defence of the Russian Federation connected with tax withholding on the income of physical persons from article 11 of the Federal Law paid to it according to Item 3 of May 27, 1998 No. 76-FZ "About the status of the military personnel" monetary compensation in the amount of monetary pay for every put additional day of rest.

As appears from case papers, to the claimant passing military service under the contract, the specified monetary compensation was paid based on orders of the commander of body from April 21, 2015 till April 30, 2017 in the amount of 537 483 rub 17 kopeks (on average monthly in the amount of 23 000 rub). From this payment (the right to which the claimant as it is specified in his petition, received as he from the date of acceptance of cases and position was attracted according to the relevant orders to the events held if necessary without restriction of general duration of weekly working hours) the income tax in the amount of 69 873 rub was withheld and listed in the income of the federal budget.

Afterwards Single settlement center of the Ministry of Defence of the Russian Federation, based on explanation of the Ministry of Finance of the Russian Federation (the letter of January 18, 2017 No. 03-04-09/1802) according to which before entering of necessary changes into the legislation on taxes and fees uncertainty of provisions of article 217 of the Tax Code of the Russian Federation cannot form the basis for taxation on the income of physical persons of the specified monetary compensation return of earlier withheld tax amounts from November, 2016 till September, 2017 in the amount of 31 993 rub made to the claimant (replies of Single settlement center of the Ministry of Defence of the Russian Federation of February 12, 2018 and the Ministry of Defence of the Russian Federation of April 19, 2018).

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