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RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE REPUBLIC OF BELARUS

of December 19, 2019 No. 6

About application of the legislation by courts by consideration of the economic and civil cases arising from tax legal relationship

Having discussed results of studying and generalization of court practice, for the purpose of ensuring the correct and uniform application of the legislation by consideration of the economic and civil cases arising from tax legal relationship, the Plenum of the Supreme Court of the Republic of Belarus DECIDES:

1. Draw the attention of courts that the correct and uniform application of the legislation by consideration of the economic and civil cases arising from tax legal relationship is guarantee of constitutional right of citizens and legal entities for judicial protection (part one of article 60 of the Constitution of the Republic of Belarus), it is designed to provide protection of their rights and legitimate interests, and also interests of the state and society, compliance with law by participants of the tax relations, to promote increase in efficiency of state policy in the field of the taxation.

2. By consideration of the economic and civil cases arising from tax legal relationship, courts should be guided by the Constitution of the Republic of Belarus, the Tax code of the Republic of Belarus (further - the Tax Code), the Decree of the President of the Republic of Belarus of November 23, 2017 No. 7 "About development of entrepreneurship", presidential decrees of the Republic of Belarus of October 16, 2009 No. 510 "About enhancement of control (supervising) activities in the Republic of Belarus" and of August 11, 2011 No. 366 "About some questions of notarial activities", and also other regulatory legal acts.

If the international treaty of the Republic of Belarus establishes other regulations on the tax matters, than those which contain in the Tax Code and other legal acts of the Republic of Belarus then are applied regulations of the international treaty if other is not determined by provisions of part two of Item 2 of Article 5 of the Tax Code.

In case of collision of acts of the tax legislation among themselves or with other regulatory legal acts containing the tax matters, courts should be guided by the rules established by items 4 and the 5th Article 3 of the Tax Code.

Courts need to differentiate the tax relations and the property relations regulated by the civil legislation because owing to item 4 of Article 1 of the Civil code of the Republic of Belarus the civil legislation is not applied to the tax relations if other is not stipulated by the legislation.

3. Explain to courts that treat participants of the tax relations:

taxpayers, charges (duties) - the organizations (Item 2 of Article 14 of the Tax Code), physical persons, including individual entrepreneurs (Item 5 of Article 14, Article 19 of the Tax Code) to which according to the tax legislation the obligation is assigned to pay taxes, charges (duties);

tax agents (Item 1 of Article 23 of the Tax Code);

other obliged persons and their representatives (subitems 2.11 and 2.34 of Item 2 of Article 13 of the Tax Code);

tax authorities - the Ministry of Taxes and Tax Collection, inspectorates of the Ministry of Taxes and Tax Collection for areas and Minsk, areas, cities, areas in the cities (subitem 3.3 of Item 3 of Article 13 of the Tax Code);

other authorized bodies:

state control bodies - the State Control Committee, its territorial authorities, territorial authorities of financial investigations of the State Control Committee (subitem 3.4 of Item 3 of Article 13 of the Tax Code, articles 1 and 2 of the Law of the Republic of Belarus of July 1, 2010 No. 142-Z "About the State Control Committee of the Republic of Belarus and its territorial authorities");

customs and financial bodies, republican state bodies, local authorities and self-government (subitem 2.34 of Item 2, subitems 3.6 and 3.7 of Item 3 of Article 13 of the Tax Code).

Other bodies, the organizations, officials in cases, stipulated by the legislation also treat participants of the tax relations.

4. Draw the attention of courts that proceeding from the principle of presumption of conscientiousness of the taxpayer, charges (duties) the burden of proof of non-execution or improper execution by the payer of the tax liabilities and (or) other obligations assigned by the tax legislation, groundlessness of offsetting (return) of the paid taxes of charges (duties) lies on tax and other authorized bodies, their officials (subitem 1.4 of Item 1 of Article 2 of the Tax Code).

If during consideration of the economic and civil cases arising from tax legal relationship gaps in legal regulation of the tax relations, internal contradictions in acts of the tax legislation or other shortcomings creating legal uncertainty are established, courts should be guided by provisions of Item 6 of Article 3 of the Tax Code.

5. Explain that taking into account provisions of Article 42 of the Economic Procedure Code of the Republic of Belarus (further - HPK) and Article 37 of the Code of civil procedure of the Republic of Belarus (further - GPK) the following economic and civil cases arising from tax legal relationship are subordinated to courts, in particular:

about recognition invalid fully or partially decisions of tax, other authorized bodies;

about recognition illegal (illegal) actions (failure to act) of tax, other authorized bodies, their officials;

about contest of executive or other document on which collection is made in indisputable procedure;

about tax collection, charges (duties), penalty fee, including at the expense of property of the payer (other obliged person);

about return from the budget of the amounts of taxes, charges (duties), penalty fee.

By legal acts other cases arising from tax legal relationship also can be referred to competence of the courts.

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