of November 21, 2003 No. P-164/2003
About legal regulation of questions of collection of payment for maintenance of houses of housing cooperatives taking into account the land tax
Constitutional court of the Republic of Belarus as a part of the chairman - the Chairman of the Constitutional Court Vasilevich G. A., Boyko T. S. judges., Podgrusha V. V., Sarkisovoy E.A., Tikovenko A. G., Filipchik R. I., G.B. Cone, Shuklina V. Z. considered based on Article 40 and part one of article 116 of the Constitution of the Republic of Belarus collective and personal addresses of citizens about different conditions of payment of the land tax by citizens - owners of apartments in houses of housing cooperatives and citizens who on the property right possess apartments in apartment houses of the state housing stock.
Having analyzed relevant provisions of the Constitution of the Republic of Belarus, the Code of the Republic of Belarus about the earth, the Law of the Republic of Belarus "About payments for the earth" and other regulatory legal acts, the Constitutional Court established the following.
According to the Law "About Payments for the Earth" (further - the Law) payers of the land tax are legal entities and physical persons to which the parcels of land are provided in ownership, use or in property (Article 5); the taxation object is the parcel of land which is in ownership, use or property (Article 4).
30, of 31 Code of the Republic of Belarus about the earth (further - the Code) follows from the analysis of provisions of Articles that the right of permanent use, right of lifetime inheritable possession of the parcel of land and the right of private property to the parcel of land makes sure the state act from the moment of which receipt there is this right. In some cases according to the petition of the land owner, land user the relevant executive and administrative organ can resolve use of these parcels of land before issue of the specified document on condition of delimitation of the parcel of land in nature (on the area).
The constitutional court pays attention that the Resolution of the Supreme Council of the Republic of Belarus of February 18, 1991. "About holding land reform in the republic" the companies, organizations and the organizations having in use the parcels of land provided to them before enforcement of the Code of the Republic of Belarus about the earth of December 11, 1990 (was effective till January 1, 1999), owed process the documents certifying right of possession or the right of permanent use of the earth till January 1, 1994. After the termination of the specified term the right to use which is earlier granted to them the parcels of land was declared invalid (Item 8). It was entrusted to Council of Ministers to provide allocation of the corresponding money and material resources necessary for holding land reform (Item 9).
According to article 143-1 of the existing Code the parcels of land located in the territory of the Republic of Belarus irrespective of patterns of ownership and purpose are subject to the obligatory state cadastral registration, and the rights to them and transactions from nimiobyazatelny state registration.
At the same time studying of law-enforcement practice shows that if right to use by the parcels of land which are built up with houses of housing cooperatives is drawn up according to Code provisions, then acts of land use on the parcels of land occupied with the housing stock which is on balance of the housing repair and operational organizations most these organizations are absent.
The land tax from the parcels of land on which apartment houses of the state housing stock and the housing repair and operational associations which are in the actual use are located (further - ZhREO) is estimated and paid in proportion to building area. Payers of the land tax according to article 5 of the Law are legal entities - ZhREO. At the same time based on Item 57 of the Instruction on procedure for calculation and the payment of payments for the earth by legal entities approved by the resolution of the State Tax Committee of the Republic of Belarus of April 18, 2000 No. 33 (with changes and amendments), payments for the earth belong on costs on production and sales of goods (works, services).
The constitutional court notes that the Law "About the Budget of the Republic of Belarus for 2003" determines number of measures of social support of the population in the field of housing and communal services: according to article 9 of this Law in 2003 from local budgets about 35 percent of costs on rendering housing and communal services to the population in areas and to 28 percent in Minsk are financed. Funds of target collection for financing of the expenses connected with content and repair of housing stock according to Article 11 go to expenses on content and repair of housing stock, including housing cooperatives, partnerships of owners, and also to subsidies to legal entities on compensation of part of the costs connected with rendering housing and communal services to the population.
By regulations on procedure for use of funds of target collection for financing of the expenses connected with content and repair of housing stock including housing cooperatives, partnerships of owners, and on subsidy to legal entities on compensation of part of the costs connected with the rendering utilities to the population approved by the resolution of the Ministry of Housing and Public Utilities of the Republic of Belarus of March 25, 2002 No. 3, it is determined that expense recovery of legal entities (except those which expenses on content of housing are financed from the budget) on content and running repair of housing stock, including housing cooperatives, youth housing estates, partnerships of owners, is made less the added amounts of payment of citizens for maintenance of apartment houses and other profitable sources (the rent, etc.).
Thus, the legislation regulates questions of social support of the population in the field of housing and communal services taking into account the constitutional principle of equality of all before the law and is right without any discrimination on equal protection of the rights and legitimate interests (article 22 of the Constitution) and provides equal social support of citizens irrespective of, they live in houses of the state housing stock or houses of housing cooperatives.
At the same time the Constitutional Court pays attention that ZhREO pay the land tax from the amounts of the payment brought by residents for maintenance of the house which cost includes the amount of this tax. As source of payment of the land tax by housing cooperative which is taxpayer serves money of members of cooperative. At the same time in case services in maintenance of houses of housing cooperatives are rendered to ZhREO, when calculating payment for maintenance they do not consider the fact that housing cooperatives independently, by law, estimate and pay the land tax. Therefore, the amounts of the land tax paid to ZhREO are not subject to inclusion in the cost of services in maintenance of houses of housing cooperatives.
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