SOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS

of April 10, 2002 No. P-140/2002

About establishment of fixed amounts of the income tax when letting premises in Minsk

Constitutional court of the Republic of Belarus as a part of the chairman - the Chairman of the Constitutional Court Vasilevich G. A., vice-chairman Maryskin A. V., Boyko T. S. judges., Vorobey G. A., Kenik K. I., Podgrusha V. V., Sarkisovoy E.A., Tikovenko A. G., Filipchik R. I., G.B. Cone, Shuklina V. Z., having considered based on Article 40, Article parts one 116, of part four of article 122 of the Constitution of the Republic of Belarus the address of the citizen - the resident of Minsk about application of fixed rate of the income tax in case of the taxation of the income from letting of the room in premises (apartment), established the following.

The taxation of income gained by physical persons according to employment contracts (subhiring) of premises is made according to article 16 of the Law of the Republic of Belarus "About the income tax from physical persons" (further - the Law), as well as other income of the physical persons which are not listed in other articles of the Law. According to Item 2 of article 6 of the Law on the determined President of the Republic of Belarus and (or) the Government of the Republic of Belarus to separate types of activity the Government of the Republic of Belarus establishes procedure and payment due dates of fixed amounts of the income tax. Regional and Minsk city Councils of deputies on each type of activity depending on goods turnover, product assortment (goods, works, services), the number of the involved workers and other features of activities establish the size of fixed amounts of the income tax.

The list of types of the business activity performed by citizens without formation of legal entity on whom regional and Minsk city Councils of deputies can establish the income tax rates from citizens in the firm amounts is approved by the resolution of the Cabinet of Ministers of the Republic of Belarus of April 27, 1995 No. 228 "About approval of the list of types of the business activity performed by citizens without formation of legal entity on whom regional and Minsk city Councils of deputies can establish the income tax rates from citizens in the firm amounts and procedure for collection of the income tax from citizens in the firm amounts" (is effective with changes and additions made by the orders of the Government of June 20, 1995 No. 312, of February 28, 1996 No. 149, of February 20, 1997 No. 107, of September 5, 1997 No. 1182, of June 9, 1999 No. 864). This list includes delivery to citizens in lease (for rent) of residential and non-residential premises.

No. 400 "About approval of types of the business activity performed by citizens without formation of legal entity, and the income tax rates in the firm amounts" is approved by the decision of the Minsk city executive committee of June 22, 1995 the list of types of the business activity performed by citizens without formation of legal entity on whom the income tax rates in the firm amounts are established. In line item of the 14th this list (appendix 1 to the decision) letting of premises and rate of tax is specified: one-room apartment - 12 monthly minimum wages, two-room - 24, three-room - 36. According to Item 1.3 of the decision the specified rates are applied when letting not only of apartments, but also houses and other isolated rooms; when letting part of the room (share) of rate go down for 50 percent. The decision of the Minsk city executive committee of March 28, 1996 No. 207 (further - the solution No. 207) this list is approved in the new edition. Tax rates when leasing (for rent) of premises did not change (line item 25 Lists). In Item 5 of the decision No. 207 application of the specified rates in case of delivery to citizens is also provided in lease (for rent) not only apartments, but also the isolated premises and rate reduction for 50 percent in case of lease of part (share) of premises.

The constitutional court pays attention that these decisions of the Minsk city executive committee were made by it with exceeding of the powers. According to the Law of the Republic of Belarus of December 29, 1994. "About modification and amendments in the laws of the Republic of Belarus on the tax matters", to the Government containing the order to determine types of the business activity performed by citizens without formation of legal entity on whom regional and Minsk city Councils of deputies can establish the income tax from citizens in the firm amounts and procedure for its collection and to the resolution of the Cabinet of Ministers of the Republic of Belarus accepted in pursuance of this Law of April 27, 1995 No. 228 such powers Councils of deputies had only regional and Minsk city.

The Minsk city council of deputies the list of types of the business activity performed by citizens without formation of legal entity, and annual rates of the income tax in the firm amounts were established by the decision of November 19, 1997 No. 111 "About approval of the list of types of the business activity performed by citizens without formation of legal entity". Tax rates, as well as in decisions of the Minsk city executive committee, are established for calculation of tax only when leasing (for rent) of apartments: one-room, two-room, three-room and more (line item 25 specified the list). At the same time unlike decisions of the Minsk city executive committee the decision of the Minsk city council of deputies does not contain regulations on data application of rates in cases of letting of others, in addition to apartments, types of premises or part of premises, including rooms in apartments or part of living space.

The analysis of law-enforcement practice shows that as the decision of the Minsk city executive committee No. 207 in accordance with the established procedure was not cancelled or declared invalid, it is applied by the state tax authorities, in particular, in case of the taxation of the income from letting of the isolated premises (houses), rooms in apartments, etc. (Item 5 of the decision).

The constitutional court notes that such practice does not accord with the principle of prohibition of compulsion enshrined in article 58 of the Constitution to fulfillment of duties, not provided by the Constitution of the Republic of Belarus and its laws.

According to article 7 of the Constitution the state, all its bodies and officials are effective within the Constitution and acts of the legislation adopted according to it. Rule-making activities of state bodies cannot contradict the principles and general requirements, including the requirement about acceptance (edition) of regulatory legal act by the representative of that by state body established in Articles 7, 9 Laws of the Republic of Belarus "About regulatory legal acts of the Republic of Belarus" within its competence.

Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info