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SOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS

of October 9, 2002 No. P-148/2002

About constitutionality of Item 23 of the decision of the Minsk city council of deputies from January 11, 2002 No. 219 "About city budget of Minsk for 2002" and other questions connected with the real estate tax

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., judges Podgrusha V. V., Sarkisovoy E.A., Tikovenko A. G., Filipchik R. I., G.B. Cone, Shuklina V. Z. considered based on Article part one 116, parts four of article 122 of the Constitution of the Republic of Belarus collective and personal addresses of citizens on the questions connected with calculation of the real estate tax.

In addresses opinions on inequality of the citizens having private households, and citizens who on the property right possess apartments in apartment houses are stated; about inequality of the citizens having houses in the city of Minsk and paying tax on the progressive scale approved by Item 23 of the decision of the Minsk city council of deputies from January 11, 2002 No. 219 "About city budget of Minsk for 2002" and the citizens living in other cities and regions of the republic paying tax at the percent 0,1 rate from the cost of structures; about overvaluation of assessment of private households.

Having analyzed relevant provisions of the Constitution of the Republic of Belarus, the laws "About the Real Estate Tax", "About the Budget of the Republic of Belarus for 2002", "About the Taxes and Fees Levied in the Budget of the Republic of Belarus" and other regulatory legal acts, the Constitutional Court established the following.

1. The premises belonging to physical persons on the property right in apartment houses are exempted from taxation on the real estate based on article 4 of the Law "About the Real Estate Tax" as privilege on tax. At the same time it is determined that in the presence at the payer of two and more premises only one premises at the choice of the payer are subject to release from taxation.

According to Articles 97, 98 Constitutions of the Republic of Belarus establishment of republican taxes and fees is within the competence of Parliament. From this constitutional regulation follows that the Parliament possesses the right to resolve in the law such major issues without which the tax liability and procedure for its execution cannot be considered certain (the subject object, tax rate, etc.), and also those from them which do not influence degree of definiteness of the tax liability. Tax benefits, in particular, concern to the last.

According to the Constitutional Court, establishment by Parliament of the Republic of Belarus within the competence of tax benefit in the form of release from taxation on the real estate of one of the premises belonging to physical person on the property right in apartment houses does not contradict the Constitution of the Republic of Belarus.

2. According to part two of Item 1 of article 3 of the Law "About the Real Estate Tax" the annual rate of tax on the cost of the residential buildings, outdoor constructions, garages belonging to physical persons, buildings and structures, to belonging garage building cooperatives, gardening partnerships created at the expense of personal fees of citizens, and also the buildings and structures used by entrepreneurs without formation of legal entity for implementation of the activities is established in the amount of percent 0,1.

At the same time by item 4 of article 44 of the Law "About the Budget of the Republic of Belarus for 2002" it is determined that in 2002 local councils of deputies have the right to increase (to reduce) rates, to provide to certain payers of privilege, to establish and change payment due dates of the real estate tax.

The constitutional court considers that as sources of forming of revenues of the budget are determined by the laws on the budget adopted annually and with respect thereto - features of the taxation in the next year, the provisions of the law about the budget in that case are priority.

The right of the Minsk city council of deputies to establishment in 2002 of rates of this tax, excellent from specified in the Law "About the Real Estate Tax", is realized by it in Item 23 of the decision of January 11, 2002 No. 219 "About city budget of Minsk for 2002".

Concerning opinion of applicants on excessiveness of tax amount on the real estate in the city of Minsk the Constitutional Court notes that application of the progressive scale of rates of tax approved by the Minsk city council of deputies really, considerably increases tax amount in comparison with the tax amount estimated using the percent 0,1 rate established by the Law "About the Real Estate Tax". So, if tax on the taxation object worth 31 million rubles (about one thousand 16,5 dale. The USA) at the rate of 0,1 of percent constitutes 31 thousand rubles, calculated at the rates approved by the Minsk city council of deputies - 145 thousand rubles, what is 4,7 times more.

According to the Constitutional Court, for ensuring protection of constitutional rights of citizens and their guarantee, elimination of inequality of taxpayers for the real estate of the different cities and regions of the republic and ensuring adoption of optimal solutions by local councils of deputies in the field of establishment of rates of this tax in the law on the budget of the Republic of Belarus for the next year it would be necessary to determine the maximum limits within which local councils of deputies can increase rates of the real estate tax.

The constitutional court notes also that the tax legislation provides number of privileges for the citizens needing social protection of the state. According to article 4 of the Law "About the Real Estate Tax" the buildings and structures belonging to retirement pensioners, disabled people of I and II groups and other disabled citizens in the absence of the able-bodied persons jointly living or which are registered jointly living according to the data of pokhozyaystvenny accounting or house registers which do not have sources of the income, liable to income tax tax authorities are exempted from taxation; the buildings and structures belonging to the military personnel of conscription service, participants of the Great Patriotic War and persons having the right to the preferential taxation according to the Law "About Veterans"; the buildings and structures located in the rural zone and belonging on the property right to the citizens who are constantly living in the rural zone.

Besides, according to part three of article 4 of the Law "About the Taxes and Fees Levied in the Budget of the Republic of Belarus" local councils of deputies or according to their order local executive and administrative organs have the right according to the procedure, established by acts of the President of the Republic of Belarus and the laws of the Republic of Belarus, to provide to physical persons of the Republic of Belarus privileges on the taxes and fees which are completely paid to local budgets.

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