of February 1, 2001 No. P-106/2001
About the dismissal wage paid according to the legislation based on the collective agreement in case of dismissal of the worker in connection with oknochaniye of the duration of the contract
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., Vorobey G. A., Kenik K. I., Podgrusha V. V., Tikovenko A.G., Filipchik R. I., G.B. Cone, Shuklina V. Z., having considered based on Article 40 and part one of article 116 of the Constitution the appeal of trade-union committee ON Belaruskali on the taxation of the dismissal wages provided by the collective agreement and paid in case of dismissal in connection with the termination of the duration of the contract with the worker who acquired pension entitlement on age or disability established the following.
By part one of Article 48 of the Labor code it is determined that the dismissal wage is paid in the cases provided by the Labor code and other acts of the legislation, the collective agreement, the agreement. In addition to the cases of dismissal wage payment established by the Labor code and other acts of the legislation, the legislation, thus, grants the right to resolve this issue at the local level - in collective agreements and agreements of the parties. In the addresses which arrived in the Constitutional Court it is specified that the collective agreement existing in ON Belaruskali provides dismissal wage payment depending on work uninterrupted length of service in consolidation in case of dismissal in connection with the termination of the duration of the contract to the workers (except part-time employees) who acquired pension entitlement on age. In practice there was question of legitimacy of the taxation of the dismissal wages provided by in addition collective agreements.
According to subitem 1.36 of Item 1 of article 3 of the Law of December 21, 1991. "About the income tax from physical persons" (in edition of the Law of March 9, 1999) the dismissal wages paid in cases, stipulated by the legislation the Republic of Belarus are not assessed with the income tax. In subitem 3.1.36 of Methodical instructions for calculation and payment of the income tax from the physical persons approved by the order of the State Tax Committee of the Republic of Belarus of April 6, 1999 No. 62 (with changes and amendments of October 23, 2000 No. 95), is this the exhaustive list of cases in case of which approach the paid dismissal wages are not subject to the taxation. It is determined also that the dismissal wage is not subject to the taxation and in the amount of, exceeding the minimum size established by acts of the legislation of the Republic of Belarus provided that such exceeding is provided by local regulations (the collective agreement, the agreement and others - Article 7 of the Labor code). However the dismissal wage payments provided according to the legislation (Article 48 of the Labor code) collective agreements are not included in this list.
The warranty sum of money paid to the worker in case of dismissal at the initiative of the employer for its innocent actions for the reasons which are not depending on the worker, and also on the circumstances which are not depending on will of the parties is considered dismissal wage. The purpose of dismissal wage consists in mitigation, nastupayemy for the worker in connection with loss of work by it.
The constitutional court of the Republic of Belarus notes inconsistency of the current legislation in the field of regulation of the relations in connection with establishment and dismissal wage payment, and also their taxation. According to Article 48 of the Labor code the size of dismissal wage can increase without restrictions, including in dismissal cases on the bases which are directly specified in Article 48 of the Labor code.
On the one hand, dismissal wages according to Methodical instructions are not subject to the taxation and in the amount of, exceeding the size established directly by acts of the legislation provided that such exceeding is provided by local regulations, and on the other hand, in case of establishment of dismissal wages in other cases based on local regulations according to the legislation (Article 48 of the Labor code) the taxation is performed.
In article 3 of the Law of December 20, 1991. "About the taxes and fees levied in the budget of the Republic of Belarus" (with changes of December 22, 1992) it is provided that inclusion of the provisions regulating the tax matters in other acts of the legislation is not allowed. At the same time according to Article 109 of the Labor code deduction from dismissal wage, compensation and other payments on which according to the legislation collection does not address are not allowed. At the same time it is possible to draw conclusion that it is about all dismissal wages including as increased at the local level in the sizes in comparison with the minimum sizes determined by the Labor code and established by the collective agreement, the agreement of the parties.
According to article 10 of the Law "About Regulatory Legal Acts of the Republic of Belarus" the code has higher legal force, than the law. The new regulatory legal act has big legal force in relation to the regulatory legal act of the same state body which is earlier adopted on the same question. According to article 71 of the called law in case of collision between regulatory legal acts subjects of legal relationship shall be guided by regulation of the act having higher legal force. In this regard provisions of the Labor code shall have priority.
The constitutional court in this regard considers that there is no legal basis for establishment by bylaws of procedure when from one type (size) of dismissal wages tax deduction would be made, and from others - no. This right belongs to the legislator and it can be realized taking into account need of providing ratio of regulations taking into account their legal force.
According to the Constitutional Court, the right of the legislator to provide the taxation from those payments which considerably exceed the generally established sizes, or from dismissal wages which are entered at the local level is not excluded. However the solution of the matter shall be performed taking into account the requirements of Article 137 and other articles of the Constitution of the Republic of Belarus oriented to formation in the Republic of Belarus of the social state.
Besides, the Constitutional Court pays attention to inconsistency of the terms used in regulations and concepts of rather warranty and compensation payments.
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