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DETERMINATION OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION

of April 18, 2006 No. 87-O

According to the claim of Shipping agents private company to violation of constitutional rights and freedoms provisions of Article 169 and Item 1 of article 171 of the Tax Code of the Russian Federation

Constitutional court of the Russian Federation as a part of the Chairman V. D. Zorkin, judges N. S. Bondar, G. A. Gadzhiyev, Yu. M. Danilov, L. M. Zharkova, S. M. Kazantsev, M. I. Kleandrov, A. L. Kononov, L. O. Krasavchikova, S. P. Mavrin, Yu. D. Rudkin, N. V. Seleznyov, A.YA. Plums, V. G. Strekozov, O. S. Hokhryakova, B. S. Ebzeev, V. G. Yaroslavtsev,

having considered upon the demand of Sudovye agenty Ltd question of possibility of adoption of its claim to consideration in meeting of the Constitutional Court of the Russian Federation, established:

1. In the claim in the Constitutional Court of the Russian Federation Sudovye agenty Ltd disputes constitutionality of provisions of article 169 of the Tax Code of the Russian Federation - Item 2, according to which the invoices constituted and exposed with violation of the procedure established by Items 5 and 6 of this Article cannot be the basis for acceptance of the tax amounts shown to the buyer by the seller for value added to deduction or compensation; Items 5 and 6, fixing requirements to invoices, including about specifying of addresses and identification taxpayer numbers and the buyer. Besides, in the claim constitutionality of Item 1 of article 171 of the Tax Code of the Russian Federation according to which the taxpayer has the right to reduce the total amount of tax estimated according to article 166 of this Code on the tax deductions established by this Article is disputed.

As appears from the provided materials, the solution of inspection of the Ministry of Taxes and Tax Collection of the Russian Federation for the May Day district of the city of Vladivostok of March 30, 2004 to the applicant additionally accrued the value added tax as, according to tax authority, it illegally accepted to tax amount deduction, shown by the supplier. The resolution of Federal Arbitration Court of the Far Eastern Federal District of March 11, 2005 the decision of tax authority acknowledged legal. The court specified that the invoices provided to Sudovye agenty Ltd to reasons for application of deduction contain false information (the supplier whose location, according to constituent documents, is the city of Moscow to the actual and legal addresses is not and the reporting under the place of accounting does not represent to tax authority). By determination of the Supreme Arbitration Court of the Russian Federation of July 7, 2005 case referral in Presidium of the Supreme Arbitration Court of the Russian Federation for review according to the procedure of supervision it is refused.

According to the applicant, the challenged provisions of the Tax Code of the Russian Federation - in the sense given them by the developed law-enforcement practice - put the right the taxpayer of the tax deductions into dependence on observance of the tax legislation by his partners, and therefore there do not correspond to Articles 34, 35 and 57 Constitutions of the Russian Federation.

2. Constitutional court of the Russian Federation, having studied the materials provided by the applicant, does not find the bases for adoption of its claim to consideration.

The question raised in the claim of Sudovye agenty Ltd was object of research of the Constitutional Court of the Russian Federation earlier. In Determination of February 15, 2005 of N93-O about refusal in acceptance to consideration of the claim of Tayga-Eks LLC to violation of constitutional rights and freedoms provisions of Item 2 of Article 169, of paragraph two of Item 1 and Item 6 of Article 172 and the paragraph of the third item 4 of article 176 of the Tax Code of the Russian Federation the Constitutional Court of the Russian Federation specified that in sense of Item 2 of article 169 of the Tax Code of the Russian Federation compliance of the invoice to the requirements established by Items 5 and 6 of this Article allows to determine partners by the transaction (her subjects), their addresses, subject of the transaction (goods, works, services), quantity (amount) of the delivered (shipped) goods (works, services), the goods price (works, services), and also the amount of the accrued tax paid by the taxpayer and accepted by it further to deduction; the requirement of Item 2 of article 169 of the Tax Code of the Russian Federation according to which the taxpayer as the basis of the tax deduction can provide only the invoice containing all required data, and has no right to show to deduction the tax amount added according to the invoice in which data are reflected incorrectly or is incomplete, directed to creation of the conditions allowing to estimate legitimacy of the tax deduction and to stop the situations connected with unreasonable compensation (offsetting or return) of tax amounts from the budget; the called legislative provisions do not prohibit to accept to tax amount deduction on value added which calculation and registration conforms to all to requirements, necessary for implementation of tax control, and therefore cannot be considered as the limiting constitutional rights and freedoms of taxpayers.

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