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RESOLUTION OF THE PLENUM OF SUPREME ECONOMIC COURT OF THE REPUBLIC OF BELARUS

of May 19, 2005 No. 21

About some questions connected using general part of the Tax code of the Republic of Belarus

(The last edition from 20-11-2013)

Due to the enforcement of the General part of the Tax code of the Republic of Belarus and for the purpose of explanation of some questions of application of the tax legislation Plenum of Supreme Economic Court of the Republic of Belarus, being guided by Articles 74, 75 Codes of the Republic of Belarus about judicial system and the status of judges,

DECIDES:

1. Economic courts of the Republic of Belarus (further - economic courts) should mean that the General part of the Tax code of the Republic of Belarus (further - the Code) is enacted since January 1, 2004, except for provisions, for which the Law of the Republic of Belarus of January 4, 2003 "About enforcement of the General part of the Tax code of the Republic of Belarus" (The national register of legal acts of the Republic of Belarus, 2003, No. 8, 2/933; No. 85, 2/977) (further the introduction Law) are established other terms of entry into force.

Article 7-9 of the Code, the providing types of the taxes levied in the territory of the Republic of Belarus, charges (duties), and Article 11, of 12, the establishments providing procedure, introductions, changes and cancellation of republican taxes, charges (duties), local taxes and charges, according to article 1 of the introduction Law become effective from the date of introduction of the Special part of the Tax code of the Republic of Belarus (further - the Special part).

With respect thereto economic courts by consideration of the disputes following from tax legal relationship need to mean that before entry into force of the Special part Kodeksa in the territory of the Republic of Belarus taxes, charges (duties) established by legal acts and acts of regional councils of deputies, the Minsk city council of deputies, Councils of deputies of basic territorial level are levied.

2. According to article 3 of the introduction Law of provision of the Code are applied to the relations regulated by the tax legislation and which arose since January 1, 2004. To the relations regulated by the tax legislation and which arose till January 1, 2004, the Code is applied to the rights and obligations which arose after its introduction in action.

Applying the specified regulation, economic courts shall mean that the introduction Law does not allow giving of retroactive effect to provisions of the Code.

3. Draw the attention of economic courts that according to Articles 39, 42 Economic Procedure Codes of the Republic of Belarus (further - HPK) are subordinated to economic courts disputes with participation of the Ministry of Taxes and Tax Collection of the Republic of Belarus and inspections of the Ministry of Taxes and Tax Collection of the Republic of Belarus (further - tax authorities).

4. In particular, tax authorities can participate as claimants (applicants) in cases:

about tax collection, collection (duty), penalty fee for the account of property of the payer (other obliged person);

about recognition of transactions (agreements) invalid (about establishment of the facts of negligibility of transactions);

about liquidation of the organizations and the termination of activities of individual entrepreneurs;

about recognition by the performed payer (other obliged person) of activities illegal and application of effects;

about economic insolvency (bankruptcy) of the payer (other obliged person);

about attraction to subsidiary responsibility of owners of property of the organization, founders (participants) or other persons, including the head of the organization having the right to give instructions, obligatory for the organization, or having opportunity otherwise to determine its actions;

and also in other cases provided by legal acts.

5. By hearing of cases in which tax authorities act as interested persons (defendants) economic courts need to mean that by article 85 of the Code each payer (other obliged person) is granted the right to appeal the decision of tax authority, action (failure to act) of their officials if the payer (other obliged person) considers that the decision or action (failure to act) contradicts the requirements established by tax or other legislation or violates the payer's rights (other obliged person).

In stipulated in Clause 229 HPK procedure economic courts check legality of decisions of tax authorities, actions (failure to act) of their officials:

about property attachment;

about indisputable tax collection, collection (duty), penalty fee for the account of money on accounts of the payer (other obliged person) of the organization;

about indisputable tax collection, collection (duty), penalty fee for the account of cash of the payer (other obliged person) of the organization;

about indisputable tax collection, collection (duty), penalty fee for the account of means of debtors of the payer (other obliged person) - the organizations;

about withdrawal of documents, things, other inventory items of the payer (other obliged person);

about suspension of account transactions in bank;

about refusal in offsetting, return of excessively paid amount of tax, collection, duty;

about refusal in offsetting of excessively collected tax amount, collection (duty);

about refusal in adoption of the tax declaration (calculation) for tax, collection (duty) with the made changes and additions;

about distribution of the data which are tax secret;

and also in other cases, stipulated by the legislation.

Cases from administrative and other public legal relationship to which cases on check of legality of substandard legal acts of tax authorities, actions (failure to act) of their officials belong are considered according to the procedure, HPK determined by Chapters 23 and 25.

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