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DETERMINATION OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION

of December 27, 2005 No. 503-O

According to the claim of the federal state unitary enterprise "123 Aircraft repair plant" on violation of constitutional rights and freedoms paragraph one of Item 4 of article 79 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, Yu. M. Danilov, L. M. Zharkova, G. A. Zhilin, S. M. Kazantsev, M. I. Kleandrov, A. L. Kononov, L. O. Krasavchikova, S. P. Mavrin, N. V. Melnikov, Yu. D. Rudkin, N. V. Seleznyov, A.YA. Plums, V. G. Strekozov, O. S. Hokhryakova, B. S. Ebzeev, V. G. Yaroslavtsev,

having heard the conclusion of the judge M. I. Kleandrov who was carrying out preliminary studying of the claim of Federal State Unitary Enterprise 123 Aviatsionny remontny zavod based on article 41 of the Federal constitutional Law "About the Constitutional Court of the Russian Federation" in plenary meeting established:

1. In the claim in the Constitutional Court of the Russian Federation Federal State Unitary Enterprise 123 Aviatsionny remontny zavod challenges constitutionality of paragraph one of Item 4 of article 79 of the Tax Code of the Russian Federation according to which the amount of excessively collected tax returns with the percent added on it due to general receipts to the budget (off-budget fund) in which the amount of excessively collected tax were credited.

As appears from the provided materials, Federal State Unitary Enterprise 123 Aviatsionny remontny zavod, performing the decisions of tax authorities and Arbitration Court of the Novgorod region passed in 2001-2002, in 2002 paid to the budget additional payments on the income tax by offsetting of the being available overpayment on this tax. In 2003-2004 Arbitration Court of the Novgorod region, being guided by Determination of the Constitutional Court of the Russian Federation of April 8, 2003 N115-O about official explanation of Determination of the Constitutional Court of the Russian Federation of November 13, 2001 of N225-O (accepted including according to the claim of Federal State Unitary Enterprise 123 Aviatsionny remontny zavod), granted its applications for review on newly discovered facts of the specified judgments.

Believing that the amounts of additional payments paid in 2002 are excessively collected tax, Federal State Unitary Enterprise 123 Aviatsionny remontny zavod in January-February, 2004 filed in tax authority petitions for return of these amounts with charge of percent on them according to Item 4 of article 79 of the Tax Code of the Russian Federation, however in the terms established by the law the tax authority did not make charge of percent. Allowance of the application about recognition by illegal the decision of Arbitration Court of the Novgorod region of August 6, 2004 left without change by the resolution of Federal Arbitration Court of the Northwestern Federal District of November 23, 2004 of failure to act of tax authority, Federal State Unitary Enterprise 123 Aviatsionny remontny zavod it was refused with reference to the fact that it, though in pursuance of requirements of tax authorities and decisions of Arbitration Courts, but voluntarily paid tax payments to the budget, and, therefore, to consider these payments excessively collected that involves charge of percent on them, the bases are not available.

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