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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 disputes 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.

Based on the resolution of Presidium of the Supreme Arbitration Court of the Russian Federation of March 29, 2005 on case on the statement of JSC Silikatchik Production Commercial Firm in which it is specified that drawing of the requirement about the tax discharge is measure of forced nature money transfer in pursuance of the decision of tax authority cannot be considered as voluntary execution by the taxpayer of obligations on the tax discharge and collection and consequently, transfer of money by it on account of the additionally accrued decision of tax authority of tax and penalty fee has character of collection by tax authority of shortage, Federal State Unitary Enterprise 123 Aviatsionny remontny zavod directed to the Supreme Arbitration Court of the Russian Federation the application for review according to the procedure of supervision of the decision of Arbitration Court of the Novgorod region of August 6, 2004 and the resolution of Federal Arbitration Court of the Northwestern Federal District of November 23, 2004. The Supreme Arbitration Court of the Russian Federation, refusing case referral in Presidium of the Supreme Arbitration Court of the Russian Federation, referred to the fact that arbitral practice according to the matter of argument is created by Presidium of the Supreme Arbitration Court of the Russian Federation how the court resolutions disputed by the applicant were taken out (determination of June 21, 2005). Besides, the Arbitration Court of the Novgorod region determination of June 20, 2005 refused allowance of the application of Federal State Unitary Enterprise 123 Aviatsionny remontny zavod about review on newly discovered facts of the decision of August 6, 2004, and the Federal Arbitration Court of the Northwestern Federal District confirmed with the resolution of September 20, 2005 legality of this determination.

According to the applicant, the paragraph one of item 4 of article 79 of the Tax Code of the Russian Federation taking into account the sense given it by law-enforcement bodies contradicts the Constitution of the Russian Federation, its Articles 19 (part 1) and 53, as does not allow the fair taxpayers who voluntarily performed decisions of tax authorities or court resolutions which took legal effect which were acknowledged afterwards illegal courts and are cancelled, to draw interest from the budget, subject to charge on the amount of the taxes which are excessively collected from them.

2. According to Article 15 (part 2) of the Constitution of the Russian Federation public authorities, local government bodies, officials, citizens and their associations shall observe the Constitution of the Russian Federation and the laws.

In sense of this provision as specified the Constitutional Court of the Russian Federation in the Resolution of June 17, 2004 N 12-P on the case of check of constitutionality of Item 2 of Article 155, of Items 2 and 3 of Article 156 and paragraph of the twenty second of Article 283 of the Budget code of the Russian Federation in relation to the sphere of financial regulation (Article 71, the Item, Constitutions of the Russian Federation), the federal legislator in the course of implementation of such regulation shall provide legal mechanisms of law enforcement in this sphere, including measures of the state coercion.

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