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RESOLUTION OF THE PLENUM OF THE SUPREME ARBITRATION COURT OF THE RUSSIAN FEDERATION

of December 18, 2007 No. 65

About some procedural questions arising by consideration by Arbitration Courts of statements of the taxpayers connected with protection of the right to compensation of the value added tax on the transactions assessed by the called tax at the rate of 0 percent

Due to the questions of procedure for acceptance arising in law-enforcement practice to production and considerations of the applications of the taxpayers shown in court in protection of the right to compensation of the value added tax (further - the VAT) concerning transactions on sales of goods (works, services) assessed by the called tax at the rate of 0 percent, the Plenum of the Supreme Arbitration Court of the Russian Federation based on article 13 of the Federal constitutional Law "About Arbitration Courts of the Russian Federation" decides to give to Arbitration Courts (further - courts) the following explanations.

1. According to the current legislation the taxpayer, taking a legal action behind protection of the it is right on compensation of the VAT, have the right to show as the requirement of non-property nature - about contest of the decision (failure to act) of tax authority, and the requirement of property nature - about compensation of VAT amount (further - the requirement about compensation of the VAT).

The statement of the taxpayer for recognition illegal the decision (failure to act) of tax authority is adopted to production and is considered by court according to Chapter 24 of the Arbitral Procedure Code of the Russian Federation (further - the AIC of the Russian Federation), the statement for compensation of the VAT - by rules of claim production taking into account provisions of Chapter of 22 AIC of the Russian Federation.

In case of acceptance to production of the statement of the taxpayer for recognition illegal courts of the decision (failure to act) of tax authority need to mean that contents of such statement are determined by provisions of part of 1 Article of 199 AIC of the Russian Federation owing to which Items 2 and 5 the formulation of subject of requirement imposed in court is limited to designation of the disputed decision (failure to act).

If the taxpayer imposes in court at the same time both requirements and upon the demand of non-property nature the term established by part 4 Articles of 198 AIC of the Russian Federation is passed or recovery of the passed term it was refused, the court shall consider in essence the requirement of property nature as in relation to Item 3 of article 79 of the Tax Code of the Russian Federation (further - the Tax Code of the Russian Federation) such requirement can be imposed in court within three years considering from the date of when the taxpayer learned or shall learn about violation of the right to compensation of the VAT.

2. Provisions of Chapter 21 of the Tax Code of the Russian Federation, including Articles 165 and 176, establish certain procedure for realization by the taxpayer of the right to compensation of the VAT concerning transactions on sales of goods (works, services) assessed by the called tax at the rate of 0 percent.

According to this procedure consideration of the applications of taxpayers about compensation of the VAT and adoption of decisions on them is referred to competence of tax authorities which make such decisions by results of verification of the tax declaration provided by the taxpayer and documents attached to it, the stipulated in Article 165 Tax Code of the Russian Federation, and also in addition requested based on Item 8 of article 88 Tax Code of the Russian Federation of the documents confirming legitimacy of application of the tax deductions according to article 172 Tax Code of the Russian Federation.

As it is determined by Item 1 of article 172 Tax Code of the Russian Federation, the tax deductions are made based on the invoices exposed by sellers in case of acquisition by the taxpayer of goods (works, services), property rights, documents confirming the actual payment of tax amounts in case of commodity importation on customs area of the Russian Federation, the documents confirming payment of tax amounts, withheld by tax agents, or based on other documents in the cases provided by Items 3, 6 - 8 articles 171 of the Code.

Owing to part of 1 Article of 4 AIC of the Russian Federation the taxpayer can appeal to court only in case of violation of its right to compensation of the VAT that is when proper observance did not provide them with the regulated Chapter 21 of the Tax Code of the Russian Federation of the procedure realization of this right in administrative (extrajudicial) procedure because of non-execution or improper execution by tax authority of the obligations assigned to it by the law.

It is necessary to understand as non-compliance by the taxpayer with the ministerial (extrajudicial) procedure of compensation of the VAT established by the Tax Code of the Russian Federation not only its direct appeal to the court, passing tax authority, but also submission to tax authority together with the corresponding tax declaration of incomplete set of documents, the stipulated in Article 165 Tax Code of the Russian Federation.

Besides, the called procedure cannot be considered observed by the taxpayer if he does not fulfill requirement of tax authority imposed based on Item 8 of article 88 Tax Code of the Russian Federation about submission of the documents confirming legitimacy of application of the tax deductions. At the same time it is necessary to consider that submission of the documents having insignificant defects of form or content for the purpose of this explanation cannot be considered as non-presentation of these documents. In case of dispute relevancy of such defects is estimated by court,

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