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On behalf of the Russian Federation

RESOLUTION OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION

of March 13, 2008 No. 5-P

On the case of check of constitutionality of separate provisions of subitems 1 and 2 of Item 1 of article 220 of the Tax Code of the Russian Federation in connection with claims of citizens S. I. Anikin, N. V. Ivanova, A. V. Kozlov, V. P. Kozlov and T. N. Kozlova

Constitutional court of the Russian Federation as a part of the chairman - the judge B. S. Ebzeev, judges N. S. Bondar, G. A. Gadzhiyev, A. L. Kononov, L. O. Krasavchikova, S. P. Mavrin, A.YA. Plums, V. G. Strekozova, V. G. Yaroslavtsev,

with participation of the citizen S. I. Anikin, the representative of the State Duma - Candidate of Law Sciences D. D. Tsabriya, the representative of the Federation Council - the doctor of jurisprudence E. V. Vinogradova, the plenipotentiary of the President of the Russian Federation in the Constitutional Court of the Russian Federation M. V. Krotov,

being guided by Article 125 (part 4) Constitutions of the Russian Federation, Item 3 parts one, parts three and the fourth Article 3, Item 3 parts two of Article 22, Articles 36, 74, 86, 96, 97 and 99 Federal constitutional Laws "About the Constitutional Court of the Russian Federation",

considered case on check of constitutionality of separate provisions of subitems 1 and 2 of Item 1 of article 220 of the Tax Code of the Russian Federation in open session.

Reason for consideration of the case were claims of citizens S. I. Anikin, N. V. Ivanova, A. V. Kozlov, V. P. Kozlov and T. N. Kozlova. The basis to consideration of the case was the found uncertainty in question of whether there correspond the Constitutions of the Russian Federation challenged by applicants of legislative provision.

As all claims concern the same subject, the Constitutional Court of the Russian Federation, being guided by article 48 of the Federal constitutional Law "About the Constitutional Court of the Russian Federation", connected cases on these claims in one production.

Having heard messages of judges-speakers G. A. Gadzhiyev and A.YA. Plums, explanations of agents of the parties, opinion of the specialist - Candidate of Law Sciences I. A. Tsindeliani, speech of the representatives invited in meeting: from the Government of the Russian Federation - the plenipotentiary of the Government of the Russian Federation in the Constitutional Court of the Russian Federation M. Yu. Barshchevsky, from the Prosecutor General of the Russian Federation - A. G. Kalugina, having researched the submitted documents and other materials, the Constitutional Court of the Russian Federation

established:

1. Of the subitem 2 of Item 1 of article 220 of the Tax Code of the Russian Federation in the edition operating before entry into force of the Federal Law of August 20, 2004 N 112-FZ it was provided by the paragraph to the fourth, in particular, that in case of property acquisition in common ownership the size of the property tax deduction on income tax estimated according to this subitem is distributed between co-owners according to their ownership ratio.

The citizen N. V. Ivanova challenging constitutionality of the called legislative provision who after acquisition according to the purchase and sale agreement of the apartment granted the certificate on state registration on it and on her juvenile son of the right of common ownership to real estate in April, 2004 addressed to interdistrict inspectorate of the Ministry of Taxes and Tax Collection of the Russian Federation N 2 across the Republic of Karelia with the statement for provision of the property tax deduction on income tax in the amount spent for acquisition of the apartment in the amount of actually made expenses as it is provided by the subitem 2 of Item 1 of article 220 of the Tax Code of the Russian Federation. After conducting cameral tax audit of the declaration on the income submitted to N. V. Ivanova the tax authority refused provision of the property tax deduction in the part which is due on share of her juvenile son. The Segezha city court of the Republic of Karelia met the requirement of the declarant about recognition of refusal of tax authority illegal, however the judicial board on civil cases of the Supreme Court of the Republic of Karelia cancelled resolution of the Trial Court. Passing the new decision on refusal in satisfaction of requirements of the declarant, the court of cassation instance recognized that the minor child is not subject which is granted the right to the property tax deduction, and the tax legislation does not connect the right of the taxpayer to receipt of this deduction with acquisition of property by it in property of other persons, including minor children.

According to N. V. Ivanova, the legislative provision applied in its case taking into account the sense given it by law-enforcement practice contradicts Articles 7, 15 (part 4), 17, 18, 19 (part 2), 38 (part 2), 40 (part 1) and 60 Constitutions of the Russian Federation as deprives her and her juvenile son of the right to the property tax deduction on income tax from actually made expenses on acquisition of the apartment.

The citizen S. I. Anikin challenges constitutionality of provision of the paragraph of the fourth subitem 1 of Item 1 of article 220 of the Tax Code of the Russian Federation in the edition operating before entry into force of the Federal Law of August 20, 2004 N 112-FZ according to which in case of realization of the property which is in common ownership, the size of the property tax deduction estimated according to this subitem is distributed between co-owners of this property in proportion to their share.

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