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

of June 3, 2008 No. 3245/08

Presidium of the Supreme Arbitration Court of the Russian Federation in structure:

the chairman - the Chairman of the Supreme Arbitration Court of the Russian Federation Ivanov A. A.;

members of Presidium: Valyavina E. Yu., Vitryansky V. V., Vyshnyak N. G., Goryachevoy YU.YU., Zavyalova T. V., Ivannikova N. P., Kozlova A. S., Kozlova O. A., Sarbash S. V., Slesareva V. L., Yukhney M. F.

considered the application of Interdistrict Inspectorate of the Federal Tax Service N 7 across St. Petersburg about review according to the procedure of supervision of the resolution of the Thirteenth Arbitration Appeal Court of 31.10.2007 in the matter of N A56-46005/2006 of Arbitration Court of the city of St. Petersburg and the Leningrad region and the resolution of Federal Arbitration Court of the Northwestern Federal District of 31.01.2008 on the same matter.

Representatives participated in meeting:

from Interdistrict Inspectorate of the Federal Tax Service N 7 across St. Petersburg - Polikanov A. A., Proyavkina T. A., Utkina V. M., Shekhmametyev T. K.;

from limited liability company "Severmetall" of Kiselyov O. V.

Having heard and having discussed the report of the judge Goryacheva Yu. Yu. and explanations of representatives of persons participating in case, the Presidium established the following.

The Severmetall limited liability company (daleeobshchestvo) appealed to Arbitration Court of the city of St. Petersburg and the Leningrad region with the statement for recognition illegal failure to act of Interdistrict Inspectorate of the Federal Tax Service N 7 across St. Petersburg (further - inspection), the value added tax expressed in non-return of 12 402 539 rubles according to the tax declaration provided by society on the tax rate of 0 percent for March, 2006.

By the decision of Arbitration Court of the city of St. Petersburg and the Leningrad region of 01.08.2007 to society satisfaction of the requirement it is refused.

The thirteenth Arbitration Appeal Court the resolution cancelled of 31.10.2007 the decision, failure to act of inspection recognized illegal, having obliged to return to society 12 402 539 rubles of the value added tax.

The federal Arbitration Court of the Northwestern Federal District the resolution left of 31.01.2008 the court order of appellate instance without change.

In the application submitted to the Supreme Arbitration Court of the Russian Federation for review according to the procedure of supervision of the mentioned resolutions of courts of appeal and cassation instances inspection asks them to cancel as accepted with violation of regulations of substantive and procedural law.

In response on the statement society asks to leave the called court resolutions without change as corresponding to the current legislation.

Having checked justification of the arguments stated in the application, response on it and speeches of the representatives of persons participating in case who are present at meeting, the Presidium considers that the disputed resolutions of courts of appeal and cassation instances are subject to leaving without change on the following bases.

By Appeal Court it is determined that return of tax amount on value added is made by inspection according to statement details of 09.08.2006 of N 127, which arrived in its address on behalf of society, on the specific settlement account in open joint stock company "Avangard joint stock bank (further - bank) after obtaining from bank of the notification on accessory of the settlement account to society.

However the materials requested at bank by Trial Court when considering the case demonstrated opening of the settlement account by bank to Severmetall limited liability company with its identification taxpayer number (ITN), the primary state registration number (PSRN), registration address, but according to documents which contents did not correspond to the valid constituent and registration documents of society. Statement for opening of the account, dated 02.08. 2006, it is given to bank on behalf of the physical person entered in these documents who actually the participant or the head of society is not. The constituent documents processed allegedly in 2001 contain data on the passport of this person issued in 2002.

The tax amount on value added which arrived 23.08.2006 from Federal Treasury Department for St. Petersburg on the mentioned settlement account is completely listed according to the order of physical person - the artificial head of society - to three third parties as payment for goods. Other account transactions were not performed.

As proper bodies of society of participation in opening of the settlement account in bank did not accept, Appeal Court, being guided by Article 53 of the Civil code of the Russian Federation, recognized that the settlement account cannot be considered belonging to society.

The inspectorate did not produce the evidence confuting the following arguments of society: it the client of bank is not, did not open the settlement account in this bank, of 09.08.2006 N 127 about value added tax return through bank did not submit the application to inspection and did not receive the money which was due to it.

Under such circumstances the Appeal Court came to the conclusion supported by court of cassation instance about failure to carry out of obligation by inspectorate, stipulated in Item 4 articles 176 of the Tax Code of the Russian Federation on return to society of tax amount on value added as she transferred tax amount into the settlement account in bank which is not belonging to society.

This conclusion corresponds to the legislation and is lawful in view of the following.

According to article 31 of the Law of the Russian Federation of 02.12.1990 N 395-1 "About banks and banking activity" calculations through credit institutions are perfromed by the rules, forms and standards established by the Bank of Russia.

The obligation of identification of clients when opening and maintaining bank accounts is assigned to the credit institutions performing transactions with money, article 7 of the Federal Law of 07.08.2001 N 115-FZ "About counteraction of legalization (washing) of income gained in the criminal way and to terrorism financing" and also articles 5 and 30 of the Law of the Russian Federation of 02.12.1990 N 395-1 "About banks and banking activity".

Owing to unity of the rules applied for the purpose of identification of persons when carrying out clearing settlements according to public and civil obligations they are performed on identical conditions and attract for their participants identical structure of distribution of risks of execution of cash obligation to inadequate person.

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