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

of July 23, 2009 No. 54

About some questions which arose at the Arbitration Courts by hearing of cases connected with collection of the land tax

Due to the questions which arose in court practice connected with collection of the land tax and for the purpose of ensuring uniform approaches to their permission the Plenum of the Supreme Arbitration Court of the Russian Federation based on article 13 of the Federal constitutional Law "About Arbitration Courts in the Russian Federation" decides to make to Arbitration Courts the following explanations.

1. According to Item 1 of article 388 of the Tax Code of the Russian Federation (further - the Tax Code of the Russian Federation) payers of the land tax the organizations and physical persons having the parcels of land on the property right, the right of permanent (termless) use or right of lifetime inheritable possession are recognized.

According to Item 1 of Article 131 of the Civil code of the Russian Federation the specified rights to the parcel of land are subject to state registration which owing to Item 1 of article 2 of the Federal law "About State Registration of the Rights to Real Estate and Transactions with It" is the single proof of existence of the registered right.

With respect thereto courts need to recognize that behind the exceptions stipulated in items 4 and 5 these resolutions, payer of the land tax is person who in the Unified State Register of Rights real estate and transactions with it (further - the register) is specified as having the property right, the right of permanent (termless) use or right of lifetime inheritable possession to the corresponding parcel of land.

Therefore obligation to pay the land tax there is at such person from the moment of registration behind it one of the called rights to the parcel of land, that is entering of record into the register, and stops from the date of entering into the register of record about the right of the other person to the corresponding parcel of land.

2. Owing to Item 1 of article 389 Tax Code of the Russian Federation the taxation object is the parcel of land which according to Article 11.1 of the Land code of the Russian Federation is understood as part of the land surface which borders are determined according to the Federal Laws.

Therefore, the taxation object will arise only when the specific parcel of land is created.

3. By hearing of cases, connected with collection of the land tax, courts should consider that payers of this tax are also persons though which are not mentioned in Item 1 of Article 20 of the Land code of the Russian Federation among possible owners of the right of permanent (termless) use to the parcels of land, however based on Item 3 of this Article keeping the specified right which arose before enforcement of the called Code.

4. According to Item 1 of article 6 of the Federal law "About State Registration of the Rights to Real Estate and Transactions with It" of the right to real estate, arisen until entry into force of this Law, are recognized legally valid and in the absence of their state registration which is carried out at the request of owners.

At the same time, as appears from Item 9 of article 3 of the Federal law "About Enforcement of the Land Code of the Russian Federation", the state acts, certificates and other documents certifying land rights and issued before enforcement of the Federal Law "About State Registration of the Rights to Real Estate and Transactions with It" have equal legal force with entries in the register.

Therefore based on Item 1 of article 388 Tax Code of the Russian Federation the payer of the land tax also person whose property right, the right of permanent (termless) use or right of lifetime inheritable possession to the parcel of land makes sure the act (the certificate or other documents) of the right of this person to this parcel of land issued by authorized body of the government according to the procedure, established by the legislation existing in the place and at the time of the publication of such act is recognized.

5. As in case of universal succession (reorganization of legal entities, except for allocations, and also inheritance) the corporeal rights to the parcels of land mentioned in Item 1 of article 388 Tax Code of the Russian Federation pass directly by law, legal successors become payers of the land tax irrespective of registration of transition of the appropriate right.

6. In case of permission of question of the one who is payer of the land tax concerning the parcel of land on which the apartment house is located - owners of residential and non-residential premises in this house or condominium, Arbitration Courts need to consider that the fact of creation of condominium in itself does not mean that the called partnership becomes the payer of the land tax instead of owners of residential and non-residential premises in this house.

7. Items 1 and 2 of article 390 Tax Code of the Russian Federation provide that the tax base is determined by the land tax as the cadastral cost of the parcel of land which is established according to the land legislation.

If the cadastral cost of the parcel of land at the time of emergence of disputable legal relationship is not established, Arbitration Courts should be guided by provisions of Article 65 of the Land code of the Russian Federation and Item 13 of article 3 of the Federal law "About Enforcement of the Land Code of the Russian Federation" according to which if the cadastral cost of the earth is not determined, in this case for the purposes of the taxation the standard price of the earth is applied.

8. By hearing of cases, connected with collection of the land tax, Arbitration Courts should recognize that not development of the parcel of land acquired (provided) for housing construction is not the basis for refusal in application of the lowered rate of the land tax, stipulated in Item 1 article 394 Tax Code of the Russian Federation.

9. Taxpayers - physical persons which based on Item 5 of article 391 Tax Code of the Russian Federation have the right to apply for deduction from tax base in the amount of 10 000 rubles can use it and in case the corresponding parcel of land is used by these citizens for the purposes of business activity.

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