of January 12, 2011
About interpretation of Articles 78. 3, 85.4, 90.3 and 93.1.1 of the Tax code of the Azerbaijan Republic
Name of the Azerbaijan Republic
Plenum of the Constitutional Court of the Azerbaijan Republic as a part of Farkhad Abdullaev (chairman), Sona Salmanova, Fikret Babayev, Sudaby Gasanova, Rovshan Ismailov, Dzheykhun Garadzhayev, Raphael Gvaladze (judge-speaker), Iza Nadzhafova and Kamran Shafiyev,
with participation of the court secretary Ismail Ismailov,
representatives of the interested subjects - the deputy minister on taxes of the Azerbaijan Republic Sahir Mamedkhanov, the deputy head of department of the organization of work on recovery by enforcement of tax debts of the Ministry of taxes Eldar Aliyev, the main consultant of Department of the administrative legislation of the Device of Millie of Majlis of the Azerbaijan Republic Rovshan Suleymanov, the judge of the Baku Local Economic court No. 1 Takhira Asadova,
the expert - the associate professor of Civil process, the labor and environmental law of the Baku state university, the doctor of philosophy on jurisprudence Afet Mirzoyeva,
specialists - the managing department of Tax policy and the income of the Ministry of Finance of the Azerbaijan Republic Jamil Alizadeh, the manager of Legal department of the Ministry of Economic Development of the Azerbaijan Republic,
according to part IV and VI of article 130 of the Constitution of the Azerbaijan Republic considered in proceeding in open court according to the procedure of special constitutional legal proceedings the constitutional case in connection with request of the Cabinet of Ministers of the Azerbaijan Republic and the appeal of the Baku Local Economic court No. 1.
Having heard the report of the judge R. Gvaladze, speech of representatives of the interested subjects and specialists, the expert opinion on case, having researched and having discussed case papers, the Plenum of the Constitutional Court of the Azerbaijan Republic established:
In the request which arrived in the Constitutional Court of the Azerbaijan Republic (further - the Constitutional Court) the Cabinet of Ministers of the Azerbaijan Republic asks:
give interpretation to articles 78.3 and 90.3 of the Tax Code of the Azerbaijan Republic (further - the Tax Code) according to requirements of the Code of penal procedure of the Azerbaijan Republic (further - the Code of Criminal Procedure), concerning possibility of their application concerning the decisions made in connection with providing the civil action;
give interpretation of possibility of application according to requirements of the Code of civil procedure of the Azerbaijan Republic (further - GPK) and CODE OF CRIMINAL PROCEDURE Item 2 of Article 2 of the Law of the Azerbaijan Republic "About insolvency and bankruptcy" (further - the Law "About Insolvency and Bankruptcy") in the relation to not performed resolutions (sentences) according to article 23.1.3 of the Law of the Azerbaijan Republic "About execution" (further - the Law "About Execution") the civil action accepted in connection with satisfaction, the added percent and the applied financial sanctions against the amount provided with the court verdict.
In request in connection with Articles 78.3 and 90.3 of the Tax Code it was noted that on the criminal cases begun based on article 213 of the Criminal Code of the Azerbaijan Republic (further - UK) according to Chapter XIX of the Code of Criminal Procedure as the civil claimant tax authorities are attracted. In the court verdicts accepted for such category on row with appointment of the punishment prescribed in the penal legislation, payment of the main tax debt in the government budget is specified. However, here to the amount of principal debt the penalties and financial sanctions added (established) by tax authorities and actually these payments are not brought are left without execution.
At the same time, one of the difficulties which arose in case of execution of sentences is connected using concerning the accused persons of means, uklonenny from the taxation. So, absence at these persons of sufficient property for return of these means, serves as the reason of return of writ of execution of the Law "About Execution" issued according to Article 23.1.3.
In that case, in request the possibility of application in total of Articles 78.3 and 90.3 of the Tax Code, for the purpose of implementation of execution of adjudications and for compensation of damage caused to the government budget as a result of tax avoidance is specified. In request it is specified that execution of the tax liabilities is provided in Article 78.3 of the Tax Code not as obligation of management of the legal entity, and in general as obligation of the legal entity who is taxpayer. And in article 90.3 of the Code, in connection with failure to carry out of this obligation, the procedure for the belongings list of the taxpayer and sale of the described property on open auction based on the judgment made according to the procedure of civil production are established. Along with principal debt application of this procedure creates condition for collection of accrued fines and financial sanctions.
The second question which is brought up in request is also connected by execution of sentences and the decisions made according to the procedure of criminal and civil trial. In request to ask to give introduction of clarity concerning possibility of implementation of execution of such court resolutions as a result of process of insolvency of "bankruptcy" of the legal entity provided by the Law "About Insolvency and Bankruptcy".
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