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Герб  оссии

ON BEHALF OF THE RUSSIAN FEDERATION
DECISION OF THE SUPREME ARBITRATION COURT OF THE RUSSIAN FEDERATION

of August 2, 2013 No. BAC-6446/13

About recognition of the second offer of the subitem 5 of Item 28 of Bases of pricing in the field of regulated prices (rates) in power industry, утв. Order of the Government of the Russian Federation of 29.12.2011 No. 1178, not corresponding to article 1 of the Civil Code of the Russian Federation, articles 6 and 23 of the Federal Law of 26.06.2003 No. 35-FZ

The substantive provisions of the decision are announced on July 29, 2013

The complete text of the decision is made on August 2, 2013

Took part in judicial session:

from the Government of the Russian Federation on behalf of Federal Tariff Service according to the order of 10.06.2013 No. SP-P9-3898 (further - Federal Tariff Service): Barinov E. V. by proxy of 01.10.2012 No. 10/13; D. I. Poor people by proxy of 17.04.2013 No. DB/13; Metsayev B. K. by proxy of 16.08.2012 No. 8/13; Stepanenko I. G. by proxy of 24.10.2012 No. 12/13.

The District Power Networks limited liability company of the representative did not send to judicial session and asked to consider case in its absence.

The court established:

District Power Networks limited liability company (Tynda; further - society) appealed to the Supreme Arbitration Court of the Russian Federation with the statement for recognition of the subitem 5 of Item 28 of Bases of pricing in the field of regulated prices (rates) in power industry approved by the order of the Government of the Russian Federation of 29.12.2011 No. 1178 (further - pricing Bases), not to the relevant articles 1, of 421, of 424, of 606, 654 Civil codes of the Russian Federation, to Articles 6, 23 Federal Laws of 26.03.2003 No. 35-FZ "About power industry" (further - the Law on power industry), parts 2 of article 1 of the Federal Law of 26.07.2006 No. 135-FZ "About protection of the competition" (further - the Competition act), to the Federal Law of 21.11.1996 No. 129-FZ "About financial accounting" (further - the Law on financial accounting), to articles 253 and 264 of the Tax Code of the Russian Federation and invalid (taking into account written amendments 21.06.2013 and amendments of 05.07.2013 to the statement).

According to the subitem 5 of Item 28 of Bases of pricing the structure of other expenses which are considered in case of determination of necessary gross revenue (further - NVV) joins payment for ownership and (or) use of property, including payments in the federal budget for use of the property which is in federal property, except for the costs connected with lease of the objects of electric grid economy which are not relating to single national (all-Russian) power network if the owner of objects of electric grid economy is the single consumer of the services in transfer of electrical energy rendered with use of the specified objects of electric grid economy and also if the specified objects are considered in base of the invested capital of the other network organizations. Rent expenses are determined by regulating authority proceeding from the size of depreciation and the property tax relating to leasable property.

The applicant believes that the last offer of the given Item without the bases established by the legislation limits the right of the lessee to inclusion of rent expenses in structure of the other expenses considered in case of determination of NVV in that part in which the specified regulation does not provide accounting as a part of these expenses of other taxes paid by owners of property, of obligatory payments, the costs relating on product cost for the lessor, profits of the lessee and also completely excludes part of the rent constituting the income of the lessor. Society considers that having set such restrictions in the absence of the regulation of the Federal Law allowing it, the Government of the Russian Federation exceeded the authority. Besides, it assigned not stipulated by the legislation obligation to the lessor to allocate the amount of the depreciation charges as a part of the rent and the property tax that in the absence of such separation deprives of the lessee of opportunity to consider and these amounts as a part of expenses. According to the applicant, the disputed regulation contradicts Articles 1, of 2, of 421, of 424, of 606, 654 Civil codes of the Russian Federation, to articles 6 and 23 of the Law on power industry, requirements of financial accounting and the tax legislation to the list of expenses of the organization and their registration.

Society specifies that restriction of the amount of the rent and need of allocation of depreciation expenses and the property tax interferes with realization of powers of local government bodies according to the conclusion of lease agreements of municipal property and determination of the amount of the rent which are stipulated in Item the 10th article 35 of the Federal Law of 06.10.2003 No. 131-FZ "About the general principles of the organization of local self-government in the Russian Federation" and regulations of municipalities.

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