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

of September 12, 2013 No. BAC-10992/2013

About refusal in allowance of the application about recognition of the explanations containing in paragraphs the twenty ninth, thirtieth and thirty first Letters of the Federal Tax Service of the Russian Federation of 12.08.2009 No. ShS-22-3/634 @, not corresponding to the Tax Code of the Russian Federation

The substantive provisions of the decision are announced on September 5, 2013

The decision is made in full on September 12, 2013

The Supreme Arbitration Court of the Russian Federation as a part of the chief judge V. M. Tumarkin, E. N. Zarubina's judges, M. G. Zorina considered in proceeding in open court the application of joint-stock company of the simplified structure of "RENAULT SAMARA" (France) on behalf of branch of joint-stock company of the simplified structure of "RENAULT SAMARA" about recognition invalid paragraphs of the twenty ninth, thirtieth, thirty first letter of the Federal Tax Service of 12.08.2009 No. ShS-22-3/634 @ "About procedure for creation of invoices by tax agents".

Representatives took part in judicial session:

from the applicant - joint-stock company of the simplified structure of "RENAULT SAMARA" (France) on behalf of branch of joint-stock company of the simplified structure of "RENAULT SAMARA" - Kravchinsky L. V., Kononova A. S. (powers of attorney from 25.07.2013),

from the Federal Tax Service - Duminskaya O. S. (the power of attorney of 23:08. 2013), A.V. French (power of attorney of 13:09. 2012).

The protocol of judicial session was taken by the assistant judge M. V. Mokhova.

The court established:

the joint-stock company of the simplified structure of "RENAULT SAMARA" (France) on behalf of branch of joint-stock company of the simplified structure of "RENAULT SAMARA" (further - branch of the foreign organization) appealed to the Supreme Arbitration Court of the Russian Federation with the statement specified in preliminary and judicial meetings for recognition not corresponding to the Tax Code of the Russian Federation (further - the Code) letters of the Federal Tax Service of 12.08.2009 No. ShS-22-3/634 @ "About procedure for creation of invoices by tax agents" (further - the letter of FNS of Russia) regarding the explanations containing in paragraphs the twenty ninth, thirtieth and thirty first, and invalid in the specified parts.

The branch of the foreign organization claims that the disputed paragraphs of the letter of FNS of Russia illegally interfere with tax agents - the buyers performing payments to the foreign persons (who are not staying on tax accounting and recognized by taxpayers on value added) on account of the forthcoming deliveries of goods (performance of works, rendering services) or transfers of property rights (held and paid to the budget the amount of this tax on advance payment amounts, partial advance payment on such transactions), to declare the tax deductions on the value added tax in tax period of payment by tax agents of the called tax in the budget.

Having heard and having discussed explanations of representatives of the applicant and the Federal Tax Service, having researched the produced evidence, the court comes to conclusion about lack of reasons for satisfaction of the petition of the Federal Tax Service for suit abatement and for satisfaction of the requirements declared by branch of the foreign organization.

According to Item 1.1 of part 1 of Article 29 and parts 2 and 4 of Article 191 of the Arbitral Procedure Code of the Russian Federation Arbitration Courts consider according to the procedure of administrative legal proceedings the economic disputes and other cases connected with implementation by the organizations and citizens of business and other economic activity arising from administrative and other public legal relationship including on contest of the regulatory legal acts affecting the rights and legitimate interests of the applicant in the field of business and other economic activity if consideration of such cases according to the Federal Law is referred to competence of Arbitration Court; production on cases on contest of regulatory legal acts is initiated based on statements of the interested persons who addressed with the requirement about recognition of such act invalid; cases on contest of regulatory legal acts are considered in Arbitration Court if their consideration according to the Federal Law is referred to competence of Arbitration Court.

According to Item 1 of part 2 of Article 34 of the Arbitral Procedure Code of the Russian Federation the Supreme Arbitration Court of the Russian Federation considers as Trial Court cases on contest of regulatory legal acts of the President of the Russian Federation, the Government of the Russian Federation, the federal executive bodies affecting the rights and legitimate interests of the applicant in the field of business and other economic activity, except for cases, specified in part 4 of the specified Article.

Permission of question of jurisdiction to Arbitration Court of case on the statement for recognition invalid regulatory legal act depends on its specific content, nature of legal relationship concerning which there was dispute, including from whether mentions the disputed regulatory legal act of the right and legitimate interests of the applicant in the field of business and other economic activity.

Therefore the issue of jurisdiction of case on contest of regulatory legal act shall be resolved by Arbitration Court on the basis of establishment and the research of the actual facts of the case important for its consideration, including connected with determination of the nature containing in the challenged provision of the rule, legislative regulation in this sphere. At the same time permission of question of whether normative nature carries this or that act of public authority, shall be made irrespective of its form, content and other conditions, for example state registration, publication in the official publication.

The Federal Law of 02.07.2013 No. 153-FZ "About modification of part one of the Tax Code of the Russian Federation" (became effective from 03:08. 2013) excluded from competence of Arbitration Courts consideration of claims to regulations about taxes and fees.

The statement of branch of the foreign organization for recognition of the letter of FNS of Russia by partially invalid arrived in the Supreme Arbitration Court of the Russian Federation 30.07.2013, it is accepted to production determination of 02.08.2013.

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