DETERMINATION OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION

of July 16, 2013 No. 1173-O

At the request of Arbitration Court of the city of Moscow about check of constitutionality of Item 16 of article 1 of the Federal law "About Modification of Part the Second Tax Code of the Russian Federation and Separate Legal Acts of the Russian Federation" and part 3 of article 2 of the Federal Law "About modification of Chapter 26 parts two of the Tax Code of the Russian Federation

Constitutional court of the Russian Federation as a part of the Chairman V. D. Zorkin, K. V. Aranovsky's judges, A. I. Boytsova, N. S. Bondar, G. A. Gadzhiyev, Yu. M. Danilov, L. M. Zharkova, G. A. Zhilin, S. M. Kazantsev, M. I. Kleandrov, S. D. Knyazev, A. N. Kokotov, L. O. Krasavchikova, S. P. Mavrin, N. V. Melnikov, Yu. D. Rudkin, N. V. Seleznyov, O. S. Hokhryakova, V. G. Yaroslavtsev,

having considered question of possibility of acceptance to consideration of request of Arbitration Court of the city of Moscow in meeting of the Constitutional Court of the Russian Federation,

established:

1. In the request in the Constitutional Court of the Russian Federation the Arbitration Court of the city of Moscow disputes constitutionality of the following legislative provisions:

Item 16 of article 1 of the Federal Law of November 28, 2011 No. 338-FZ "About modification of part the second the Tax Code of the Russian Federation and separate legal acts of the Russian Federation", Item 2 of article 342 of the Tax Code of the Russian Federation which stated the subitem 10 in the following edition: "If other is not stipulated in Item 1 this Article, the taxation is made by severance tax on the tax rate of 556 rubles (for the period from January 1 to December 31, 2012 inclusive), 590 rubles (for the period from January 1 to December 31, 2013 inclusive), 647 rubles (since January 1, 2014) for 1 ton of the extracted gas condensate from all types of fields of hydrocarbonic raw material;

As appears from the provided materials, in production of Arbitration Court of the city of Moscow there is case on the statement of Northgas Ltd to Interregional Inspectorate of the Federal Tax Service on the largest taxpayers No. 2 about recognition invalid decisions of July 23, 2007 regarding the offer to pay shortage on severance tax (gas condensate).

The applicant claims that Item 16 of article 1 of the Federal Law which is subject to application by consideration of this case of November 28, 2011 brought No. 338-FZ in Item 2 of article 342 of the Tax Code of the Russian Federation of change because of which calculation of tax became impossible in view of the arisen contradiction of precepts of law. As for part 3 of article 2 of the Federal Law of November 29, 2012 No. 204-FZ, as the applicant specifies, this regulation gave retroactive effect to changes which eliminated the specified contradictions, but as a result there was legal situation when the taxpayer could not estimate tax according to the procedure established by the Federal Law of November 28, 2011 No. 338-FZ and applied old regime, however following the results of cameral check to it taking into account provisions of the Federal Law of November 29, 2012 No. 204-FZ additionally accrued shortage on severance tax, penalty fee and penalty are added.

With respect thereto the applicant asks to recognize contradicting article 57 of the Constitution of the Russian Federation provisions of Item 16 of article 1 of the Federal Law of November 28, 2011 No. 338-FZ and part 3 of article 2 of the Federal Law of November 29, 2012 No. 204-FZ in that part in what they in the sense given them by law-enforcement practice allow possibility of additional accrual to the taxpayer in bigger amount of severance tax on formula of determination of payable tax at the rate of the work of amount of gas condensate and fixed rate during the period from January 1 to December 31, 2012. The applicant also asks to recognize not to the relevant article 57 of the Constitution of the Russian Federation part 3 of article 2 of the Federal Law of November 29, 2012 as No. 204-FZ as giving retroactive effect to the law worsening situation of the taxpayer.

2. Constitutional court of the Russian Federation, having studied the provided materials, does not find the bases for acceptance of this request to consideration.

According to the Constitution of the Russian Federation everyone shall pay legally established taxes and fees (Article 57); the laws establishing new taxes or worsening situation of taxpayers have no retroactive force; the federal taxes and charges are under authority of the Russian Federation (Article 71, the Item "z"); the system of the taxes levied in the federal budget, and the general principles of the taxation and charges in the Russian Federation are established by the Federal Law (Article 75, part 3).

As repeatedly specified the Constitutional Court of the Russian Federation in the decisions, owing to the given constitutional provisions determination of economic feasibility of introduction of this or that tax, establishment and change of list of taxpayers and essential elements of the tax liability belongs to powers of the legislator; permission of such questions to the Constitutional Court of the Russian Federation not subordinated, except as specified, when the new legal act is given retroactive effect and it worsens provision of taxpayers and when the tax law breaks the constitutional principle of equality.

The Federal Law of November 28, 2011 to No. 338-FZ changed the tax rate on severance tax concerning gas condensate and is determined that the taxation is made on the tax rate of 556 rubles (for the period from January 1 to December 31, 2012 inclusive), 590 rubles (for the period from January 1 to December 31, 2013 inclusive), 647 rubles (since January 1, 2014) for 1 ton of the extracted gas condensate from all types of fields of hydrocarbonic raw material (Item 16 of Article 1). The specified provision became effective since January 1, 2012 (part 3 of article 6 of the Federal Law of November 28, 2011 No. 338-FZ).

At the same time, as noted the Constitutional Court of the Russian Federation, some inaccuracy of yuridiko-technical nature allowed by the legislator in case of legislative provision formulation though complicates explanation of its valid sense, however does not give the grounds for conclusion that it is uncertain, indistinct, not containing well-defined standards and, therefore, to not answering principles of the tax legislation in the constitutional state as they are enshrined in the Constitution of the Russian Federation. The similar ambiguities revealed in the course of application of tax regulations in specific legal situations are eliminated by interpretation of these regulations by law-enforcement bodies, including courts.

Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info