On behalf of the Russian Federation
of June 25, 2015 No. 16-P
On the case of check of constitutionality of Item 2 of Article 207 and article 216 of the Tax Code of the Russian Federation in connection with the claim of the citizen of the Republic of Belarus S. P. Lyarsky
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, O. S. Hokhryakova, V. G. Yaroslavtsev,
with participation of the plenipotentiary of the State Duma in the Constitutional Court of the Russian Federation D.F. Vyatkin, the plenipotentiary of the Federation Council in the Constitutional Court of the Russian Federation A. I. Alexandrov, the plenipotentiary of the President of the Russian Federation in the Constitutional Court of the Russian Federation M. V. Krotov,
being guided by Article 125 (part 4) Constitutions of the Russian Federation, Item 3 parts one, parts three and the fourth Article 3, Article part one 21, Articles 36, 74, 86, 96, 97 and 99 Federal constitutional Laws "About the Constitutional Court of the Russian Federation",
Reason for consideration of the case was the claim of the citizen of the Republic of Belarus S. P. Lyarsky. The basis to consideration of the case was the found uncertainty in question of whether there correspond the Constitutions of the Russian Federation disputed by the applicant of legislative provision.
Having heard the message of the judge-speaker Yu. M. Danilov, explanation of the agent of the party, adopted and signed the disputed act, performances invited in meeting of the plenipotentiary of the Government of the Russian Federation in the Constitutional Court of the Russian Federation M. Yu. Barshchevsky and also representatives: from the Prosecutor General of the Russian Federation - T. A. Vasilyeva, from the Ministry of Justice of the Russian Federation - M. A. Melnikova, from the Federal Tax Service - V. V. Zvankova, having researched the submitted documents and other materials, the Constitutional Court of the Russian Federation
1. According to Item 2 of article 207 of the Tax Code of the Russian Federation (in initial edition) tax residents - taxpayers on the income of physical persons are the physical persons which are actually in the Russian Federation at least 183 calendar days within 12 following in a row months; the period of finding of physical person in the Russian Federation is not interrupted for the periods of its departure out of limits of the territory of the Russian Federation for short-term (less than six months) treatment or training. Article 216 of this Code recognizes as tax period on this tax calendar year.
1.1. The citizen of the Republic of Belarus S. P. Lyarsky on the arrival of July 13, 2010 to the Russian Federation signed the employment contract with Energoproyekttekhnologiya LLC which due to the lack at it the status of the tax resident of the Russian Federation since July, 2010 as the tax agent held from its income income tax at the rate of 30 percent.
In September, 2011 S. P. Lyarsky believing that in connection with origin at him in 2011 the status of the tax resident of the Russian Federation the retained tax is subject to recalculation at the rate of 13 percent, and excessively paid amount of tax shall it be returned, provided to tax authority the declaration on this tax for 2010, having attached to it the statement for return of the specified amount.
The tax authority notified S. P. Lyarsky on the inaccuracies allowed in the tax declaration (in the Section "Income from Sources in the Russian Federation" the rate of 30 percent, and in the Section "Status of the Taxpayer" - is specified that he is tax resident of the Russian Federation) and asked to provide the specified declaration. The applicant did not fulfill this requirement, and afterwards appealed to Tverskoy district court of the city of Moscow with the claim for duty of tax authority to return excessively paid income tax for 2010.
By the decision of Tverskoy district court of the city of Moscow of August 20, 2013 left without change appeal determination of judicial board on civil cases of the Moscow city court of February 28, 2014 satisfaction of its requirements it was refused on the ground that according to provisions of articles 207 and 216 of the Tax Code of the Russian Federation the final tax status of person is determined following the results of calendar year; recognition of person by the tax resident of the Russian Federation in 2010 requires its actual stay in the territory of Russia at least 183 days this calendar year; stay confirmation in the territory of the Russian Federation of citizens of the Republic of Belarus is performed in general procedure taking into account provisions of Item 1 of article 1 of the Protocol to the prisoner on April 21, 1995 by the Government of the Russian Federation and the Government of the Republic of Belarus to the Agreement on avoidance of double taxation and prevention of tax avoidance concerning taxes on the income and property; the term of stay of the applicant in Russia in 2010, according to the submitted documents, constituted 172 days, and therefore he cannot be recognized as the tax resident of the Russian Federation in the specified period and, respectively, the income tax for this period is not subject to recalculation and return.
Transfer of the writ of appeal on these court decrees for consideration in court session of cassation instance to the applicant it was also refused (determination of the judge of the Moscow city court of August 1, 2014). The vice-chairman of the Supreme Court of the Russian Federation, having studied the supervising claim of S. P. Lyarsky, did not see the bases for entering into Presidium of the Supreme Court of the Russian Federation of idea of review of court decrees on its case according to the procedure of supervision.
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