On behalf of the Russian Federation
of July 1, 2015 No. 19-P
On the case of check of constitutionality of provision of the subitem 4 of Item 1 of article 162 of the Tax Code of the Russian Federation in connection with the claim of "Sawney Mobayl Kommyunikeyshnz Rus" limited liability company
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,
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, 47.1, 74, 86, 96, 97 and 99 Federal constitutional Laws "About the Constitutional Court of the Russian Federation",
considered in meeting without carrying out hearing case on check of constitutionality of provision of the subitem 4 of Item 1 of article 162 of the Tax Code of the Russian Federation.
Reason for consideration of the case was the claim of Sawney Mobayl Kommyunikeyshnz Rus LLC. The basis to consideration of the case was the found uncertainty in question of whether there corresponds to the Constitution of the Russian Federation the legislative provision disputed by the applicant.
Having heard the message of the judge-speaker M. I. Kleandrov, having researched the submitted documents and other materials, the Constitutional Court of the Russian Federation
1. According to provision of the subitem 4 of Item 1 of article 162 of the Tax Code of the Russian Federation the tax base on the value added tax increases by the amounts of the received insurance payments for insurance contracts of risk of non-execution of contractual commitments by the insurer creditor's partner if the insured contractual commitments provide delivery of goods by the insurer (works, services) which realization is recognized the taxation object.
1.1. Disputing constitutionality of the called legislative provision of Sawney Mobayl Kommyunikeyshnz Rus LLC, performing business activity in the form of wholesale trade, signed contracts of delivery of goods with payment deferral and at the same time insured risk of non-execution of contractual commitments by buyers. In 2008 society performed shipment of goods to buyers and estimated and paid to the budget the value added tax from the specified transactions in full. As in the terms established by agreements the goods were not paid by buyers, the insurance company in which the risk of non-execution of contractual commitments was insured by buyers, in 2010 provided to Sawney Mobayl Kommyunikeyshnz Rus LLC insurance payment.
Tax authority, having determined during exit tax audit that Sawney Mobayl Kommyunikeyshnz Rus LLC contrary to the requirement of the subitem 4 of Item 1 of article 162 of the Tax Code of the Russian Federation did not increase tax base on the value added tax for 2010 by the amount of the insurance payment received by it, passed the decision on involvement of society to tax responsibility, additionally accrued to it the corresponding tax amounts, and also added penalty fee and penalty.
The decision of Arbitration Court of the city of Moscow of December 30, 2013 left without change by resolutions of the Ninth Arbitration Appeal Court of March 31, 2014 and Federal Arbitration Court of the Moscow district of July 22, 2014, to the applicant it was refused recognition of the specified decision of tax authority invalid. Courts recognized that increase in tax base on the value added tax in connection with realization by the taxpayer of goods on the amount of the insurance indemnity received by it from insurance company shall be performed by it owing to direct specifying of the subitem 4 of Item 1 of article 162 of the Tax Code of the Russian Federation, and has no legal value the fact that the taxpayer already estimated (paid) in full the value added tax from transactions on sales of goods after its shipment to the buyer; that sales of goods and insurance indemnity have the different legal nature courts came to conclusion that the request for payment of the value added tax shown to Sawney Mobayl Kommyunikeyshnz Rus LLC in each of these cases separately corresponds to the law. By determination of the judge of the Supreme Court of the Russian Federation of November 11, 2014 to the applicant it was also refused transfer of the writ of appeal for consideration by Judicial board on economic disputes of the Supreme Court of the Russian Federation.
Violation of the rights guaranteed by Articles 8, 19 (parts 1 and 2), 34 (part 1), 35 (parts 1 - 3), 55 (part 3) and 57 Constitutions of the Russian Federation, regulations of the subitem 4 of Item 1 of article 162 of the Tax Code of the Russian Federation on increase in tax base on the value added tax on the amounts of the insurance payments received according to insurance contracts of risk of non-execution of contractual commitments in the cases of Sawney Mobayl Kommyunikeyshnz Rus LLC specified in this legislative provision see that inclusion on its basis in tax base of the amounts of insurance payments represents the repeated taxation of transactions on realization of goods by it - besides that the value added tax as indirect tax, shall be shifted owing to its economic nature onto the final consumer of these goods. Thereby, according to the applicant, the principle of equality of taxpayers is broken: those from them who uses the risks insurance mechanism bear the increased tax burden in comparison with those who, being supplier of goods (works, services), for ensuring the valuable interests resort to other legal mechanisms, i.e. differentiation of tax effects in dependence only on civil method of registration of the corresponding relations takes place.
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