of April 26, 2016 No. P-1030/2016
About the right to appeal of decisions of tax authorities, actions (failure to act) of their officials
Constitutional court of the Republic of Belarus as a part of the chairman - the Chairman of the Constitutional Court Miklashevich P. P., the vice-chairman Sergeyeva O. G., Voronovich T. V. judges., Danilyuka of Page E., Izotko V. P., Karpovich N. A., Kozyreva L. G., Podgrusha V. V., Ryabtseva L.M., Tikovenko A. G., Chigrinova S. P.
considered in proceeding in open court case "About the right to appeal of decisions of tax authorities, actions (failure to act) of their officials".
Took part in judicial session:
the plenipotentiary of the President of the Republic of Belarus in the Constitutional Court is Mickiewicz V. V., the Presidentns deputy chief of staff of the Republic of Belarus;
the plenipotentiary of Council of the Republic of National assembly of the Republic of Belarus in the Constitutional Court is Moroz L. F., the chairman of the Permanent commission of Council of the Republic of National assembly of the Republic of Belarus by the legislation and the state construction;
the plenipotentiary of Council of Ministers of the Republic of Belarus in the Constitutional Court is Bodak A. N., deputy minister of justice of the Republic of Belarus;
The Supreme Court of the Republic of Belarus - Demidovich V. N., the vice-chairman of the Supreme Court of the Republic of Belarus;
The Ministries of Taxes and Tax Collection of the Republic of Belarus - Mukvich V. V., the deputy minister on taxes and fees of the Republic of Belarus;
The Prosecutor General's Office of the Republic of Belarus - Maltsev A. V., the head of department on supervision of execution of the legislation and legality of legal acts of the Prosecutor General's Office of the Republic of Belarus.
Proceeedings are initiated by the Constitutional Court on March 14, 2016 according to part one of article 116 of the Constitution of the Republic of Belarus (further - the Constitution), the paragraph the eighth parts three of article 22 of the Code of the Republic of Belarus about judicial system and the status of judges, parts one and third article 158 of the Law of the Republic of Belarus "About the constitutional legal proceedings" based on the address of the citizen A. M. Bartashevich which arrived in the Constitutional Court about availability of legal gap regarding absence at persons which are not according to the Tax code of the Republic of Belarus (further - the Tax Code) taxpayers, charges (duties) (other obliged persons), the right to appeal of decisions of tax authorities, actions (failure to act) of officials of these bodies which affect their rights.
In the address it is specified that A. M. Bartashevich during the period was from April 24 to September 30, 2013 the director of the private trade unitary enterprise (further - private enterprise) concerning which proceeedings about economic insolvency (bankruptcy) are initiated now, bankruptcy proceedings are opened. For this purpose the debt of private enterprise on tax payment and charges formed the basis.
According to the solution of inspectorate of the Ministry of Taxes and Tax Collection of the Republic of Belarus for Frunzensky district of Minsk No. 2 of July 8, 2015 (further - the decision of IMNS) and to the act of exit unscheduled inspection of June 8, 2015 violations of the tax legislation by private enterprise are allowed as a result of actions (failure to act) of A. M. Bartashevich who in defiance of subitem 1.1 of Item 1 of Article 22 of the Tax Code did not provide in full tax payment and charges, violated rules of conducting financial accounting and the reporting. About the decision of IMNS this citizen knew after receipt of determination of economic court of Minsk of November 10, 2015 of initiation of proceeedings about attraction it to subsidiary responsibility according to obligations of private enterprise and acquaintance with case papers. The citizen filed a lawsuit against the decision of IMNS the claim of Frunzensky district of Minsk. Proceeedings are stopped by determination of court of Frunzensky district of Minsk of January 5, 2016 due to the lack at the citizen in this case of the right to appeal to the court.
According to the citizen, lack of the right to appeal in court of the decision of tax authority which infringes the rights and legitimate interests of person (the owner of property of the organization debtor, the founder (participant), the former head of the organization debtor) brought to subsidiary responsibility according to obligations of the organization debtor violates constitutional right of this person on judicial protection.
Having heard the judge Kozyreva L. G., speeches of representatives, having analysed provisions of the Constitution, the Tax Code, the Civil code of the Republic of Belarus (further - group of companies), the Code of civil procedure of the Republic of Belarus, the Economic Procedure Code of the Republic of Belarus, the Law of the Republic of Belarus "About economic insolvency (bankruptcy)" (further - the Bankrupcy law) and other legal acts of the Republic of Belarus, having researched the submitted documents and other case papers, the Constitutional Court established.
1. The constitution provides that the person, its rights, freedoms and guarantees of their realization are the supreme value and the purpose of society and state (Article part one 2); providing the rights and freedoms of citizens of the Republic of Belarus - the prime target of the state; the state guarantees the rights and freedoms of citizens of Belarus enshrined in the Constitution, the laws and provided by the international obligations of the state (parts one and third Articles 21).
By article 22 of the Constitution it is determined that all are equal before the law and have the right without any discrimination to equal protection of the rights and legitimate interests.
The part one of article 60 of the Constitution guaranteeing everyone protection of its rights and freedoms by competent, independent and just trial in the terms determined by the law causes obligation of the state to provide everyone the free right to access to justice.
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