30.10.2007, 08:10
Tax Club Session Took Place in Moscow
OREANDA-NEWS. Regular session of the Tax club arranged by "Vash nalogoviy advokat" ("FBK-Press"), "Nalogoved" (Pepeliaev, Goltsblat and partners) and Financial Academy of the Government of RF took place in Moscow. Legal experts devoted this session to the "Legal status of the Russian Ministry of finance’s explanations related to taxation", reported the press-centre of FBK.
The Tax Code specifies that the Ministry of finance of RF is entitled to provide written explanations related to implementation on the Russian tax legislation. Direct instruction to tax authorities to act according to such explanations has been acting since the 1-st of January, 2007. Moreover, tax deficiency caused by implementation of the Ministry of finance’s explanation addressed to the taxpayer or to the unspecified persons should not be subject to the penalty fee (p. p 3 p. 1 Article 111 of the Tax Code), the one caused by implementation of the Ministry of finance’s explanation given after 31-th of December, 2006 (p. 8 Article 75 of the Tax Code) should not be subject to fine.
However there is the letter of the Ministry of finance dated 7-th of August, 2007№ 03-02-07/2-138 disposed on the web-site of the Ministry. As it is stipulated by this letter explanations of the Ministry of finance shall officially be published only on the web-sites of the Ministry and Federal Tax Service of RF. Letters of the Ministry of finance published in legal data base or in different publications shall be "informative and expository" and shall be considered as the ones "among other publications of the experts in this field" by the tax authorities and by the taxpayers because they don’t have enough information concerning the requests which caused the explanation. This doesn’t allow clearing up whether the situation explained in the letter is analogous to the question which should be settled by the taxpayer and by the tax authority.
Deputy Director of the tax, custom and tariff policy Department of the Ministry of finance Sergey Razgulin declared on the Tax club session that "explanations are not regulatory documents, they are expression of the Ministry of finance’s opinion concerning implementation of the definite rule", a sort of guideline of implementation of the certain Tax Code rules.
In the same time Razgulin promised that most of explanations would be available on the Ministry’s web-site in the nearest future. "Ministry of finance is tending to make explanations public and available for unlimited range of the taxpayers. We aim to make even taxpayer’s oriented explanation available for other participants of the tax relations", - Razgulin pointed out. According to his position reducing of number of explanations is one of the performance indicators of the tax, custom and tariff policy Department of the Ministry of finance’s activity. In the meantime by Razgulin’s estimation there were approximately 5 000 of such explanations and this year they are not supposed to abate.
While giving comments on situations when explanations of the Ministry of finance contradict to the court practice Razgulin pointed out that the solution was "coordination of positions concerning disputable matters". Under his words the Ministry of finance now is changing strategy, it is intending to define its position and give the position of the Supreme Arbitration Court if they don’t coordinate with each other.
Senior manager of "FBK-Legal" Alexei Yakovlev pointed out in his report that "status of the Ministry of finance’s letters should not be defined formally. It is important in each specific case to examine and evaluate of the document content. If giving explanations the Ministry of finance actually creates a new legal rule then such explanation can be contested as a legal regulatory act in the court. If such explanation doesn’t contradict to the Tax Code, if its content is in accordance with the status declared such document can not be contested as a legal regulatory act. While contestation made under other grounds (for example, as a document or action violating the taxpayer’s rights) seems to be problematical according to the opinion of Alexei Yakovlev.
Judge of the Constitutional Court of RF Gadis Gadgiev told that the Constitutional Court usually based in its activity on the content of the document but not on the formality. If a document comes across the formal attributes of the legal regulatory act though it has legal rules actually regulating a relationship such document can be contested as a legal regulatory act.
Senior lawyer of "Pepeliaev, Goltsblat & Partners" Company, Konstantin Sasov, reminded that advisers who had come into arrangement with entrepreneurs for the purpose of tax evasion were actually related to accessories of the criminals who shall bear responsibility up to the criminal one. Taking into consideration that the Constitution of RF equally defends both state and private property the lawyer raised a question: "What kind of responsibility does law stipulate for the officers who provide wrong explanations to the entrepreneurs? ".
Though some participants of the Tax club maintained their position according to which explanations of the Ministry of finance can’t be considered as the legal regulatory acts most of participants of the discussion insisted that the special procedure of the Ministry of finance’s explanation contestation should be fixed legally.
The Tax Code specifies that the Ministry of finance of RF is entitled to provide written explanations related to implementation on the Russian tax legislation. Direct instruction to tax authorities to act according to such explanations has been acting since the 1-st of January, 2007. Moreover, tax deficiency caused by implementation of the Ministry of finance’s explanation addressed to the taxpayer or to the unspecified persons should not be subject to the penalty fee (p. p 3 p. 1 Article 111 of the Tax Code), the one caused by implementation of the Ministry of finance’s explanation given after 31-th of December, 2006 (p. 8 Article 75 of the Tax Code) should not be subject to fine.
However there is the letter of the Ministry of finance dated 7-th of August, 2007№ 03-02-07/2-138 disposed on the web-site of the Ministry. As it is stipulated by this letter explanations of the Ministry of finance shall officially be published only on the web-sites of the Ministry and Federal Tax Service of RF. Letters of the Ministry of finance published in legal data base or in different publications shall be "informative and expository" and shall be considered as the ones "among other publications of the experts in this field" by the tax authorities and by the taxpayers because they don’t have enough information concerning the requests which caused the explanation. This doesn’t allow clearing up whether the situation explained in the letter is analogous to the question which should be settled by the taxpayer and by the tax authority.
Deputy Director of the tax, custom and tariff policy Department of the Ministry of finance Sergey Razgulin declared on the Tax club session that "explanations are not regulatory documents, they are expression of the Ministry of finance’s opinion concerning implementation of the definite rule", a sort of guideline of implementation of the certain Tax Code rules.
In the same time Razgulin promised that most of explanations would be available on the Ministry’s web-site in the nearest future. "Ministry of finance is tending to make explanations public and available for unlimited range of the taxpayers. We aim to make even taxpayer’s oriented explanation available for other participants of the tax relations", - Razgulin pointed out. According to his position reducing of number of explanations is one of the performance indicators of the tax, custom and tariff policy Department of the Ministry of finance’s activity. In the meantime by Razgulin’s estimation there were approximately 5 000 of such explanations and this year they are not supposed to abate.
While giving comments on situations when explanations of the Ministry of finance contradict to the court practice Razgulin pointed out that the solution was "coordination of positions concerning disputable matters". Under his words the Ministry of finance now is changing strategy, it is intending to define its position and give the position of the Supreme Arbitration Court if they don’t coordinate with each other.
Senior manager of "FBK-Legal" Alexei Yakovlev pointed out in his report that "status of the Ministry of finance’s letters should not be defined formally. It is important in each specific case to examine and evaluate of the document content. If giving explanations the Ministry of finance actually creates a new legal rule then such explanation can be contested as a legal regulatory act in the court. If such explanation doesn’t contradict to the Tax Code, if its content is in accordance with the status declared such document can not be contested as a legal regulatory act. While contestation made under other grounds (for example, as a document or action violating the taxpayer’s rights) seems to be problematical according to the opinion of Alexei Yakovlev.
Judge of the Constitutional Court of RF Gadis Gadgiev told that the Constitutional Court usually based in its activity on the content of the document but not on the formality. If a document comes across the formal attributes of the legal regulatory act though it has legal rules actually regulating a relationship such document can be contested as a legal regulatory act.
Senior lawyer of "Pepeliaev, Goltsblat & Partners" Company, Konstantin Sasov, reminded that advisers who had come into arrangement with entrepreneurs for the purpose of tax evasion were actually related to accessories of the criminals who shall bear responsibility up to the criminal one. Taking into consideration that the Constitution of RF equally defends both state and private property the lawyer raised a question: "What kind of responsibility does law stipulate for the officers who provide wrong explanations to the entrepreneurs? ".
Though some participants of the Tax club maintained their position according to which explanations of the Ministry of finance can’t be considered as the legal regulatory acts most of participants of the discussion insisted that the special procedure of the Ministry of finance’s explanation contestation should be fixed legally.
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