In May issue of journal “Vestnik economic justice Russian Federation” was published an article of the heads National Law Company “Mitra” CEO Yury Mirzoev and executive director Zaurbek Ahmetov, which was dedicated a question of influence judicial act about suspense act of decision of tax authority about bringing to responsibility or refusal bringing to responsibility for tax offences on the tax authority`s provisional measures according art.101 the Tax Code Russian Federation.
At the end of last year, the Federal Tax Service sent for using in the work of its territorial authorities "Review of judicial acts adopted by the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation on tax issues in the second half of 2015" (Letter of the Federal Tax Service of Russia No. SA-4 of December 24, 2015 -7 / 22683 @). In paragraph 27 of the review, reference is made to the definition of the Judicial Board for Economic Disputes of the Supreme Court of the Russian Federation No. 305-KG14-5758, dated April 14, 2015, in case No. A40-181764 / 13 (hereinafter - the Definition), which offers a wide distribution in the very near future set forth in positions in the activities of tax authorities. However, this judicial act is of interest not only because it has become a practical practitioner on an important, but rather local issue of the effect of interim measures, taken by the tax authority and the court. The definition of the judiciary, in our opinion, makes it necessary to rethink in general the effectiveness and effectiveness of such an interim measure in the legal proceedings on tax disputes as a suspension of the impugned decision to engage (on refusal to bring) to account for the commission of a tax offense in according with Part 3 of Art. 199 of the Arbitration Procedural Code of the Russian Federation.
The essence of the dispute, considered by the collegium of judges, was in following. As a result of the on-site inspection, the tax authority brought the taxpayer to justice and took interim measures in according with paragraphs. 2 p. 10 of Art. 101 of the Tax Code of the Russian Federation. As voluntary execution didn`t follow, the inspectorate, issued a decision on recovery and imposed interim measures in according with clause 8 of Art. 46 and p. 1 of Art. 76 of the Tax Code of the Russian Federation. Subsequently, the court took interim measures and suspended the decision to prosecute. The Bank considered that during the suspension of the decision by the court to bring the taxpayer to justice, all decisions to suspend transactions on the accounts of the taxpayer (taken in according with subparagraph 2 of clause 10 of Article 101 and clause 1 of Article 76 of the Tax Code of the Russian Federation) don`t apply and resumed Expenditures on the current account of the taxpayer. The bank was prosecuted under Article 134 of the Tax Code of the Russian Federation, which led to a dispute with the tax authority.
In the decision of the Supreme Court of the Russian Federation, it was stated that the arbitration court, in according with Part 3 of Art. 199 of the Russian Federation Arbitration Procedure Code, interim measures are aimed at prohibiting the inspector from carrying out actions to enforce a tax debt, that is added to the taxpayer's decision to prosecute for a tax offense, while the decision to suspend operations on accounts is a measure aimed at ensuring the future implementation of the decision on bringing to justice after its entry into force. The fact that the court has taken interim measures to prohibit the tax authority from taking actions to enforce tax debt, in the presence of a decision not adopted by the tax authority, 2 p. 10 of Art. 101 of the Tax Code of the Russian Federation, is not a basis for the renewal by the bank of expenditure transactions on the accounts of the taxpayer.
The conclusions give rise to a number of issues.
Let's start with the fact that earlier high courts in the adoption of judicial acts on tax disputes repeatedly pointed to the broad discretionary powers of the tax authorities, which the legislator envisaged in the Tax Code of the Russian Federation. Obviously, a significant amount of the rights of tax authorities is due ultimately to the need to promptly take certain measures, actions, aimed at the timely detection and receipt of taxes, penalties and fines found in the budget as a result of tax inspections and other tax control measures.
On the other hand, a taxpayer whose rights are violated, have the right to rely on judicial protection of their rights, which is guaranteed by Article 46 of the Constitution of the Russian Federation. At the same time, a judicial act must provide effective protection and restoration of violated rights. If it is a matter of interim measures, the form of protection of rights is to prevent the occurrence of adverse consequences in the future for a person who applied to court on the basis of Part 3 of Art. 199 of the Arbitration Procedural Code of the Russian Federation.
However, within the meaning of the definition in question, it appears that an extrajudicial act of the administrative authority on interim measures issued in accordance with Art. 101 of the Tax Code of the Russian Federation, in effect, in advance, disavows the procedural effectiveness of interim measures that could be taken by the court at the request of the taxpayer. We believe that, at the time of the taxpayer's application to the court, the court has the prerogative of deciding whether to take protective measures, whether the taxpayer should "feel" immediately adverse consequences from the adopted and entered into force of the decision to call (on refusal to bring) to accountability for a tax offense or such consequences should come later. Since interim measures are not discriminatory, the interests of the budget will not be violated. In addition, the balance of interests of the parties at the stage of judicial review should and can be provided not in extrajudicial procedure (interim measures under art. 101 TC), but by means of arbitration under the control of the court. Thus, the tax authority, exercising its procedural rights, has the opportunity not only to appeal to the higher authority the court's decision on taking interim measures, but also to apply directly to the court that issued the decision at any time, with a request for its cancellation or ask for counter security (since for a period of lengthy litigation, public interests may also require protection).
It seems that the definition being discussed contradicts the position of the Constitutional Court of the Russian Federation, since it presupposes in effect to overcome the judicial act on taking provisional measures in the form of suspension of the decision of the tax authority to bring to justice. Otherwise, what is the practical sense in a judicial act to suspend the decision of the tax authority to prosecute, if the taxpayer still can`t make payments from his current account to the cancellation of the decision of the tax authority taken as a result of the audit? In addition, the position of the taxpayer, in relation to which the tax authority has (managed to make) a decision to impose interim measures before the court makes a decision on security, will be worse than the position of the taxpayer, against which the tax authority did not manage to take such measures.
With this interpretation of the law, clause 77 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of July 30, 2013 No. 57 "On certain issues arising when arbitration courts apply part of the first Tax Code of the Russian Federation", which stipulates that the tax authority during the consideration of the case in the court is not entitled to apply interim measures provided for in Cl. 10, Art. 101 of the Tax Code of the Russian Federation.
There is a about the period of validity of the interim measures, provided for in Art. 76 and cl. 10, Art. 101 of the Tax Code of the Russian Federation, as well as the accompanying question: should the receipt of arrears and a fine be provided to the budget simultaneously in two different ways?
Specified in paragraph 10 of Art. 101 of the Tax Code, interim measures, as noted by the judges of the Supreme Court of the Russian Federation, are aimed at promptly defending the interests of the budget in order to prevent situations where due to the expiration of a certain time it may be difficult or impossible to comply with the decision of the tax authority due to alienation (withdrawal) of the taxpayer's assets. In contrast, suspension of operations on bank accounts in according with Article 76 of the Tax Code of the Russian Federation can be applied only after the entry into force of the decision to prosecute or the decision to refuse to bring to justice, the issuance on its basis of the demand, decisions on the collection of taxes, penalties, fines (Article 46, 70 of the Tax Code of the Russian Federation) in order to ensure the execution of the latter. But then the system interpretation of art. 46, 70, 76, 101 of the Tax Code of the Russian Federation should imply that interim measures taken before the entry into force of a decision to prosecute or a decision to refuse to hold accountable become null and void with the beginning of the application by the tax authority of ways to enforce the obligation to pay arrears and fine.
Also, it should be noted that the application of interim measures provided for in Art. 76, 101 of the Tax Code of the Russian Federation, has one overall objective - to ensure the implementation of the decision of the tax authority taken as a result of the audit. For this reason, the suspension by the court of the action of such a decision invalidates all decisions on suspension of transactions in the accounts made to enforce this decision.
Finally, the decision, taken by the tax authority on interim measures under Article 101 of the Tax Code of the Russian Federation, is not a completely separate non-normative act, but part of the enforcement mechanism of the decision, taken on the basis of the results of the tax audit. The resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of July 30, 2013 № 57 (paragraphs 49, 63) suggested that some non-normative acts of tax authorities are auxiliary in relation to the main and completely divide their fate, so the court decision on the main legal act is extended to auxiliary ones. In our opinion, this approach should also have allowed the case under consideration. Otherwise, we will have to admit that in order to invalidate the legal consequences of each of the auxiliary non-normative acts, a separate claim and separate judgment will be required, which clearly contradicts the principle of procedural economy. Consequently, in our opinion, in the present case, the court erroneously shares the legal consequences of the court's suspension of the action taken on the basis of the audit of the decision of the tax authority for decisions to suspend operations on accounts accepted in the manner of art. 76 and art. 101 of the Tax Code of the Russian Federation.
There is every reason to believe that the discussed definition will have extremely negative consequences for taxpayers. The decision by the tax authority to apply preliminary provisional measures in accordance with cl. 101 of the Tax Code of the Russian Federation for many economic entities will mean the cessation of normal economic activity for a very long period, even if there are judicial interim measures. It is unlikely that this state of affairs meets the challenges of modern procedural legislation.
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