On behalf of the Russian Federation

RESOLUTION OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION

of October 11, 2022 No. 42-P

On the case of check of constitutionality of the subitem 2 of Item 1 of Article 6, Item 2.2 of Article 22, Item 1 of article 28 of the Federal law "About Mandatory Pension Insurance in the Russian Federation", the subitem 2 of Item 1 of article 419 of the Tax Code of the Russian Federation, part four of article 7 of the Law of the Russian Federation "About provision of pensions of persons passing military service, service in law-enforcement bodies, the Public fire service, drug trafficking monitoring bodies and psychotropic substances, organizations and bodies of criminal executive system, troops of national guard of the Russian Federation, bodies of forced execution of the Russian Federation, and their families", parts 2 and 3 of Article 8 and part 18 of article 15 of the Federal law "About Insurance Pensions" in connection with the claim of the citizen K. V. Vorobyov

Constitutional court of the Russian Federation as a part of the Chairman V. D. Zorkin, judges A. Yu. Bushev, G. A. Gadzhiyev, L. M. Zharkova, S. M. Kazantsev, S. D. Knyazev, A. N. Kokotov, L. O. Krasavchikova, S. P. Mavrin, N. V. Melnikov,

being guided by Article 125 (the part Item "and" 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 the subitem 2 of Item 1 of Article 6, of Item 2.2 of Article 22, of Item 1 of article 28 of the Federal law "About Mandatory Pension Insurance in the Russian Federation", the subitem 2 of Item 1 of article 419 of the Tax Code of the Russian Federation, part four of article 7 of the Law of the Russian Federation "About provision of pensions of persons passing military service, service in law-enforcement bodies, the Public fire service, drug trafficking monitoring bodies and psychotropic substances, organizations and bodies of criminal executive system, troops of national guard of the Russian Federation, bodies of forced execution of the Russian Federation, and their families", parts 2 and 3 of Article 8 and part 18 of article 15 of the Federal law "About Insurance Pensions".

Reason for consideration of the case was the claim of the citizen K. V. Vorobyov. The basis to consideration of the case was the found uncertainty in question of whether there correspond Constitutions of the Russian Federation the legislative provisions disputed by the applicant.

Having heard the message of the judge-speaker S. M. Kazantsev, having researched the submitted documents and other materials, the Constitutional Court of the Russian Federation

established:

1. According to the Federal Law of December 15, 2001 No. 167-FZ "About mandatory pension insurance in the Russian Federation" insurers on mandatory pension insurance are individual entrepreneurs, lawyers (except for the lawyers who are receivers of long-service pension or disability pension according to the Law of the Russian Federation of February 12, 1993 No. 4468-I "About provision of pensions of persons passing military service, service in law-enforcement bodies, the Public fire service, drug trafficking monitoring bodies and psychotropic substances, organizations and bodies of criminal executive system, troops of national guard of the Russian Federation, bodies of forced execution of the Russian Federation both their families" and not entered voluntarily legal relationship on mandatory pension insurance or stopped such legal relationship according to article 29 of the Federal law "About Mandatory Pension Insurance in the Russian Federation"), the arbitration managers, notaries who are engaged in private practice (the subitem 2 of Item 1 of Article 6);

in case of calculation of the insurance premium in the fixed size paid by the insurers specified in the subitem 2 of Item 1 of article 6 of the Federal law "About Mandatory Pension Insurance in the Russian Federation" rates of insurance premiums in the amount of percent 22,0 which are determined in proportion to rates of insurance premiums, stipulated in Item 2.1 articles 22 of this Federal Law (Item 2.2 of Article 22) are applied;

the insurers specified in the subitem 2 of Item 1 of article 6 of this Federal Law pay insurance premiums in the fixed size according to the procedure established by the legislation on taxes and fees (Item 1 of Article 28).

According to part four of article 7 of the Law of the Russian Federation "About provision of pensions of persons passing military service, service in law-enforcement bodies, the Public fire service, drug trafficking monitoring bodies and psychotropic substances, organizations and bodies of criminal executive system, troops of national guard of the Russian Federation, bodies of forced execution of the Russian Federation, and their families" (further - the Law of the Russian Federation of February 12, 1993 No. 4468-I) persons specified in article 1 of this Law in the presence of conditions for purpose of insurance pension on old age have the right to simultaneous receipt of long-service pension or the disability pension provided by this Law and insurance pension on the old age (except for fixed payment to insurance pension on old age) established according to the Federal Law of December 28, 2013 No. 400-FZ "About insurance pensions".

The subitem 2 of Item 1 of article 419 of the Tax Code of the Russian Federation recognizes as payers of the insurance premiums which are insurers according to the Federal Laws on specific types of compulsory social insurance of individual entrepreneurs, lawyers, mediators, the notaries who are engaged in private practice, the arbitration managers, appraisers, patent agents and other persons who are engaged in accordance with the established procedure in private practice.

The Federal Law "About Insurance Pensions" provides purpose of insurance pension on old age in the presence of at least 15 years of insurance years of service and size of individual pension coefficient in the amount of at least 30, in parts 2 and 3 of Article 8 and in part 18 of Article 15 also determines that the size of individual pension coefficient is determined for each calendar year since January 1, 2015 taking into account annual assignments of insurance premiums in the Pension Fund of the Russian Federation according to the legislation on taxes and fees by formula:

 

where IPKI - the individual pension coefficient determined for each calendar year since January 1, 2015 taking into account annual assignments of insurance premiums in the Pension Fund of the Russian Federation according to the legislation on taxes and fees and on compulsory social insurance;

Ssvgod, i - the amount of insurance premiums for insurance pension on old age in the amount of, calculated proceeding from individual part of rate of the insurance premiums for financing of insurance pension on old age assessed and paid (for persons specified in parts 3 and 7 of article 13 of this Federal Law, - paid) for the corresponding calendar year for insured person according to the legislation on taxes and fees and on compulsory social insurance;

Nsvgod, i - the normative size of insurance premiums for insurance pension on old age calculated as the work of the maximum rate of assignments for insurance pension on old age in the amount of, equivalent to individual part of rate of insurance premiums for financing of insurance pension on old age, and the extreme size of base for charge of insurance premiums in the Pension Fund of the Russian Federation for the corresponding calendar year.

The citizen K. V. Vorobyov disputes constitutionality of the above-stated provisions in interrelation with the paragraph third Item 1 of article 7 of the Federal law "About Mandatory Pension Insurance in the Russian Federation" according to which insured persons are work (individual entrepreneurs, lawyers, arbitration managers, notaries who are engaged in private practice and the other persons who are engaged in private practice and not being individual entrepreneurs) who are independently providing themselves, except for persons applying special tax regime "Tax on the professional income", and also lawyers being receivers of long-service pension or disability pension according to the Law of the Russian Federation of February 12, 1993 No. 4468-I and not entered voluntarily legal relationship on mandatory pension insurance or stopped such legal relationship according to article 29 of the Federal law "About Mandatory Pension Insurance in the Russian Federation".

1.1. K. V. Vorobyov, 1970 year of birth receiving since 2016 long-service pension according to the Law of the Russian Federation of February 12, 1993 No. 4468-I, 25 of January, 2018 was registered as the individual entrepreneur and with respect thereto became the payer of insurance premiums for mandatory pension insurance. On January 27, 2021 K. V. Vorobyov, based on legal line item of the Constitutional Court of the Russian Federation expressed in the Resolution of January 28, 2020 to No. 5-P filed petition in Inspectorate of the Federal Tax Service for Leninsky district of the city of Chelyabinsk for its removal from accounting of payers of insurance premiums proceeding from the fact that payment of these fees in the minimum size, in view of that insignificant income which he gains and plans to receive in the future, does not guarantee it the right to the corresponding insurance coverage as by the time of achievement of generally established retirement age by it (65 years) its individual pension coefficient will not be created up to the size at least 30, of insurance pension, necessary for appointment, on old age. The letter of February 15, 2021 the tax authority refused satisfaction of these requirements, having referred to the fact that the circumstances specified by K. V. Vorobyov are not the basis for release of the individual entrepreneur from obligation to pay insurance premiums. Claim K.V. Vorobyova on this refusal by the decision of Office of the Federal Tax Service in Chelyabinsk region of April 27, 2021 is left without satisfaction.

By the decision of Leninsky district court of Chelyabinsk region of June 8, 2021 to K. V. Vorobyov it was refused satisfaction of the administrative claim for recognition illegal refusal in removal from accounting as the payer of insurance premiums for mandatory pension insurance and about return of the fees paid from 2018 to 2020. Courts of appeal and cassation instances left this decision without changes.

As specified court of cassation instance, by subordinate courts it is considered that the Resolution of the Constitutional Court of the Russian Federation of January 28, 2020 to No. 5-P confirms obligation of lawyers from among military pensioners to pay insurance premiums for mandatory pension insurance, and No. 502-FZ "About introduction of amendments to the Federal law "About Mandatory Pension Insurance in the Russian Federation" only lawyers are eliminated by the Federal Law adopted in pursuance of this Resolution of December 30, 2020 insurers and insured persons; at the same time K. V. Vorobyov the lawyer is not. By determination of the judge of the Supreme Court of the Russian Federation it is refused transfer of its writ of appeal for consideration in judicial session of Judicial board on administrative cases of the Supreme Court of the Russian Federation.

The applicant believes that the disputed regulations in their interrelation with the paragraph third Item 1 of article 7 of the Federal law "About Mandatory Pension Insurance in the Russian Federation" carrying individual entrepreneurs to insured persons to whom mandatory pension insurance extends violate the rights of citizens, the principles of equality and legal definiteness and by that contradict Articles 7 (part 1), 8 (part 2), 19 (parts 1 and 2), 35 (part 1), 39 (parts 1 and 2) and 55 (parts 2 and 3) Constitutions of the Russian Federation in that measure in what assign to individual entrepreneurs from among persons receiving long-service pension according to the Law of the Russian Federation of February 12, 1993 No. 4468-I, obligation on payment of insurance premiums for mandatory pension insurance without fixing of proper guarantees of receipt of insurance pension by them on old age on reaching retirement age.

1.2. The question of compliance of the Constitution of the Russian Federation actually of the same normative provisions - parts four of article 7 of the Law of the Russian Federation of February 12, 1993 No. 4468-I, the subitem 2 of Item 1 of Article 6, of Item 2.2 of Article 22 and Item 1 of article 28 of the Federal law "About Mandatory Pension Insurance in the Russian Federation", the subitem 2 of Item 1 of article 419 of the Tax Code of the Russian Federation, and also parts 2 and 3 of Article 8, of part 18 of article 15 of the Federal law "About Insurance Pensions" - was already considered by the Constitutional Court of the Russian Federation in connection with payment of insurance premiums for mandatory pension insurance for lack of obtaining guarantees in case of loss occurrence of insurance pension on old age of one of categories of persons which are independently providing themselves with work and at the same time receiving long-service pension according to the Law of the Russian Federation of February 12, 1993 No. 4468-I, namely lawyers, in relation to which rights and obligations in the field of mandatory pension insurance in substantive provisions of the Resolution of January 28, 2020 No. 5-P the Constitutional Court of the Russian Federation gave assessment to constitutionality of the specified provisions.

In pursuance of this Resolution the Federal Law "Was adopted about introduction of amendments to the Federal law "About Mandatory Pension Insurance in the Russian Federation" according to which of number of the insurers and insured faces obliged to pay insurance premiums for mandatory pension insurance the lawyers receiving long-service pensions or disability pensions are excluded (further - military pensioners). Thus, owing to changes of the legislation since January 10, 2021 specified persons were exempted from obligation on payment of insurance premiums for mandatory pension insurance with provision of the right by it voluntarily to enter legal relationship on mandatory pension insurance.

Except lawyers for all other persons which are independently providing themselves with work and receiving long-service pensions or disability pensions under the Law of the Russian Federation of February 12, 1993 No. 4468-I the former legal regime of their participation in system of mandatory pension insurance remained that testifies to uncertainty in question of compliance of the Constitution of the Russian Federation of the disputed regulations in relation to obligation of specified persons on payment of insurance premiums for mandatory pension insurance.

1.3. Thus, taking into account instructions of Articles 36, of 74, 96 and 97 Federal constitutional Laws "About the Constitutional Court of the Russian Federation" subject of consideration of the Constitutional Court of the Russian Federation of this case are provisions of the subitem 2 of Item 1 of Article 6, of Item 2.2 of Article 22 and Item 1 of article 28 of the Federal law "About Mandatory Pension Insurance in the Russian Federation", the subitem 2 of Item 1 of article 419 of the Tax Code of the Russian Federation, part four of article 7 of the Law of the Russian Federation of February 12, 1993 No. 4468-I, and also parts 2 and 3 of Article 8, of part 18 of article 15 of the Federal law "About Insurance Pensions" in that measure in what based on these provisions in their interrelation with the paragraph third Item 1 of article 7 of the Federal law "About Mandatory Pension Insurance in the Russian Federation" resolves issue of assignment on persons who are independently providing themselves with work from among pensioners, receiving long-service pension or disability pension according to the Law of the Russian Federation of February 12, 1993 No. 4468-I, obligations on payment of insurance premiums for mandatory pension insurance.

2. In the Resolution of January 28, 2020 No. 5-P the Constitutional Court of the Russian Federation noted that the Constitution of the Russian Federation as constitutional democratic state with socially oriented market economy, providing need of creation of the conditions providing worthy life and free development of the person (Article 1, part 1; Article 7, part 1), guarantees to citizens not only freedom of work, but also right to social insurance on age, in case of disease, disability, loss of the supporter, for education of children and in other cases established by the law (Article 7, part 2; Article 39, parts 1 and 2). The constitutional right on social security covers also the right to pensions in the cases and the sizes determined by the law which implementation is guaranteed by creation of the pension system including mandatory pension insurance and the state provision of pensions as the major forms of business.

As appears from Articles 7, 39, 71 (Item "in"), 72 (the part Item 1) and 76 (parts 1 and 2) of the Constitution of the Russian Federation, the choice of mechanisms of realization of constitutional right on receipt of pension is within the competence of the legislator who has rather broad freedom of discretion in case of determination of types of pensions, legal basis and procedure for their provision, rules of appointment and recalculation, and also forming of financial basis of their payment. At the same time the performed legal regulation shall be based on the constitutional principles, consider the social value of labor and other socially useful activity, special value of pension for maintenance of material security and satisfaction of the basic vital needs of pensioners.

Realization of constitutional right it is free to dispose of the capabilities to work, to choose kind of activity and profession it is objectively connected with possibility of change of type of employment and consequently, and using the different forms of business of provision of pensions considering including feature of legal status of these or those persons. It predetermines need of establishment in the field of provision of pensions of such regulation which would guarantee possibility of acquisition in the course of labor, office, business and other similar activity of the pension rights, and also their implementation within the corresponding forms of business of provision of pensions.

3. The question of constitutionality of the legislative provisions fixing obligation on payment of insurance premiums for mandatory pension insurance by persons receiving long-service pension according to the Law of the Russian Federation of February 12, 1993 No. 4468-I who after leaving of service began to be engaged in business activity or acquired the status of the lawyer was repeatedly put before the Constitutional Court of the Russian Federation (The resolution of January 28, 2020 No. 5-P; determinations of April 12, 2005 No. 165-O, of September 29, 2011 No. 1179-O-O, of January 25, 2012 No. 226-O-O, of March 22, 2012 No. 622-O-O, of October 18, 2012 No. 1948-O, of May 29, 2014 No. 1116-O, of June 24, 2014 No. 1471-O, of November 20, 2014 No. 2712-O, of February 17, 2015 No. 329-O, of March 28, 2017 No. 519-O, etc.).

The constitutional court of the Russian Federation came to conclusion that assignment on specified persons of obligation on payment pro se of insurance premiums - taking into account the purpose of mandatory pension insurance, the social and legal nature and purpose of insurance premiums - in itself cannot be regarded as not consistent with requirements of the Constitution of the Russian Federation. On the contrary, it is directed to realization of the principle of generality of the provision of pensions following from Article 39 (part 1) of the Constitution of the Russian Federation especially as persons which are independently providing themselves with work are subject to the same social risk in connection with loss occurrence, as well as persons working according to the employment contract, and payment of insurance premiums by them provides forming of their pension rights, acquisition of right to retirement (insurance) pension.

In Determination of May 24, 2005 No. 223-O the Constitutional Court of the Russian Federation emphasized that participation of persons from among the military pensioners who are independently providing themselves with work in mandatory pension insurance and assignment of obligation on them to pay insurance premiums to the Pension Fund of the Russian Federation shall guarantee them sales opportunity of the pension rights acquired within system of mandatory pension insurance, on equal terms with other insured persons. Assignment on such citizens of obligation on payment of insurance premiums in the Pension Fund of the Russian Federation is constitutionally admissible only in the presence of the proper legal mechanism guaranteeing to them along with the pension payment relying on the state provision of pensions, provision - taking into account paid amounts of insurance premiums - also insurance coverage in the form of work old-age pension.

The corresponding legal mechanism was established by the Federal Law of July 22, 2008 No. 156-FZ "About modification of separate legal acts of the Russian Federation concerning provision of pensions" which to persons passing military service under the contract, and persons equated to them in the field of provision of pensions in the presence of the conditions for appointment of old-age pension fixed by article 7 of the Federal Law of December 17, 2001 No. 173-FZ "About work pensions in the Russian Federation" granted the right to simultaneous receipt of long-service pension or the disability pension provided by the Law of the Russian Federation of February 12, 1993 No. 4468-I, and work old-age pension (except for its basic unit).

Thus, that who acquired in system of mandatory pension insurance the status of insured persons after purpose it of long-service pension or disability pension according to the Law of the Russian Federation of February 12, 1993 No. 4468-I was given sales opportunity of the pension rights which forming was provided with payment of insurance premiums for mandatory pension insurance. Concerning persons which are independently providing themselves with work from among military pensioners necessary correlation of their status as insurers - payers of insurance premiums and insured persons - receivers of work pensions in the amount of, correlated with the insurance premiums paid by them to the Pension Fund of the Russian Federation and reflected in their individual personal accounts was performed.

3.1. In the Resolution of January 28, 2020 No. 5-P the Constitutional Court of the Russian Federation gave assessment to constitutionality actually of the same precepts of law which are disputed by the applicant in this case, in relation to assignment on lawyers from among military pensioners of obligation on payment of insurance premiums for mandatory pension insurance, including by solidary part of rate, without establishment of guarantees of obtaining in case of loss occurrence of insurance pension on old age taking into account fixed payment to it.

Part four of article 7 of the Law of the Russian Federation of February 12, 1993 No. 4468-I, the subitem 2 of Item 1 of Article 6, Item 2.2 of Article 22 and Item 1 of article 28 of the Federal law "About Mandatory Pension Insurance in the Russian Federation", the subitem 2 of Item 1 of article 419 of the Tax Code of the Russian Federation, parts 2 and 3 of Article 8, part 18 of article 15 of the Federal law "About Insurance Pensions" in their interrelation with the paragraph of Item 1 of article 7 of the Federal law "About Mandatory Pension Insurance in the Russian Federation" were recognized as third not contradicting the Constitution of the Russian Federation in that measure in what they, carrying lawyers from among military pensioners to insurers on mandatory pension insurance, assign to them obligation on payment of the corresponding insurance premiums for the purpose of ensuring their right to obligatory insurance coverage for mandatory pension insurance.

Along with it these legislative provisions were acknowledged not corresponding to the Constitution of the Russian Federation in that measure in what they are characterized by uncertainty of normative content in relation to amount and conditions of forming and realization in system of mandatory pension insurance of the pension rights of lawyers from among military pensioners, properly the acting as the insurer on payment of insurance premiums for mandatory pension insurance.

In this Resolution the Constitutional Court of the Russian Federation specified that conditions of purpose of insurance pensions on old age owing to the constitutional principle of equality which in system of mandatory pension insurance assumes, in addition, equal rights of insured persons on receipt of obligatory insurance coverage extend to all insured persons, including lawyers from among military pensioners.

At the same time the argumentation of the Constitutional Court of the Russian Federation for benefit of need of providing guarantees of obtaining in case of loss occurrence of insurance pension on old age to all payers of insurance premiums in the specified Resolution was based not on allocation of lawyers from among the other persons who are independently providing themselves with work, receiving long-service pension or disability pension according to the Law of the Russian Federation of February 12, 1993 No. 4468-I, and on community of legal status of specified persons.

So, the Constitutional Court of the Russian Federation specified that the pension rights of persons which are independently providing themselves with work including lawyers, are created by payment of insurance premiums according to the procedure, stipulated by the legislation about taxes and fees (article 430 of the Tax Code of the Russian Federation) and the Federal Law "About Mandatory Pension Insurance in the Russian Federation" (Article 28). If the size of their income for settlement period does not exceed 300 000 rubles, insurance premiums are paid in the fixed size.

The insurance premiums paid in such procedure are distributed on solidary and individual speak rapidly using generally established rate. In case of determination of individual pension coefficient only insurance premiums paid by individual part of rate and considered (reflected) in individual personal account of insured person are considered.

Such procedure for forming of the pension rights of persons which are independently providing themselves with work including lawyers, is established by the legislator proceeding from features of their legal status, allows them to acquire within system of mandatory pension insurance pension entitlement irrespective of income acquisition which for the specified categories of citizens is not permanent and guaranteed, in many cases is caused by market situation (including the professional market of legal services of which the high competition is characteristic).

The legal line items expressed in this Resolution are based that the procedure for forming by persons who are independently providing themselves with work provided by the current legislation (equally lawyers, individual entrepreneurs, notaries, etc.), the pension rights do not allow (at least, without payment of insurance premiums over the fixed size) to synchronize processes of forming of individual pension coefficient of the set size (since 2024 - 30) and acquisitions of insurance years of service of necessary duration (since 2025 - at least 15 years suffice). As a result the specified processes can be not complete by the time of achievement of retirement age, and then, despite loss occurrence, insured person will not acquire the right to obligatory insurance coverage and will get into the situation forcing it or to continue forming of the pension rights, or to refuse claims on obligatory insurance coverage. The similar mismatch of processes of forming of individual pension coefficient and acquisition of insurance years of service can be compensated by long implementation of the corresponding types of activity that, in turn, assumes earlier (taking into account realization of the qualification requirements identified by the legislation for separate categories of persons who are independently providing themselves with work) acquisition of legal status of the individual entrepreneur, lawyer, notary, etc.

For insured persons from among the military pensioners who are independently providing themselves with work opportunity long time to perform labor activity, as a rule, is absent. Taking into account conditions of award of pension for long service according to the Law of the Russian Federation of February 12, 1993 No. 4468-I (availability of length of service on the military and (or) equated to it service at least 20 years, and in case of dismissal from service on reaching age limit of stay on service, to the state of health or in connection with organizational and regular actions - achievement on the date of dismissal of 45-year age and availability of general working life of 25 calendar years and more from which the military and other equated to it service constitutes at least 12 years 6 months) citizens who are granted such pension begin to perform the corresponding types of activity and to create the pension rights in system of mandatory pension insurance after the termination of the military and (or) other equated to it service, i.e. at later age in comparison with other insured persons from among independently providing itself with work.

With respect thereto situations when some of them by the time of achievement of retirement age have no insurance years of service of certain duration and individual pension coefficient of required size, necessary for purpose of insurance pension on old age, are possible. Therefore, in case of loss occurrence in the form of achievement of retirement age the insured persons from among military pensioners performing lawyer, business or other similar activity can not acquire the rights to such pension that, in sense of this Resolution of the Constitutional Court of the Russian Federation, testifies to uncertainty of legal regulation in relation to amount and conditions of forming and realization in system of mandatory pension insurance of the pension rights of military pensioners, properly the acting as the insurer on payment of insurance premiums for mandatory pension insurance.

4. The unity of legal status of persons which are independently providing themselves with work in system of mandatory pension insurance as insurers and insured persons does not assume possibility of differentiation of rules of determination of the size and payment procedure them insurance premiums, the size of individual pension coefficient, the size and conditions of receipt of obligatory insurance coverage by these persons depending on the specifics of legal status of their separate categories (lawyers, individual entrepreneurs, notaries, etc.) caused by the economic activity performed by them, sources of the income, procedure for state registration, etc.

The distinctions which are available between business and lawyer activity including bigger manifestation in lawyer activities of public functions, also do not influence assessment of participation of lawyers and individual entrepreneurs in the relations on mandatory pension insurance: both in that and in other case it is about the independent socially useful work directed to income acquisition, and payment of insurance premiums for mandatory pension insurance by specified persons shall allow them to create the pension rights. At the same time from the point of view of economic content both in one, and in other case it is about possibility of receipt of the income under civil agreements, and bigger variety of specific types of such agreements in activities of the individual entrepreneur does not matter in case of determination of legal status of the called persons in system of mandatory pension insurance. Within the specified system there are no differences of legal status of lawyers and individual entrepreneurs and from other categories of the persons which are independently providing themselves with work specified in paragraph three of Item 1 of article 7 of the Federal law "About Mandatory Pension Insurance in the Russian Federation".

Thus, the legal line items expressed in the Resolution of the Constitutional Court of the Russian Federation of January 28, 2020 to No. 5-P are applicable to assessment of the disputed regulations in that measure in what they set uniform legal regime of participation of all these persons in system of mandatory pension insurance, including assign to them obligation on payment of the corresponding insurance premiums. At the same time, as appears from part two of article 74 of the Federal constitutional Law "About the Constitutional Court of the Russian Federation", the Constitutional Court of the Russian Federation makes the decision on case, estimating the considered regulations, including proceeding from their place in system of legal regulation.

In spite of the fact that the Resolution of the Constitutional Court of the Russian Federation of January 28, 2020 No. 5-P did not exclude preserving for the lawyers receiving long-service pension or disability pension according to the Law of the Russian Federation of February 12, 1993 No. 4468-I, obligation on payment of insurance premiums for mandatory pension insurance on condition of elimination of uncertainty concerning amount and conditions of forming and realization in system of mandatory pension insurance of the pension rights of such persons, the federal legislator, being effective within the diskretion provided to it, adopted the Federal Law "About introduction of amendments to the Federal law "About Mandatory Pension Insurance in the Russian Federation" according to which of number of the insurers obliged to pay insurance premiums for mandatory pension insurance, and the insured persons having the right to obligatory insurance coverage lawyers are excluded, the receiving specified pensions. They are granted the right to enter the relations on mandatory pension insurance on voluntary basis. Concerning other categories of the persons which are independently providing themselves with work and receiving long-service pensions or disability pensions according to the Law of the Russian Federation of February 12, 1993 No. 4468-I, legal regulation remained in invariable type.

Considering elimination of legal uncertainty of normative regulation in relation to amount and conditions of forming and realization in system of mandatory pension insurance of the pension rights of lawyers from among military pensioners in the called Federal Law thus, the Constitutional Court of the Russian Federation - that all persons which are independently providing themselves with work belong to one category of insurers and insured persons, and in view of community of their legal status - does not see the bases for preserving by other in addition to lawyers in system of mandatory pension insurance to persons specified in the subitem 2 of Item 1 of Article 6 and in paragraph three of Item 1 of article 7 of the Federal law "About Mandatory Pension Insurance in the Russian Federation" from among military pensioners of former legal regime of participation in system of mandatory pension insurance in case of which the obligation on payment of insurance premiums is assigned to them, but provision of obligatory insurance coverage by the time of achievement of retirement age is not guaranteed if the created pension rights will not reach the established minimum amount.

5. Thus, the subitem 2 of Item 1 of Article 6, Item 2.2 of Article 22, Item 1 of article 28 of the Federal law "About Mandatory Pension Insurance in the Russian Federation", the subitem 2 of Item 1 of article 419 of the Tax Code of the Russian Federation, part four of article 7 of the Law of the Russian Federation of February 12, 1993 No. 4468-I, parts 2 and 3 of Article 8, part 18 of article 15 of the Federal law "About Insurance Pensions" in their interrelation with the paragraph third Item 1 of article 7 of the Federal law "About Mandatory Pension Insurance in the Russian Federation" do not correspond to Articles 7 (part 1), 8 (part 2), 19 (parts 1 and 2), 35 (part 1), 39 (parts 1 and 2) and 55 (parts 2 and 3) Constitutions of the Russian Federation in that measure in what they in system of the operating legal regulation assign to persons who are independently providing themselves with work from among pensioners, receiving long-service pension or disability pension according to the Law of the Russian Federation of February 12, 1993 No. 4468-I, obligations on payment of insurance premiums for mandatory pension insurance without establishment of sales warranties of the pension rights on reaching retirement age.

It is necessary to the federal legislator - proceeding from requirements of the Constitution of the Russian Federation and taking into account the legal line items of the Constitutional Court of the Russian Federation based on its provisions - to make the changes following from this Resolution to the operating legal regulation.

Proceeding from stated and being guided by Articles 47. 1, 71, 72, 74, 75, 78, 79, 80 and 100 Federal constitutional Laws "About the Constitutional Court of the Russian Federation", Constitutional Court of the Russian Federation

decided:

1. Recognize the subitem 2 of Item 1 of Article 6, Item 2.2 of Article 22, Item 1 of article 28 of the Federal law "About Mandatory Pension Insurance in the Russian Federation", the subitem 2 of Item 1 of article 419 of the Tax Code of the Russian Federation, part the fourth article 7 of the Law of the Russian Federation of February 12, 1993 No. 4468-I, parts 2 and 3 of Article 8, part 18 of article 15 of the Federal law "About Insurance Pensions" in their interrelation with the paragraph third Item 1 of article 7 of the Federal law "About Mandatory Pension Insurance in the Russian Federation" not corresponding to Articles 19 (parts 1 and 2), 39 (parts 1 and 2) and 55 (parts 2 and 3) Constitutions of the Russian Federation in that measure in what they, in system of the operating legal regulation assigning to persons who are independently providing themselves with work from among pensioners, receiving long-service pension or disability pension according to the Law of the Russian Federation of February 12, 1993 No. 4468-I, obligation on payment of insurance premiums for mandatory pension insurance, do not establish for them sales warranties of the pension rights on reaching retirement age.

2. It is necessary to the federal legislator - proceeding from requirements of the Constitution of the Russian Federation and taking into account the legal line items of the Constitutional Court of the Russian Federation based on its provisions - to make the changes following from this Resolution to the operating legal regulation.

3. The law-enforcement decisions in the matter of the citizen Vorobyov Konstantin Vitalyevich passed based on the disputed legislative provisions in that measure in what they are acknowledged this Resolution not corresponding to the Constitution of the Russian Federation are subject to revision in accordance with the established procedure in the part concerning permission of question of its removal from accounting as the payer of insurance premiums for mandatory pension insurance.

4. This Resolution is final, is not subject to appeal, becomes effective from the date of official publication, is effective directly and does not require confirmation by other bodies and officials.

5. This Resolution is subject to immediate publication in "The Russian newspaper", "Russian Federation Code" and on "The official Internet portal of legal information" (www.pravo.gov.ru).

 

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