RESOLUTION OF BUREAU OF INTER-PARLIAMENTARY ASSEMBLY OF EURASIAN ECONOMIC COMMUNITY

of April 14, 2005 No. 12

About Recommendations about harmonization of basic provisions of the tax legislation of state members of EurAsEC (on the basis of the comparative and legal analysis of national legal systems and taking into account provisions of the international documents)

The bureau of Inter-parliamentary Assembly decides:

1. Approve the Recommendations about harmonization of basic provisions of the tax legislation of state members of EurAsEC prepared on the basis of the comparative and legal analysis of national legal systems and taking into account provisions of the international documents (appendices 1, 2).

2. Send the specified documents to parliaments and the governments, the Secretariat of Integration Committee of EurAsEC for use in work on harmonization of national legal systems and enhancement of system of law of Community.

 

Appendix 1

to the resolution of EurAsEC MPA Bureau of April 14, 2005 No. 12

Recommendations about harmonization of basic provisions of the tax legislation of state members of EurAsEC (on the basis of the comparative and legal analysis of national legal systems and taking into account provisions of the international documents)

These Recommendations about harmonization of basic provisions of the tax legislation of state members of EurAsEC are developed on the basis of the comparative and legal analysis of national legal systems taking into account rules of international law.

Harmonization of tax legislations will promote forming of the single beginnings and the principles of legal regulation of the tax relations, will provide identical rules for subjects of managing and will promote finally economic integration of state members of EurAsEC by rapprochement of their taxation systems.

The carried-out comparative and legal analysis of bases of the taxation in state members of EurAsEC allows to formulate the following offers (recommendations) about their unification and harmonization:

1. Because in tax legislations of gosudarstvchlen of EurAsEC are available determined (or essential) discrepancies and gaps, it is represented justified to determine uniformly coverage of tax codes concerning regulation of collection of all tax payments, and also regarding ratio of provisions of the tax and customs legislation.

2. As determination of limits of operation of acts of the tax legislation significantly influences the rights and obligations of all participants of tax legal relationship, it is reasonable to disaggregate taking into account experience of the Russian Federation and the Republic of Tajikistan in tax codes of the Republic of Belarus, the Republic of Kazakhstan and the Kyrgyz Republic regulations about entry into force of acts of the tax legislation (including questions of retroactive effect of acts).

3. Considering that circumstance that speak rapidly general (first) tax codes of the Republic of Belarus and the Russian Federation more precisely and fully determine the taxation objects, it is offered to make use of this positive experience of rule-making in case of enhancement of the tax legislation of the Republic of Kazakhstan, the Republic of Tajikistan and the Kyrgyz Republic. Fixing in tax codes of exact concepts and characteristics of the taxation objects will allow to provide the sequence of statement and uniform application of regulations of codes.

4. It is also offered to consider question of feasibility of establishment in tax codes of state members of EurAsEC of more detailed regulation of consequence in law of suspension, write-off and renewal of the action which earlier is not performed, which is written off or the suspended tax liability.

We pay attention to absence in the Tax code of the Republic of Kazakhstan of the provisions regulating procedure for execution of the tax liabilities of persons recognized as incapacitated.

5. It is obviously possible to enshrine types, the general bases, procedure and conditions of establishment and application of privileges in tax codes of state members of EurAsEC. At the same time experience of the Republic of Belarus where the Tax code contains list of types of tax benefits and forms of the state support of taxpayers, and also general questions of establishment and application of tax benefits can be used.

6. Noting that in state members of EurAsEC significant differences regarding legislative fixing of change of completion dates of the tax liability are observed, it is offered to address experience of the Russian Federation and to provide legal regulation of procedure for change of completion date of the tax liability in full it is direct in tax codes.

It is represented also reasonable in a number of state members of Community to expand the list of possible forms of change of completion date of the tax liability, including for the purpose of stimulation of investing and innovative activities to use such form of change of completion date of the tax liability as the investment tax credit.

7. Considering that methods of ensuring execution of the tax liabilities as the special measures of impact stimulating proper execution by the payer of the tax liabilities play important role in ensuring timely receipt of taxes, charges (duties) in the budget, it is represented justified to enshrine them in tax codes of all state members of EurAsEC.

At the same time it is reasonable to provide the widest list of methods of ensuring execution of the tax liabilities. Today as reference point that list which is enshrined in tax codes of the Republic of Belarus and the Russian Federation can be used: pledge, the guarantee, penalty fee, suspension of account transactions in bank, arrest. At the same time it is necessary to make clause that other methods of providing according to the procedure and on the conditions established by the customs legislation also can be applied to providing customs payment.

8. Considering that in the tax legislation of state members of EurAsEC there are significant differences, and in some cases and gaps in case of determination of elements (methods) of tax accounting, it is represented proved to develop single approaches to question of implementation of tax accounting and forming of tax statements.

9. Recognizing availability of general approaches in regulation of the basic provisions relating to taxpayer registration questions, we suggest to unify regulations of the tax legislation of state members of EurAsEC regarding the provisions regulating the place of the registration taxpayer registration (in the location of the taxpayer, at the place of residence, in the location of property, etc.).

10. For the purpose of harmonization of the tax legislation of gosudarstvchlen of the EurAsEC regulating questions of implementation of tax control it is represented justified to unify:

- forms (methods) of implementation of tax control;

- types of the tax audits performed in state members of EurAsEC, and also the basis of their classification by types;

- frequency of conducting tax audits and term of their carrying out.

11. For harmonization of the relations arising in case of appeal of decisions of tax authorities, actions (failure to act) of their officials in state members of EurAsEC it is necessary to unify the regulations regulating effects of submission of the claim (statement) in competent authorities, having established requirements about opportunity or impossibility of suspension of execution of the appealed decisions of tax authorities or actions (failure to act) of their officials in case of submission of the claim, and also having concretized questions of collection of penalties (penalty fee) for the period of consideration of the claim of the taxpayer.

The provided recommendations about unification and harmonization of tax legislations of state members of EurAsEC can be used in case of enhancement of provisions of tax codes in the course of preparation of the relevant bills of introduction of changes in them and amendments. It is especially urgent for the Kyrgyz Republic where new edition of the Tax code prepares.

Appendix 2

to the resolution of EurAsEC MPA Bureau of April 14, 2005 No. 12

Comparative and legal analysis of basic provisions of the tax legislation of state members of EurAsEC

Now in all state members of EurAsEC tax codes are effective, they, and specifically general (first) parts of codes, became subject of this research. Certainly, other regulatory legal acts (the laws, decrees, decrees, etc.) also are part of the tax legislation of each of state members of EurAsEC, however at one of the first stages on harmonization of tax legislations of state members of EurAsEC it is represented to more reasonable to carry out the analysis of provisions of codes. (1)

In the Kyrgyz Republic of one of the first in the former Soviet Union the Tax code - was accepted on June 26, 1996. The tax code of the Kyrgyz Republic (further - the Tax Code of the Kyrgyz Republic) took effect since July 1, 1996 (separate provisions originally took effect, afterwards the code was supplemented). In it fundamental obligations and powers of tax authorities, procedures of calculation and collection of taxes, collection financial and penalties, and also the right and obligation of the taxpayer were determined. General provisions are regulated by Section I provisions (Chapter 1-11) of the code. We note that according to the order of the President of the Kyrgyz Republic of January 13, 2004 No. 3 forms the commission on preparation of the project of the new editorial office Tax Code of the Kyrgyz Republic in this connection in this research comparison of also separate provisions of the project is carried out (working option as of December 1, 2004).

In the Russian Federation and the Republic of Tajikistan provisions of tax codes began to be effective since January 1, 1999 (in the Russian Federation the Part one of the Tax code of July 31, 1998, in the Republic the Tadzhikistannalogovy code of the Republic of Tajikistan of November 12, 1998 originally became effective). Part one of the Tax Code of the Russian Federation (further - the Tax Code of the Russian Federation) includes 7 Sections, 20 Chapters, 142 Articles. General part of the Tax code of the Republic of Tajikistan of 1998 included 3 Sections, 15 Chapters, 116 Articles.

At the same time it should be noted that in Tajikistan since January 1, 2005 provisions of the new Tax code of the Republic of Tajikistan of November 3, 2004 are effective (further - the Tax Code of the Republic of Tajikistan) which general part includes 3 Sections, 16 Chapters, 132 Articles. Thus, Tajikistan became the first state in EurAsEC where new edition of the tax code was accepted.

The following country where the tax legislation was codified, Kazakhstan is. So, the Code of the Republic of Kazakhstan "About taxes and other obligatory payments in the budget" (further - the Tax Code of the Republic of Kazakhstan) was accepted on June 12, 2001 and took effect since January 1, 2002. Feature of structural creation of the Tax Code of the Republic of Kazakhstan is that a number of tax regulations which taking into account their content belong to provisions, general in sense, are located not only in part 1 "General part" (2 Sections, 10 Chapters, 58 Articles), but also regarding 2nd "Special part" (the Section 3, of Chapter 11-13, of Article 59-76), and also part 3 "Tax administration" (Sections 17, of 18, of Chapter 92-101, of Article 517-568).

The Republic of Belarus became the last of the states of EurAsEC where general provisions of the tax code became effective. So, the General part of the Tax Code of the Republic of Belarus was accepted on December 19, 2002, and became effective since January 1, 2004. It is necessary to stipulate separately that part of provisions of the Code according to the Law of the Republic of Belarus of January 4, 2003 "About enforcement of the General part of the Tax Code of the Republic of Belarus" become effective from the date of enforcement of the Special part of the Tax Code of the Republic of Belarus (Items 1 and 2 of Article 2, Item 1 of Article 3, Article 6, Items 2 and 3 of Article 7, of Article 8-12, Article 20, Article 31, Item 1 of Article 34, part one of item 4 of Article 43) in this connection data analysis of regulations can be carried out with certain degree of convention. (2)

Results of this comparative and legal research are stated according to the sequence of carrying out the analysis of the main tax institutes.

1. General (main) provisions of the taxation

EurAsEC, characteristic of general (first) parts of tax codes of state members, is availability in their structure of independent Sections which contain the most general and fundamental provisions of legal regulation of the taxation. As a rule, these Sections include several Chapters determining the principles of the taxation, system of the tax legislation, the used terminology, the list of taxes (charges, duties) (as exception, the Section I of the Tax Code of the Kyrgyz Republic contains only one Chapter 1 "Application of the Tax code").

 

The relations regulated by the Tax code

Determination of subject of legal regulation (the regulated relations) in all tax codes of state members of EurAsEC is performed equally. So, tax codes install system of taxes (3), the basic principles of the taxation, govern the imperious relations on establishment, introduction, change, cancellation of taxes, and the relations arising in the course of execution of the tax liability, implementation of tax control, appeal of decisions of tax authorities, actions (failure to act) of their officials and also establish the rights and obligations of payers, tax authorities and other participants of the relations regulated by the tax legislation.

It should be noted that in Kyrgyzstan at the moment legal regulation of charges, payments, the income and sanctions as these relations are governed by the Law of the Kyrgyz Republic of April 14, 1994 "About non-tax payments" in edition of the Law of the Kyrgyz Republic of January 5, 2004 is removed from coverage of the Tax Code (control of timeliness and completeness of payment of such payments tax authorities also perform).

Unlike Belarus and Kazakhstan, in Russia, Tajikistan and Kyrgyzstan tax codes in a varying degree regulate including questions of responsibility for tax offenses.

In case of determination of coverage of the tax legislation (tax code) of obligatory mentioning the question of ratio of the tax legislation (tax code) with the customs legislation (customs code) as the majority of customs payments by the legal nature are close to tax to payments requires.

It should be noted that in the solution of the matter in gosudarstvakhchlena of EurAsEC there is no single approach. So, in the Tax Code of the Republic of Belarus there is no individual clause about ratio of regulations of tax and customs legislations in this connection regulations of the Code are applied to customs legal relationship and in some cases sendings to the customs legislation establishing other procedure (features) contain.

According to the paragraph to the second Article 2 of the Tax Code of the Russian Federation (4) on establishment, introduction and collection of customs payments, and also to the relations arising in the course of control of customs payment, appeal of acts of customs authorities, actions (failure to act) of their officials and accountability of perpetrators, the legislation on taxes and fees is not applied to the relations if other is not provided by this Code.

According to Article 19 of the Tax Code of the Republic of Kazakhstan customs authorities according to the Code and the customs legislation of the Republic of Kazakhstan perform collection of taxes and other obligatory payments in the budget when moving goods through customs border of the Republic of Kazakhstan. Chapter 91 "Customs payments" contains only two Articles. So, payers, procedure for calculation, payment, return and collection of customs payments, and also privilege are determined by customs payments by the customs legislation of the Republic of Kazakhstan, and rates are determined by the Government of the Republic of Kazakhstan.

In Tajikistan part 3 of Article 1 of the Tax Code determines that collection of customs duty and other customs payments is regulated first of all by regulations of the customs legislation, and also the Code and other regulatory legal acts.

Besides, it should be noted that the provision on regulation of collection of the state fee by the Law of the Republic of Tajikistan "About the state fee", and other obligatory payments in the budget which are not determined by the Code, the legislation on other obligatory payments is enshrined in the legislation of Tajikistan.

Regarding 1 Article 1 of the Tax Code of the Kyrgyz Republic it is fixed that the Code is the code of legislative provisions on all taxes, their administration, tax actions of taxpayers in the territory of the Kyrgyz Republic, except for the customs duties, charges and payments regulated by the customs legislation.

At the same time features of the taxation of small business entities and free economic zones, and also the subjects paying taxes and other payments on the terms of production sharing agreements are regulated by the relevant laws of the Kyrgyz Republic on them. In the draft of the Tax Code of the Kyrgyz Republic the clause similar, the Russian Federation containing in the Tax Code about non-use of regulations of the Code is applied to customs legal relationship if other is not established by the Code.

Provisions of the Tax Code of the Kyrgyz Republic are applied also to the relations on payment of other taxes if other is not provided by special legal acts (part 2 Articles 2) (so, for example, the Code regulates questions of control of correctness of calculation and tax discharge for use of highways and the contributions to fund of liquidation of the emergency situations which are not included in the Code, but established by other laws before enforcement of the Tax Code).

Thus, if in Belarus regulations of the Tax Code are applied to customs legal relationship taking into account the features established by the customs legislation in Russia and Kyrgyzstan (according to the draft of the Tax Code) - not applied if other is not established by the Code, then in Kazakhstan, Tajikistan and Kyrgyzstan (according to the operating Tax Code) collection of customs payments is performed, first of all, according to the customs legislation.

 

Basic principles of the taxation

Fixing in the codified laws of basic provisions of industry of the legislation, i.e. the principles, is important and necessary part of forming of the most common, characteristic and main features of any industry of the legislation. This thesis fully concerns also industry of the tax legislation.

Tax codes of state members of EurAsEC enshrined such provisions about the principles of the taxation in different amount. In more detail the matter is regulated in Kazakhstan and in the draft of the Tax Code of the Kyrgyz Republic where the principles of the taxation are marked out structurally in individual clauses, and also in the Russian Federation where the matter received the greatest semantic filling.

The analysis of regulations of tax codes allows to mark out the following basic principles of the taxation:

1) fixing of obligation of taxpayers (physical persons and legal entity) to pay legally established taxes, to participate thereby in financing of the public expenditures;

2) recognition of generality of the taxation;

3) inadmissibility of assignment on someone to pay to obligation taxes, and also having the signs of taxes established by the Code other fees and payments which are not provided by the Code;

4) for the purpose of respect for justice of the taxation prohibition of provision of tax benefits of individual nature (Belarus, Russia, Kazakhstan, the draft of the Tax Code of the Kyrgyz Republic);

5) non-admission of establishment of the taxes and privileges on their payment causing damage to homeland security, territorial integrity of the state, political and economic stability, including breaking common economic space (Belarus, Russia);

6) need of determination of all elements of the taxation in case of establishment of tax (Belarus, Russia, the draft of the Tax Code of the Kyrgyz Republic).

In addition to stated above in the Tax Code of the Russian Federation (Article 3) such important principles are established as:

1) inadmissibility of discrimination nature and different application of regulations proceeding from social, racial, national, religious and other similar criteria;

2) non-admission of establishment of tiered rates of taxes and fees, tax benefits depending on pattern of ownership, nationality of physical persons or the place of origin of the capital;

3) need of availability for taxes and fees of the economic basis and respectively non-admission of their any establishment;

4) inadmissibility of establishment of the taxes and fees interfering realization by citizens of the constitutional rights.

Also fixing of the rule about interpretation of all unremovable doubts, contradictions and ambiguities of acts of the tax legislation for benefit of the taxpayer is represented at the same time important. This provision contains in the Tax Code of the Russian Federation and the draft of the Tax Code of the Kyrgyz Republic.

 

Tax legislation

The question of structure of the tax legislation is one of fundamental and is of rather great importance for law enforcement officials as characterizes amount of normative legal instructions which need to be studied and afterwards to apply (to observe) in practice. Any taxpayer is interested in existence of smaller quantity of regulatory legal acts and absence in them referential regulations to other legislation.

The most accurate approach to determination of types of the regulatory legal acts included in structure of the legislation on taxes and fees is chosen in the Russian Federation. So, according to Article 1 of the Tax Code of the Russian Federation the legislation of the Russian Federation on taxes and fees consists of the Code and the Federal Laws on taxes and fees adopted according to it. The legislation of subjects of the Russian Federation on taxes and fees consists of the laws on taxes and fees of the subjects of the Russian Federation adopted according to the Code; regulatory legal acts of bodies of municipalities about the local taxes and charges are accepted by representative bodies of municipalities also according to this Code.

The individual clause of the Tax Code of the Russian Federation stipulates the status of regulatory legal acts of federal executive bodies, executive bodies of subjects of the Russian Federation, executive bodies of local self-government about taxes and fees. The specified bodies in cases, stipulated by the legislation about taxes and fees, within the competence publish regulatory legal acts on the questions connected with the taxation and with charges which cannot change or supplement the legislation on taxes and fees, at the same time federal executive bodies authorized to perform functions on control and supervision in the field of taxes and fees and in the field of customs affairs, and their territorial authorities have no right to publish regulatory legal acts concerning taxes and fees.

The Tax Code of the Kyrgyz Republic does not determine structure of the tax legislation, and in Kazakhstan and Tajikistan the tax legislation in addition to the Code includes the regulatory legal acts which are also accepted on its basis and according to it (in Tajikistan also international agreements belong to the tax legislation).

In Belarus, as well as in Kazakhstan and Tajikistan, the tax legislation is understood more widely, than in Russia, at the same time according to Item 1 of Article 4 of the Tax Code it in addition to the Code includes the Republic of Belarus:

the laws adopted according to the Code regulating the tax matters;

decrees, decrees and orders of the President of the Republic of Belarus;

orders of the Government of the Republic of Belarus;

regulatory legal acts of republican state bodies, local authorities and self-government.

General for tax codes of the majority of the countries of EurAsEC is fixing of regulations on higher legal force of regulations of codes. However only the Tax Code of the Russian Federation contains the individual clause 6, in which cases when regulatory legal acts about taxes and fees are recognized non-conforming to the Code are listed (in the draft of the Tax Code of the Kyrgyz Republic there is similar in fact Article 13):

1) the act is issued by the body which does not have the right to issue acts of this sort according to the Code or issued with violation of established procedure of the publication of such acts;

The act cancels 2) or limits the rights of taxpayers, payers of charges, tax agents, their representatives or power of tax authorities, customs authorities, bodies of state non-budgetary funds established by the Code;

3) the act changes the content of obligations of participants of the relations regulated by the legislation on taxes and fees, other persons whose obligations are established by the Code determined by the Code;

4) the act prohibits the actions of taxpayers, payers of charges, tax agents, their representatives permitted by the Code;

5) the act prohibits the actions of tax authorities, customs authorities, bodies of state non-budgetary funds, their officials permitted or ordered by the Code;

The act resolves 6) or allows the actions prohibited by the Code;

7) the act changes the bases established by the Code, conditions, the sequence or operations procedure of participants of the relations regulated by the legislation on taxes and fees, other persons whose obligations are established by the Code;

8) the act changes content of the concepts and terms determined in the Code or uses these concepts and terms of other value, than they are used in the Code;

9) the act otherwise contradicts the general beginnings and (or) literal sense of specific provisions of the Code.

At the same time feature of system of law of Belarus is fixing in the Code of the constitutional regulation about priority of regulations of decrees or presidential decrees of the Republic of Belarus over regulations of the Code or other law regulating the tax matters in case of their discrepancy, except as specified, when powers on the publication of the decree or the decree were provided by the law (item 4 of Article 3).

General tendency of development of legislations of the countries of EurAsEC before adoption of tax codes was unsystematic inclusion of tax regulations (generally regulations about provision of tax benefits) in the regulatory legal acts relating to other industries of the legislation. This circumstance formed the basis for fixing in tax codes of regulation about establishment prohibition in the non-tax legislation of the regulations regulating tax the relations, except cases which are directly provided in tax codes (part two of Item 1 of Article 3 of the Tax Code of the Republic of Belarus, item 4 of Article 2 of the Tax Code of the Republic of Kazakhstan, part 2 of Article 5 of the Tax Code of the Kyrgyz Republic (part 11 of Article 3 of the project). In Tajikistan this rule is established otherwise - by transfer of the questions connected with the taxation which can be included in the non-tax legislation (part 7 of Article 2).

 

Action of international treaties on the tax matters

In case of legal regulation of any relations determination of ratio of the national legal system and the international treaties signed by the state with other states is commonly accepted. At the same time, as a rule, the states recognize priority of the conventional principles of international law and provide compliance to them of the legislation.

Tax codes of all states of EurAsEC, except Kyrgyzstan (in the draft of the Tax Code of the Kyrgyz Republic the individual clause is devoted to the matter), are determined that if the international treaty containing the provisions concerning the taxation establishes other rules and regulations than provided by the Code and regulatory legal acts adopted according to it, then rules and regulations of international treaties (Article 5 of the Tax Code of the Republic of Belarus, Article 7 of the Tax Code of the Russian Federation, Item 5 of Article 2 of the Tax Code of the Republic of Kazakhstan, part 8 of Article 2 of the Tax Code of the Republic of Tajikistan) are applied.

In the Tax Code of the Republic of Tajikistan, besides, regulations about provision of privileges and tax benefits to certain subjects according to international treaties are specified. So, the privileges provided by the international treaty on prevention of double taxation are not applied to resident of the State Party of the agreement if this resident is used by other person which is not resident of such state for the purpose of receipt of privileges.

 

Participants of tax legal relationship (participants of the relations regulated by the tax legislation)

The fact that in case of statement of regulations of tax codes it is necessary to talk about those subjects to which these legal instructions, that is about participants of tax legal relationship are addressed is obvious. It is possible to carry to them, on the one hand, state bodies, local authorities and self-government and other authorized organizations (officials), and, on the other hand, taxpayers and their tax agents.

Tax codes not of all countries of EurAsEC participants of the relations regulated by the tax legislation" though about the subjects stated above the speech, certainly, goes allocate such concept as "(codes in Kazakhstan and Kyrgyzstan).

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