RESOLUTION OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION

of July 14, 2005 No. 9-P

On the case of check of constitutionality of provisions of article 113 of the Tax Code of the Russian Federation in connection with the claim of the citizen G. A. Polyakova and request of Federal Arbitration Court of the Moscow district

On behalf of the Russian Federation

Constitutional court of the Russian Federation as a part of the Chairman V. D. Zorkin, judges N. S. Bondar, G. A. Gadzhiyev, Yu. M. Danilov, L. M. Zharkova, G. A. Zhilin, S. M. Kazantsev, M. I. Kleandrov, A. L. Kononov, L. O. Krasavchikova, S. P. Mavrin, N. V. Melnikov, Yu. D. Rudkin, N. V. Seleznyov, A.YA. Plums, V. G. Strekozov, O. S. Hokhryakova, B. S. Ebzeev, V. G. Yaroslavtsev,

with participation of the citizen G. A. Polyakova and her representative - the lawyer O. V. Nikulenko, the judge of Federal Arbitration Court of the Moscow district S. V. Alekseev, the representative of the State Duma - the deputy A. P. Moskalts, the representative of the Federation Council - the doctor of jurisprudence E. V. Vinogradova,

being guided by Article 125 (part 4) Constitutions of the Russian Federation, Item 3 parts one, parts three and the fourth Article 3, Article part one 21, Articles 36, 74, 86, 96, 97, 99, 101, 102 and 104 Federal constitutional laws "About the Constitutional Court of the Russian Federation",

considered case on check of constitutionality of provisions of article 113 of the Tax Code of the Russian Federation in open session.

Reason for consideration of the case were the claim of the citizen G. A. Polyakova to violation of its constitutional rights article 113 of the Tax Code of the Russian Federation and request of Federal Arbitration Court of the Moscow district about check of constitutionality of provisions of the same Article. The basis to consideration of the case was the found uncertainty in question of whether there correspond the Constitutions of the Russian Federation disputed by applicants of legislative provision, establishing prescription of accountability for making of tax offense.

As the claim and request concern the same subject, the Constitutional Court of the Russian Federation, being guided by article 48 of the Federal constitutional Law "About the Constitutional Court of the Russian Federation", connected cases on these addresses in one production.

Having heard the message of the judge-speaker M. I. Kleandrov, explanation of agents of the parties, speech of the plenipotentiary of the Government of the Russian Federation in the Constitutional Court of the Russian Federation M. Yu. Barshchevsky, speech of the representatives invited in meeting: from the Prosecutor General of the Russian Federation - I. A. Sugrobova, from the Federal Tax Service - A. A. Ustinova, from JSC Yukos Oil Company - the lawyer B. F. Abushakhmin, having researched the submitted documents and other materials, the Constitutional Court of the Russian Federation established:

1. According to article 113 of the Tax Code of the Russian Federation (in edition of July 9, 1999) person cannot be made responsible for making of tax offense if from the date of its making or from the next day after the termination of tax period during which this offense was made three years (prescriptive limit) expired; calculation of prescriptive limit from the date of making of tax offense is applied to all tax offenses, except provided by articles 120 and 122 of this Code; calculation of prescriptive limit from the next day after the termination of the corresponding tax period is applied to the tax offenses provided by articles 120 and 122 of this Code.

1.1. The citizen G. A. Polyakova disputing constitutionality of the called legislative provisions was made by the decision of the head of inspection of the Ministry of Taxes and Tax Collection of the Russian Federation for Southern administrative district of the city of Moscow of July 23, 2002 responsible in the form of penalty for making of tax offense, stipulated in Item 2 articles 119 of the Tax Code of the Russian Federation (the tax declaration about income gained in 1999, it provided only on July 9, 2002 though shall make it no later than May 3, 2000). As G. A. Polyakova voluntarily did not pay the corresponding amount, the tax authority appealed on January 9, 2003 to Nagatinsky district court of the city of Moscow with the action for declaration about collection from it the tax sanction. The decision of August 12, 2004 left by cassation instance without change, the court granted this application, having specified that the decision of tax authority was made, contrary to opinion of the defendant, before the expiration the stipulated in Clause 113 Tax Code of the Russian Federation of three-year prescriptive limit of attraction to tax responsibility. Besides, she is found by sentence of the same court of August 19, 2003 guilty of crime execution, provided by the Criminal Code of the Russian Federation, - tax avoidance from physical person in especially large size by non-presentation of the declaration on the income (Article part two 198).

As approves G. A. Polyakov, article 113 of the Tax Code of the Russian Federation does not correspond to Article 49 (part 1) Constitutions of the Russian Federation. According to the declarant, only the court has the right to draw final conclusion on guilt or innocence of person in making of the offense provided by the Tax Code of the Russian Federation and before the judgment (which shall be accepted till the lapse of time) person is not considered made responsible for making of tax offense; meanwhile owing to the fact that production on cases on tax offenses and involvement of taxpayers to responsibility is performed by tax authority the disputed legislative provisions, in fact, allow to make person responsible for tax offense after the expiration of three years from the moment of its making (prescriptive limit) as the court can make the decision on collection of the tax sanction outside this term.

1.2. Constitutionality of provisions of article 113 of the Tax Code of the Russian Federation disputes also Federal Arbitration Court of the Moscow district in which production there is case on collection with JSC Yukos Oil Company of penalty for intentional failure to pay number of taxes, including the value added tax. As it is specified in request, the decision on involvement of the taxpayer to responsibility for intentional failure to pay this tax for January-July, 2001 is made by tax authority on September 2, 2004, i.e. after three years from the moment of making of offense.

Having come to conclusion that provisions of article 113 of the Tax Code of the Russian Federation contradict the Constitution of the Russian Federation, to its Articles 19 (part 1) and 57, the Federal Arbitration Court of the Moscow district suspended proceeedings and made inquiry about check of their constitutionality in the Constitutional Court of the Russian Federation.

According to the applicant, these provisions, without providing break of current of prescriptive limit for cases when before its termination the taxpayer makes new tax offense, promote thereby intentional non-execution of the constitutional obligation by it to pay legally established taxes that does not correspond to purpose of institute of prescription of accountability for tax offenses and makes impossible application of the measures of the state coercion designed to provide execution of this constitutional obligation by all taxpayers equally.

1.3. The constitutional court of the Russian Federation already concerned earlier question of whether constitutional rights of taxpayers by regulations of article 113 of the Tax Code of the Russian Federation on prescriptive limit of accountability for making of tax offenses are affected. In Determination of January 18, 2005 N 36-O about refusal in acceptance to consideration of the claim of JSC Yukos Oil Company the Constitutional Court of the Russian Federation came to conclusion that this provision applied in specific case, the rights of the applicant were not violated.

As proof of the approval about illegality of provision of article 113 of the Tax Code of the Russian Federation in the sense given it by law-enforcement practice, JSC Yukos Oil Company referred only to the decision of Arbitration Court on its case. In essence, the applicant asked to confirm, but not to confute constitutionality of this provision and actually only expressed disagreement with the decision of Arbitration Court. Meanwhile check of legality and justification of law-enforcement decisions in the matter of the applicant, including permission of question of whether the term of attraction established by the law it to tax responsibility for making of tax offense was passed as connected with establishment and research of the actual circumstances of specific case, is within the competence of Arbitration Courts.

Proceeding from it the Constitutional Court of the Russian Federation refused acceptance to consideration of this claim as the admissibility which is not answering to criterion according to requirements of the Federal constitutional Law "About the Constitutional Court of the Russian Federation".

1.4. As, as appears from Article 125 (part 4) of the Constitution of the Russian Federation, Article part three 74, of articles 97 and 102 of the Federal constitutional Law "About the Constitutional Court of the Russian Federation", the Constitutional Court of the Russian Federation in connection with claims of citizens to violation of constitutional rights and freedoms the law applied or which is subject to application in specific case and in connection with requests of courts accepts resolutions only in the subject specified in the address and only concerning that part of the act which constitutionality is called in question, consideration subject of this case are provisions of article 113 of the Tax Code of the Russian Federation according to which person cannot be made responsible for making of tax offense if from the date of its making or from the next day after the termination of tax period during which this offense was made three years (prescriptive limit) expired.

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