DECISION OF THE SUPREME ARBITRATION COURT OF THE RUSSIAN FEDERATION

of July 28, 2011 No. BAC-8096/11

On behalf of the Russian Federation

The substantive provisions of the decision are announced 21.07.2011

The decision is in full made 28.07.2011

The Supreme Arbitration Court of the Russian Federation as a part of the chief judge Zavyalova T. V., judges Batsiyev V. V. and Popovchenko A. A., in case of taking the minutes the assistant judge Korobova E. V., having considered in judicial session the application of Agency of Tax Attorneys limited liability company for recognition invalid Item 2 of the Order of the Federal Tax Service of 15.12.2010 of N MMB-7-3/730 @ "About approval of form and format of the tax declaration on the income tax of the organizations, the Procedure for its filling" and the appendices N 4 to the Procedure for filling of the tax declaration on the income tax of the organizations approved by the Order of the Federal Tax Service of 15.12.2010 of N MMB-7-3/730 @ with participation in judicial session of representatives: from limited liability company "Agency of Tax Attorneys" Kulikov A. A. (power of attorney of 01:07. 2011); from the Federal Tax Service - Grigoriev V. V. (the power of attorney of 14.02.2011 N MMB29-7/67), O.G.'s Wingnut (the power of attorney of 21.07.2011 N MMB-29-7/245),

established:

the Agency of Tax Attorneys limited liability company (daleeobshchestvo, the applicant) appealed to the Supreme Arbitration Court of the Russian Federation with the statement for recognition invalid Item 2 of the Order of the Federal Tax Service of 15.12.2010 of N MMB-7-3/730 @ "About approval of form and format of the tax declaration on the income tax of the organizations, the Procedure for its filling" (further - the Order of FNS of Russia of 15.12.2010 of N MMB-7-3/730 @, the Order) and the appendices N 4 to the Procedure for filling of the tax declaration on the income tax of the organizations approved by the Order of FNS of Russia of 15.12.2010 of N MMB-7-3/730 @ (further - appendix N 4). As the basis of the declared requirement society refers to discrepancy of Item 2 of the Order which established obligation on application of new form of the tax declaration on the income tax of the organizations starting with the reporting for 2010, to requirements of article 5 of the Tax Code of the Russian Federation (further - the Code) according to which acts of the legislation on taxes and fees, and also regulatory legal acts of taxes and fees of federal executive bodies, executive bodies of subjects of the Russian Federation, local government bodies become effective not earlier than after one month from the date of their official publication and not earlier than the 1st of the next tax period. Thus, the applicant believes that the Order shall become effective from 01.01.2012. According to society, the Order in the disputed part affects the rights and legitimate interests of the uncertain group of people in the field of business activity, assigning to taxpayers obligation on submission of the declaration on other, than earlier, form and in other format and need to perform others, the obligations which are earlier not provided by the law for which non-execution measures of tax responsibility (article 119.1 of the Code) are applied.

Disputing appendix N 4, assigning to taxpayers obligation on reflection of the amounts of the income which is not considered in case of determination of tax base, and the expenses considered for the purposes of the taxation by separate categories of taxpayers, the applicant refers to discrepancy of this appendix to the definition of the declaration given in article 80 of the Code and also to requirements of Articles 315 - 317 Codes installing system of the interconnected actions for forming of registers of tax accounting and amount of information necessary for calculation of tax. These articles of the Code, according to society, do not assign to taxpayers of obligation on structuring data on expenses in that type as assumes the appendix N 4. The Federal Tax Service (further - FNS of Russia), objecting to the declared requirement, specifies compliance of the disputed Order Item to provisions of article 5 of the Code as the regulatory legal act was published by 18.02. 2011, therefore becomes effective from 18.03.2011 and it is applied from the same date. Does not see FNS of Russia of contradictions and in content of appendix N 4 to requirements of the Code which gave the Federal Tax Service the right according to form of the tax declaration and procedure for its filling. The list of the income types and expenses established for reflection in this appendix according to FNS of Russia, is not beyond provision of the data on the income gained by the taxpayer (both considered, and which are not considered) and their sources, and also the made expenses which are objects of tax accounting according to article 313 of the Code. Based on the line item stated above, FNS of Russia does not see violations of the rights and legitimate interests of both the applicant, and the uncertain group of people, in the field of business activity.

In additional explanations in the matter of FNS of Russia specifies also possible adverse effects in case of satisfaction of the requirement of society as in case of recognition of Item 2 of the Order not to relevant requirements of the Code the form of the tax declaration for representation during the accounting periods of 2011 will not be determined that will entail impossibility of realization by taxpayers of the rights and obligations on submission of tax statements, and also will exclude holding tax control measures by tax authorities.

Having listened to agents of the parties, having studied and having estimated the evidence produced by the parties, the court established the following.

According to Item 1 of Article 192 of the Arbitral Procedure Code of the Russian Federation citizens, the organizations and other persons have the right to appeal to Arbitration Court with the statement for recognition invalid the regulatory legal act accepted by state body, local government body, other body, the official if believe that the disputed regulatory legal act or its separate provisions do not correspond to the law or other regulatory legal act having big legal force and violate their rights and legitimate interests in the field of business and other economic activity, illegally assign to them any obligations or create other obstacles for implementation of business and other economic activity.

By consideration of such category put Arbitration Court performs check challenged the act or its separate provision, establishes compliance to its Federal constitutional Law, Federal Law and other regulatory legal act having big legal force, and also powers of body or person who adopted the disputed regulatory legal act.

The order of the Federal Tax Service of 15.12.2010 of N MMB-7-3/730 @, registered in the Ministry of Justice of the Russian Federation 02.02.2011 for N 19680, approved form and format of the tax declaration on the income tax of the organizations, and also procedure for its filling (appendices N 1 - 4 of the Order). The disputed Order is published in "The Russian newspaper" 18.02.2011 and is applied, as appears from Item 2, since submission of the tax declaration on the income tax of the organizations for tax period of 2010.

In case of the publication of the called act of FNS of Russia was effective within powers, stipulated in Item 2 articles 80 of the Code. At the same time the Order which approved new form of the declaration and establishing procedure for its filling is regulatory legal act on the questions connected with the taxation, therefore the general requirements established by articles 4 and 5 of the Code extend to it. The court considers reasonable argument of society about violation of FNS of Russia of procedure for enforcement of this Order.

General rules of publication and entry into force of regulatory legal acts of federal executive bodies are established by the Presidential decree of the Russian Federation of 23.05.1996 N 763 "About procedure for publication and entry into force of acts of the President of the Russian Federation, the Government of the Russian Federation and regulatory legal acts of federal executive bodies" according to which the called legal acts become effective after ten days after day of their official publication if acts do not establish other procedure for their introduction in force.

At the same time action in time of acts of the legislation on taxes and fees, and also owing to Item 5 of article 5 of the Code and regulatory legal acts on taxes and fees of federal executive bodies is regulated by the specified article of the Code. Such acts establishing the new taxes and (or) charges raising the tax rates, the amount of charges establishing or aggravating responsibility for violation of the legislation on taxes and fees, establishing new obligations or other body no the worsening situation of taxpayers or payers of charges, and also other participants of the relations regulated by the legislation on taxes and fees, retroactive force have (Item 2 of article 5 of the Code).

In view of that the disputed Order for income tax payers of the organizations fixes obligation on submission of the tax declaration in new form including in electronic form, and also it is provided, in the presence of the corresponding bases, need of filling of appendix N 4, absent earlier, such regulatory legal act cannot become effective with violation of procedure, stipulated in Item 2 articles 5 of the Code, that is with its distribution on the legal relationship which arose about day of official publication. In the case under consideration distribution of obligation on submission of the declaration in the new form establishing need of disclosure of additional data on the amounts of the income which is not considered in case of determination of tax base, and the expenses considered for the purposes of the taxation by separate categories of taxpayers on declaring for the tax period which terminated at the time of publication of the Order court recognizes as violation of the Code established by Item 2 of Article 5 of the principle of inadmissibility of giving of retroactive effect to the acts of the legislation on taxes and fees establishing new obligations or otherwise worsening situation of taxpayers.

Taking into account the Order of FNS of Russia stated Item 2 of 15.12.2010 N MMB-7-3/730 @, extended operation of the act to submission of the declaration for 2010, does not correspond to the Code and is subject to recognition by invalid.

Based on the specified line item of court, this Order is subject to application since submission of the tax declaration for reporting (tax) the periods of 2011. The court cannot agree with approval of society that the Order shall become effective only from 01.01.2012. The considered act concerns regulation of the relations connected with tax control in this connection the provisions of Item 1 of article 5 of the Code determining procedure for entry into force of acts of the legislation on taxes (which the acts establishing new taxes or changing taxation elements on already imposed taxes are among: taxation object, tax base, tax period, tax rate, procedure for calculation of tax, procedure and payment due dates of tax), to procedure for enforcement of the Order are not subject to application.

The declaration represents only external submission of data on the taxation objects, about the gained income and the made expenses, about sources of the income, about tax base, tax benefits, about the estimated tax amount and (or) about other data forming the basis for calculation and the tax discharge. Establishment of new form of the declaration cannot be considered as change of procedure for calculation of tax as the last is determined not by form of the declaration, but relevant provisions of the Code, and also regulatory legal acts of subjects of the Russian Federation and municipalities adopted according to it about taxes and fees regulating procedure for calculation, and also other elements of the taxation on separate taxes.

In view of lack of special rules in article 5 of the Code the disputed Order becomes effective according to the procedure, established by the Presidential decree of the Russian Federation of 23.05.1996 N 763 "About procedure for publication and entry into force of acts of the President of the Russian Federation, the Government of the Russian Federation and regulatory legal acts of federal executive bodies". As the disputed regulatory legal act is published by 18.02. 2011, that, therefore, its action extends to the declaring represented for reporting (tax) the periods which terminated after 28.02.2011.

The requirement of society about recognition invalid the appendices N 4 to the Order of FNS of Russia of N MMB-7-3/730 @ is not subject of 15.12.2010 to satisfaction on the following bases.

By Item 1 of article 80 of the Code it is determined that the tax declaration represents the written application about the taxation objects, about the gained income and the made expenses, about sources of the income, about tax base, tax benefits, about the estimated tax amount and (or) about other data forming the basis for calculation and the tax discharge.

Thus, the tax declaration may contain not only information which is directly used by the taxpayer in case of calculation of tax what draws society on, but also other data characterizing activities of the taxpayer and allowing tax authorities to perform necessary tax control measures.

In the appendix N 4 to the Order need of reflection by taxpayers is provided, in case of their availability, the income which is not considered in case of determination of tax base, and also the expenses considered for the purposes of the taxation by separate categories of taxpayers. The list of the specified income and expenses will be approved with provisions of Chapter 25 of the Code establishing procedure for calculation of the income tax of the organizations and does not go beyond that income and expenses which are used by taxpayers in case of determination of the size of their tax liability and are excluded in case of calculation of tax.

The court does not see contradictions of the appendix N 4 to procedure for conducting the tax accounting determined by Chapter 25 of the Code.

According to article 313 of the Code tax accounting represents system of generalization of information for determination of tax base on tax on the basis of these source documents grouped according to the procedure provided by the Code. At the same time tax accounting is performed not only for the purposes of forming of complete and reliable information about accounting treatment for the purposes of the taxation of the economic activities performed by the taxpayer during the accounting (tax) period but also for providing internal and external users with information for control of correctness of calculation, completeness and timeliness of calculation and payment in the budget of tax.

Considering that in case of the edition of the disputed regulatory legal act of FNS of Russia was effective within the competence, introduction in structure of the tax declaration on the income tax of the organizations of the appendix N 4 is made according to requirements of Chapter 25 of the Code, directed to realization of powers of the tax authorities established by articles 31 and 32 of the Code and does not violate the rights and legitimate interests of taxpayers, the statement of society in this part is not subject to satisfaction.

Thus, the appendix N 4 to procedure for filling of the tax declaration on the income tax of the organizations approved by the Order of FNS of Russia of 15.12.2010 of N MMB-73/730 @ corresponds to Code provisions.

According to Article 110 of the Arbitral Procedure Code of the Russian Federation the court costs incurred by society in the form of the paid state fee in the amount of 2 000 rubles are subject to collection with FNS of Russia. Being guided by Articles 167 - 170, 176, 195 Arbitral Procedure Codes of the Russian Federation, the Supreme Arbitration Court of the Russian Federation

solved:

recognize Item 2 of the Order of the Federal Tax Service of 15.12.2010 of N MMB-73/730 @ "About approval of form and format of the tax declaration on the income tax of the organizations, the Procedure for its filling" not to relevant provisions of the Tax Code of the Russian Federation and invalid.

Recognize the appendix N 4 to procedure for filling of the tax declaration on the income tax of the organizations approved by the Order of the Federal Tax Service of 15.12.2010 of N MMB-7-3/730 @ corresponding to the Tax Code of the Russian Federation.

In satisfaction of the declared requirement of Agency of Tax Attorneys limited liability company to refuse the specified part.

Collect from the Federal Tax Service for benefit of Agency of Tax Attorneys limited liability company court costs in the amount of 2 000 (two thousand) rubles.

Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info