ON BEHALF OF THE RUSSIAN FEDERATION
DECISION OF THE SUPREME ARBITRATION COURT OF THE RUSSIAN FEDERATION

of August 2, 2013 No. BAC-6446/13

About recognition of the second offer of the subitem 5 of Item 28 of Bases of pricing in the field of regulated prices (rates) in power industry, утв. Order of the Government of the Russian Federation of 29.12.2011 No. 1178, not corresponding to article 1 of the Civil Code of the Russian Federation, articles 6 and 23 of the Federal Law of 26.06.2003 No. 35-FZ

The substantive provisions of the decision are announced on July 29, 2013

The complete text of the decision is made on August 2, 2013

The Supreme Arbitration Court of the Russian Federation as a part of the chief judge Kireykova G. G., judges Samuylov S. V. and Shilokhvost O. Yu. in case of taking the minutes of judicial session by the assistant judge by Suleymanovy M. B., considered 29.07.2013 in proceeding in open court the application of District Power Networks limited liability company for recognition of the subitem 5 of Item 28 of Bases of pricing in the field of regulated prices (rates) in power industry approved by the order of the Government of the Russian Federation of 29.12.2011 No. 1178, not to the relevant articles 1, of 421, of 424, of 606, 654 Civil codes of the Russian Federation, to Articles 6, 23 Federal Laws of 26.03.2003 No. 35-FZ "About power industry", parts 2 of article 1 of the Federal Law of 26.07.2006 No. 135-FZ "About protection of the competition", to the Federal Law of 21.11.1996 No. 129-FZ "About financial accounting", to articles 253 and 264 of the Tax Code of the Russian Federation and invalid.

Took part in judicial session:

from the Government of the Russian Federation on behalf of Federal Tariff Service according to the order of 10.06.2013 No. SP-P9-3898 (further - Federal Tariff Service): Barinov E. V. by proxy of 01.10.2012 No. 10/13; D. I. Poor people by proxy of 17.04.2013 No. DB/13; Metsayev B. K. by proxy of 16.08.2012 No. 8/13; Stepanenko I. G. by proxy of 24.10.2012 No. 12/13.

The District Power Networks limited liability company of the representative did not send to judicial session and asked to consider case in its absence.

The court established:

District Power Networks limited liability company (Tynda; further - society) appealed to the Supreme Arbitration Court of the Russian Federation with the statement for recognition of the subitem 5 of Item 28 of Bases of pricing in the field of regulated prices (rates) in power industry approved by the order of the Government of the Russian Federation of 29.12.2011 No. 1178 (further - pricing Bases), not to the relevant articles 1, of 421, of 424, of 606, 654 Civil codes of the Russian Federation, to Articles 6, 23 Federal Laws of 26.03.2003 No. 35-FZ "About power industry" (further - the Law on power industry), parts 2 of article 1 of the Federal Law of 26.07.2006 No. 135-FZ "About protection of the competition" (further - the Competition act), to the Federal Law of 21.11.1996 No. 129-FZ "About financial accounting" (further - the Law on financial accounting), to articles 253 and 264 of the Tax Code of the Russian Federation and invalid (taking into account written amendments 21.06.2013 and amendments of 05.07.2013 to the statement).

According to the subitem 5 of Item 28 of Bases of pricing the structure of other expenses which are considered in case of determination of necessary gross revenue (further - NVV) joins payment for ownership and (or) use of property, including payments in the federal budget for use of the property which is in federal property, except for the costs connected with lease of the objects of electric grid economy which are not relating to single national (all-Russian) power network if the owner of objects of electric grid economy is the single consumer of the services in transfer of electrical energy rendered with use of the specified objects of electric grid economy and also if the specified objects are considered in base of the invested capital of the other network organizations. Rent expenses are determined by regulating authority proceeding from the size of depreciation and the property tax relating to leasable property.

The applicant believes that the last offer of the given Item without the bases established by the legislation limits the right of the lessee to inclusion of rent expenses in structure of the other expenses considered in case of determination of NVV in that part in which the specified regulation does not provide accounting as a part of these expenses of other taxes paid by owners of property, of obligatory payments, the costs relating on product cost for the lessor, profits of the lessee and also completely excludes part of the rent constituting the income of the lessor. Society considers that having set such restrictions in the absence of the regulation of the Federal Law allowing it, the Government of the Russian Federation exceeded the authority. Besides, it assigned not stipulated by the legislation obligation to the lessor to allocate the amount of the depreciation charges as a part of the rent and the property tax that in the absence of such separation deprives of the lessee of opportunity to consider and these amounts as a part of expenses. According to the applicant, the disputed regulation contradicts Articles 1, of 2, of 421, of 424, of 606, 654 Civil codes of the Russian Federation, to articles 6 and 23 of the Law on power industry, requirements of financial accounting and the tax legislation to the list of expenses of the organization and their registration.

Society specifies that restriction of the amount of the rent and need of allocation of depreciation expenses and the property tax interferes with realization of powers of local government bodies according to the conclusion of lease agreements of municipal property and determination of the amount of the rent which are stipulated in Item the 10th article 35 of the Federal Law of 06.10.2003 No. 131-FZ "About the general principles of the organization of local self-government in the Russian Federation" and regulations of municipalities.

Besides, society believes that the subitem 5 of Item 28 of Bases of pricing attracts origin at the regulated organizations - lessees of the expenses which are not covered by rate when implementing business activity, including on transfer of electrical energy that creates premises for emergence of signs of bankruptcy and liquidation of such organizations. The applicant considers that the regulation is directed to "elimination of the subject of business activity" and limits the competition that contradicts Item 2 of Article 1 of the Competition act.

In response and amendments of Federal Tariff Service to it considers arguments of society insolvent, and the regulation disputed by it - corresponding to the law and other regulations having big legal force.

The Federal Tariff Service specifies that Item 1 of article 24 of the Law on power industry the Government of the Russian Federation is given authority according to pricing Bases. The regulation disputed by society does not contradict provisions of the Civil code of the Russian Federation, the Law on power industry and the Marine life protection act of the competition to which the applicant refers. According to the interested person, the decision on need of expense determination on lease in the amount provided by the subitem 5 of Item 28 pricing Bases corresponds to the principles of state regulation of rates in the field of power industry, including to the principles of ensuring economic justification of costs of the commercial organizations for production, transfer and sale of electrical energy, and also respect for balance of interests of suppliers and consumers of electrical energy.

Introduction of the disputed regulation is caused by the revealed abuses connected with transfer by owners whose core activity is not sale and transfer of electrical energy, the objects of electric grid economy which are available for them on balance of lease to the network organizations for the purpose of release from expense burden for content and repair of such equipment, on payment of losses, matching and certification of personnel, emergency servicing and assignment of such expenses on the regulated organizations. As a result of the conclusion of lease agreements maintenance costs of objects of electric grid economy were considered in rates for services in transfer of electrical energy, increase in the price (rate) for electrical energy for the final consumer was consequence of what. Thus, owners not only did not incur the called expenses, but also gained additional income in the form of part of the rent which additional financial burden laid down on consumers of the region.

The interested person considers references of society to provisions of the invalid Law on financial accounting insolvent. According to Federal Tariff Service, Chapter 25 of the Tax Code of the Russian Federation and Bases of pricing regulate different spheres of the relations in this connection the disputed regulation cannot contradict articles 253 and 264 of the called Code. The interested person considers that the applicant did not prove and did not prove contradiction of the disputed regulation to the Federal Law of 06.10.2003 No. 131-FZ "About the general principles of the organization of local self-government in the Russian Federation", and also the fact of violation of the rights and legitimate interests of society.

Having listened to representatives of the Government of the Russian Federation, having studied case papers, the court considers the requirement of society subject to partial satisfaction on the following bases.

According to the powers conferred by paragraph one of Item 1 of article 24 of the Law on power industry, the order of the Government of the Russian Federation of 29.12.2011 No. 1178 the pricing Bases determining the principles and methods of calculation of the prices (rates) in power industry, including criterion for evaluation of economic justification of the costs included in the specified prices (rates), and determinations of level of profitability of the invested capital used in fields of activity of subjects of power industry in which state regulation of the prices (rates), accounting treatment for results of activities of subjects of power industry is applied following the results of work for the period of action of earlier approved prices (rates), features of determination of the prices (rates) for electrical energy (capacity) delivered to buyers in technologically isolated territorial power systems are approved.

The text of Bases of pricing is published in the printing edition "Russian Federation Code" of 23.01.2012 No. 4, by Art. 504.

Item 28 of Bases of pricing provides the list (structure) of other expenses which are considered in case of determination of NVV on the basis of which regulated prices (rates) are calculated. Subitem 5 of the called Item to such expenses carries payment for ownership and (or) use of property, including payments in the federal budget for use of the property which is in federal property, except for the costs connected with lease of the objects of electric grid economy which are not relating to single national (all-Russian) power network if the owner of objects of electric grid economy is the single consumer of the services in transfer of electrical energy rendered with use of the specified objects of electric grid economy and also if the specified objects are considered in base of the invested capital of the other network organizations.

In the second offer of the provided subitem rent expenses are determined in volume of the size of depreciation and the property tax relating to leasable property.

Society is the territorial network organization and performs transfer of electrical energy in the Amur region with use including leased property: power lines, non-residential premises, the parcels of land, garages, vehicles which are in municipal property, property of legal entities and physical persons.

Provisions of the subitem 5 of Item 28 of Bases of pricing are applied by regulating authority in case of tariff regulation for 2012. The order of Management of state regulation of the prices and rates of the Amur region No. 76-pr/e makes of 31.05.2012 changes to the order of the called regulating authority of 20.12.2011 No. 236-pr/e, the societies connected with reduction of the NVV size because of exception of the rent expenses which are not provided by the disputed regulation.

Thus, the argument of Federal Tariff Service that society did not prove violation by the disputed regulation of its rights and legitimate interests is insolvent.

Society considers that, having set restrictions of the amount of the rent included in NVV in the absence of the regulation of the Federal Law allowing it, the Government of the Russian Federation exceeded the authority.

Meanwhile such powers of the Government of the Russian Federation follow from the powers provided by paragraph one of Item 1 of article 24 of the Law on power industry to determine the principles and methods of calculation of the prices (rates) in power industry, including criterion for evaluation of economic justification of the costs included in the specified prices (rates).

Having determined in the subitem 5 of Item 28 of Bases of pricing the rent amount which is subject to inclusion in NVV in type of tax on property and the depreciation charges, the Government actually excluded part of the rent constituting actually the income of the lessor from property leasing from other expenses. The exception of this part of the rent is caused by application of stipulated in Item 1 article 6 of the Law on power industry of the principle of respect for the balance of economic interests of suppliers and consumers of electrical energy which is not allowing assignment on final consumers in addition to expenses which the owner on content and operation of property, expenses of the network organization for payment to this owner of lease revenue of property, and also stipulated in Item 2 articles 23 of this Law of the principle of the ensuring economic justification of costs of the commercial organizations for production, transfer and sale of electrical energy excluding inclusion in costs nothing of the caused or overestimated expenses, including in the form of the rent exceeding expenses of the owner on content of the leased property, and also taxes and the obligatory payments connected with ownership of this property shall bear.

Regulation by the subitem 5 of Item 28 of Bases of pricing of structure of the expenses included in NVV connected with lease of property does not contradict regulations of the Civil code of the Russian Federation on lease and articles 421 and 424 of the Code as does not limit the conclusion to the regulated organizations with owners of lease agreements and determination by the parties of such agreement of the amount of payment for use and ownership of property. Execution by the lessee of obligations on payment of the lease payments which are not provided with compensation included in NVV based on the disputed expense rate as a part of rate, belongs to the risks connected with implementation by person of business activity which determination of concept contains in Item 2 of Article 2 of the Civil code of the Russian Federation. In this regard provisions of Articles 421 and 424 of the Civil code of the Russian Federation give to lease agreement parties opportunity to determine the amount of the rent which is the most equitable to interests of the parties taking into account provisions of the disputed regulation.

Taking into account stated the court rejects also argument of society about contradiction of regulation of the subitem 5 of Item 28 of Bases of pricing to Item 10 of article 35 of the Federal Law of 06.10.2003 No. 131-FZ "About the general principles of the organization of local self-government in the Russian Federation" and to the regulations of municipalities determining the amount of the rent concerning the property which is in municipal property.

Society refers to the fact that in situation when the lessor does not allocate by law the amount of the depreciation charges as a part of the rent and the property tax, for lack of such separation the lessee loses opportunity to consider these amounts as a part of expenses. Meanwhile application of provisions of the disputed regulation in such situations is not excluded. Moreover, lack of information on the amount of the depreciation charges and the property tax does not exempt regulating authority from obligation to request it at local government bodies, the other persons possessing this information and also to determine their size, using the pricings conferred to it by Bases powers (in particular, Item 29). Check of legitimacy of the decision of regulating authority is beyond this case and is performed in separate procedure.

The court cannot agree with opinion of the applicant that the disputed regulation does not correspond to Item 6 of article 8 of the Law on financial accounting as the called Law ceased to be valid.

The argument of society about orientation of the regulation provided by the subitem 5 of Item 28 of Bases of pricing on elimination of the subject of business activity and restriction of the competition contradicting Item 2 of Article 1 of the Competition act is not confirmed with the proofs having signs of reliability and admissibility.

At the same time statement of the applicant that the expenses listed in the second offer of the subitem 5 of Item 28 of Bases of pricing do not compensate included in the rent other taxes and obligatory payments paid by owners of property deserves attention.

According to provisions of the Tax Code of the Russian Federation owners depending on type of the property belonging to it pay, except the property tax, also land and transport taxes. Article 16 of the Federal Law of 10.01.2002 No. 7-FZ "About environmental protection" provides payment for negative impact on the environment. Meanwhile owing to the disputed regulation the specified and other obligatory payments of owners - lessors, connected with ownership of property, are not subject to inclusion in the expenses considered when forming NVV.

Other list of expenses on the rent is provided by the Government of the Russian Federation in Item 45 of the Bases of pricing in the field of heat supply approved by the order of the Government of the Russian Federation of 22.10.2012 No. 1075, and in Item 44 of Bases of pricing in the field of the water supply and water disposal approved by the order of the Government of the Russian Federation of 13.05.2013 No. 406, according to which economically reasonable level of the rent is determined by regulating authorities proceeding from the principle of compensation to the lessor of depreciation, the property taxes and the earth and other obligatory payments established by the legislation of the Russian Federation connected with ownership of the property leased.

In amendment to withdrawal of Federal Tariff Service specifies that regulation in power industry, heat supply and in the field of services of water supply and water disposal is performed with use of identical methods of state regulation. Opinion of representatives of the interested person that the property tax provided in the second offer of the subitem 5 of Item 28 of Bases of pricing should be interpreted broadly, including in it other taxes and obligatory payments connected with ownership of property does not follow from literal and system interpretation of the disputed regulation. Moreover, literal interpretation is used by regulating authority of the Amur region in case of approval of rates that it is seen from the letters of this body provided to Federal Tariff Service.

The specified condition of the second offer of the subitem 5 of Item 28 of Bases of pricing contradicts Item 1 of Article 1 of the Civil code of the Russian Federation in the part determining inadmissibility of unreasonable restriction of the right of the regulated organizations to compensation as a part of expenses of the called obligatory payments and taxes and also to the provisions of Item 1 of Article 6 and Item 2 of article 23 of the Law on power industry providing respect for balance of economic interests of suppliers and consumers of electrical energy and ensuring economic justification of costs of the commercial organizations for production, transfer and sale of electrical energy. In this part the statement of society is reasonable.

In amendment to the statement of 21.06.2013 society unreasonably carries to number of the taxes which are subject to inclusion in expenses as a part of the rent, the value added tax, income tax and the income tax. Payment of the called taxes in the cases given by the applicant is connected not with the fact of ownership of this property, and with availability of the income from its delivery in lease.

According to part 5 of Article 195 of the Arbitral Procedure Code of the Russian Federation the regulatory legal act or its separate provisions recognized by Arbitration Court invalid are not subject to application from the moment of the introduction in legal force of the judgment and shall be given by the body or person who adopted the disputed act to compliance with the law or other regulatory legal act having big legal force.

Being guided by Articles 167 - 168, 176, 180, 195 Arbitral Procedure Codes of the Russian Federation, the Supreme Arbitration Court of the Russian Federation

solved:

recognize the second offer of the subitem 5 of Item 28 of Bases of pricing in the field of regulated prices (rates) in power industry approved by the order of the Government of the Russian Federation of 29.12.2011 No. 1178, in the part which is not providing inclusion in structure of the other expenses considered in case of determination of necessary gross revenue, others, except the property tax, taxes and the established legislation of the Russian Federation of other obligatory payments connected with the ownership of the property leased, which is not corresponding to Article 1 of the Civil code of the Russian Federation, Articles 6, 23 Federal Laws of 26.03.2003 No. 35-FZ "About power industry" and invalid.

The decision takes legal effect immediately after its acceptance, but can be reviewed by the Supreme Arbitration Court of the Russian Federation according to the procedure of supervision according to the application submitted within three months from the moment of its introduction to legal force.

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