RESOLUTION OF THE PLENUM OF THE SUPREME ARBITRATION COURT OF THE RUSSIAN FEDERATION

of July 30, 2013 No. 57

About some questions arising in case of application of part one of the Tax Code of the Russian Federation by Arbitration Courts

Due to the questions arising in court practice and for the purpose of ensuring the uniform approaches to the dispute resolution connected using provisions of part one of the Tax Code of the Russian Federation (further - the Tax Code of the Russian Federation, the Code), the Plenum of the Supreme Arbitration Court of the Russian Federation based on article 13 of the Federal constitutional Law "About Arbitration Courts in the Russian Federation" decides to give to Arbitration Courts (further - courts) the following explanations.

Participants of the legal relationship regulated by the legislation on taxes and fees

1. Owing to article 24 Tax Code of the Russian Federation the tax agent shall transfer the tax amount withheld in accordance with the established procedure from the money paid to the taxpayer into the relevant budget.

In that case when money payments in this tax period to the taxpayer were not made and deduction of tax amount was impossible, the tax agent based on the subitem 2 of Item 3 of article 24 of the Code shall estimate only the tax amount which is subject to payment by the taxpayer and report in tax authority about impossibility to hold tax and outstanding amount of the corresponding taxpayer.

2. According to item 4 of article 24 Tax Code of the Russian Federation tax agents list the taxes withheld at the taxpayer according to the procedure, provided by the Code for the tax discharge by the taxpayer.

At the same time the subitem 5 of Item 3 of article 45 Tax Code of the Russian Federation corresponding to the called regulation provides that if the obligation on calculation and tax withholding from money of the taxpayer is assigned according to the Code to the tax agent, the obligation on the tax discharge is considered performed by the taxpayer from the date of deduction of tax amounts by the tax agent.

In view of the given provisions determining nature of obligations of the tax agent it must be kept in mind that he transfers tax amount which obligation on payment lies on the taxpayer into the budget.

With respect thereto in case of application to the tax agent of provisions of Items 1 and 9 of article 46 Tax Code of the Russian Federation courts should consider the following.

If from regulations of part two of the Code special rules (for example, from Item 2 of article 231 of the Code), forced fulfillment of duties of the tax agent by collection from it not transferred tax amounts, and also the corresponding amounts of penalty fee perhaps do not follow in this respect in case the tax amount was withheld by the tax agent at the taxpayer, but is not transferred into the budget.

At the same time, considering compensation nature of penalty fee as the payment directed to compensation of losses of the state treasury as a result of failure to pay tax in time penalty fee from the moment when the tax them be withheld and transferred into the budget, before the time in which the duty on the tax discharge shall be fulfilled by the taxpayer independently following the results of the corresponding tax period can be collected from the tax agent who did not hold tax from money of the taxpayer.

Besides, the specified recommendations of impossibility of collection from the tax agent of the tax amount which is not withheld by it and about restriction of the period of collection of penalty fee, based that the obliged person continues to remain the taxpayer (the subitem 5 of Item 3 of Article 45) to which the relevant requirement about the tax discharge shall be imposed by tax authority are not applicable in case of payment of money to the foreign person in connection with not accounting of this person in the Russian tax authorities and impossibility of its tax administration. Therefore, in case of not tax withholding in case of payment of money to the foreign person both the tax, and the penalty fee charged until discharge of duty on the tax discharge can be collected from the tax agent.

3. In sense of Chapter 4 of the Tax Code of the Russian Federation, including Item 1 of Article 26, subject of tax legal relationship is the taxpayer irrespective of whether personally he participates in this legal relationship or through the legal or authorized representative.

With respect thereto in case of the solution of question of involvement of the taxpayer to responsibility for this or that violation of the law on taxes and fees of action (failure to act) of his representative are regarded as actions (failure to act) of the taxpayer.

For improper execution of the obligations assigned to it in the field of the taxation the legal or authorized representative answers to the principal by rules according to civil, the family or labor law.

4. Owing to paragraph one of Item 3 of article 29 Tax Code of the Russian Federation the authorized representative of the taxpayer - the organization performs the powers based on the power of attorney issued according to the procedure, established by the civil legislation of the Russian Federation if other is not provided by the Code.

In particular, the exception of the provided general rule is stipulated in Item 4 articles 29 Tax Code of the Russian Federation according to which the responsible member of the consolidated group of taxpayers is the authorized representative of all members of the consolidated group of taxpayers based on the law.

At the same time the trust management agreement is not good legal basis for representation to trustees of interests of the founder of management in the field of the taxation. Appropriate authority of the managing director shall be drawn up taking into account requirements of Item 3 of article 29 Tax Code of the Russian Federation.

However courts need to mean that the trustee does not need the power of attorney on accomplishment of the obligations which are directly assigned to it by Code part two provisions (for example, Article 174. 1, 214.1, 214.4, 275, etc.).

The authorized representative of the taxpayer - physical person performs the powers based on notarially certified power of attorney or the power of attorney equated to the Russian Federation (paragraph two of Item 3 of article 29 Tax Code of the Russian Federation) which is notarially certified according to the civil legislation. These provisions extend as well to the physical persons who are individual entrepreneurs.

5. According to Item 1 of article 56 Tax Code of the Russian Federation privileges on taxes and fees benefits, provided separate categories of taxpayers and payers of charges stipulated by the legislation about taxes and fees, in comparison with other taxpayers or payers of charges, including opportunity not to pay tax or collection or to pay them in smaller size are recognized.

Owing to Item 2 of this Article the taxpayer has the right to refuse use of tax benefit or to suspend its use on one or several tax periods if other is not provided by the Code.

In case of application of article 56 Tax Code of the Russian Federation in case of dispute on whether the refusal of the taxpayer of use of privilege took place, it is necessary to recognize that the fact of not accounting by the taxpayer of tax benefit in case of creation of the declaration for specific tax period in itself does not mean its refusal of use of the corresponding tax benefit in this period.

Therefore the taxpayer can realize the right to the tax benefit which is not used in the previous tax periods by submission of the specified tax declaration, the statement within conducting exit tax audit (regarding the privileges concerning subject performed and to the checked tax period) or statements in tax authority in case of the tax discharge based on the tax notification.

6. According to requirements of article 84 Tax Code of the Russian Federation in case of change of the location of the organization and its removal with respect thereto from accounting in tax authority in the place of former stay statement of this organization on accounting in tax authority in the new location is performed based on the documents received from tax authority still to the location.

In view of provisions of article 30 Tax Code of the Russian Federation according to which tax authorities constitute single centralized system of control of compliance with law about taxes and fees courts need to recognize that change of the place of accounting of the taxpayer in itself does not influence condition of its legal relationship with tax authorities. Therefore according to the tax declarations submitted earlier and not considered, statements (for example, according to the declaration in which the value added tax is declared to compensation according to the statement for return of excessively paid amounts of tax, according to the statement for provision of delay or payment by installments on the tax discharge, etc.) the tax authority still shall pass to the place of accounting of the corresponding taxpayer decisions in essence, and also make the necessary actions connected with acceptance and execution of these decisions.

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