Tax law. Theoretical foundations of the tax law of the Russian Federation Tax law of Russia: concept, subject and methods of legal regulation

As a manuscript

Krivykh Irina Anatolyevna SOURCES OF TAX LAW OF THE RUSSIAN FEDERATION:

concept, problems of CLASSIFICATION, basic principles of action Specialty 12.00.14 – administrative law;

financial right;

Yekaterinburg 2009

The work was carried out at the Department of Financial Law of the State Educational Institution of Higher Professional Education "Ural State Law Academy" Supervisor - Doctor of Law, Professor Danil Vladimirovich Vinnitsky

Official opponents: Doctor of Law, Professor Gracheva Elena Yurievna, Candidate of Law Bryzgalin Arkadiy Viktorovich Moscow State University M. V. Lomonosov

The defense will take place "" 2009 in hours minutes at a meeting of the dissertation council D 212.282.02 at the Ural State Law Academy at the address: 620066, Yekaterinburg, st. Komsomolskaya, d.

The dissertation can be found in the scientific library of the Ural State Law Academy at the address: Yekaterinburg, st. Komsomolskaya, d. Abstract sent out "" 200

Scientific Secretary of the Dissertation Council Doctor of Law, Professor S. Yu. Golovina general characteristics work Relevance research topics. During the last decades in Russian Federation radios, cardinal changes took place in the economy, which led to the formation in the country of a fundamentally new tax system. In order for this system to be effective, adequate legal regulation is necessary in accordance with the norms agreed upon among themselves, enshrined in various tax and legal sources.

The current Tax Code of the Russian Federation (TC RF) fixed the basic principles of taxation, determined the composition of the legislation on taxes and fees, the priority of international treaties over the norms of national legislation on taxes and fees. Nevertheless, the regulation of tax relations needs further improvement. This is dictated, in particular, by the fact that the list of sources of tax law at the legislative level remains not clearly defined, the problems of their classification are not fully developed in scientific terms, and the principles of their operation are often interpreted in very different ways in law enforcement practice.

At the present stage, decisions of international courts (in particular, the European Court of Human Rights), decisions and rulings of the Constitutional Court of the Russian Federation, decisions of the Plenums of the Supreme Arbitration Court and the Supreme Court of the Russian Federation are essential for the regulation of tax relations. It seems that there is a need for an additional analysis of the legal nature of these legal acts in the context of the problems of the formation of the system of sources of tax law in Russia.

The interpretation of tax legal norms often causes intractable disputes, which emphasizes the importance of official clarifications from financial and tax authorities for regulating tax relations. Practice shows that sometimes these explanations are intended for specific taxpayers, and sometimes they are considered suitable for an indefinite circle of persons and are subsequently published in various printed and electronic publications, having a significant impact on the actions and decisions of business entities related to the procedure for calculating and paying tax. logs. It seems that in the framework of the theory of sources tax law this issue cannot be ignored.

However, the legislator granted the tax authorities the right to approve certain forms of law enforcement and other acts used by them in the exercise of control functions. Practice shows that granting such a right may conflict with general legislative approaches to the issue of separating the functions of legal regulation and control in the field of taxes and fees.

Taking into account the noted circumstances, the study of theoretical and practical issues formation of the system of sources of tax law of the Russian Federation is not only relevant, but also necessary.

Goals and tasks dissertation work. The purpose of this study is a comprehensive analysis of the key problems of the formation of the system of sources of tax law in the Russian Federation, the formulation of definitions of the concepts used, the development of a classification of tax and legal sources, and an analysis of the basic principles of their operation.

To achieve this goal, the following tasks were defined:

based on the generalization of the achievements of modern legal science, to determine the range of sources of modern Russian tax law, focusing on debatable questions and searching for answers to them;

carry out a comprehensive analysis of the system of sources of Russian tax law, determine its elements and propose a classification of these sources;

identify the role of decisions of international courts (in particular, the European Court of Human Rights), rulings and resolutions of the Constitutional Court of the Russian Federation, resolutions of the Plenums of the Supreme Arbitration Court and the Supreme Court of the Russian Federation in the regulation of tax relations;

install legal nature explanations of the financial and tax authorities in the context of the problems of the formation of the system of sources of tax law in the Russian Federation;

determine the legal limits for the delegation of rule-making powers in the tax sphere from representative authorities to executive bodies;

carry out the classification of international treaties on taxation issues, identify and justify their significance as an element of the system of sources of tax law of the Russian Federation;

to study the general principles of the operation of sources of tax law in Russia in time, space and circle of persons.

The theoretical basis of the study was the works of such Russian scientists of the prerevolutionary period as E. V. Vaskovskii, N. M. Korkunov, K. I. Malyshev, F. V. Taranovsky, G. F. Shershenevich, and I. I. Yanzhul. Monographs, textbooks and articles on the theory of state and law, prepared, in particular, by such authors as:

S. S. Alekseev, A. B. Vengerov, S. L. Zivs, V. M. Korelsky, S. A. Komarov, R. Z. Livshits, V. S. Nersesyants, A. V. Malko, M N. Marchenko, A. V. Mitskevich, V. D. Perevalov, A. S. Pigolkin, Yu. A. Tikhomirov, V. A. Tolstik, and A. F. Shebanov. The authors in the field of financial and tax law, whose works formed the basis of this dissertation research, include K. S. Belsky, A. V. Bryzgalin, D. V. Vinnitsky, G. A. Gadzhiev, O. N. Gorbunov, E. Yu. Grachev, A. V. Demin, S. V. Zapolsky, M. F. Ivliev, M. V. Karasev, Yu. A. Krokhin, M. V. Kustov, I. I Kucherova, N. P. Kucheryavenko, O. A. Nogin, P. S. Pa Tsurkivsky, S. G. Pepelyaev, G. V. Petrov, G. P. Tolstopyatenko, N. I. Khimichev, N. A. Shevelev and many other scientists. Some aspects considered in this paper were studied by scientists in the framework of works on problems of other branches of Russian and international law (D.N. Bakhrakh, V.S. Belykh, S.K. Zagainova, G.V. Ignatenko, S. Yu Marochkin, M. S. Salikov, V. I. Slom, S. V. Chernichenko, V. V. Yarkov).

The degree of development of the research topic. It is difficult to find a work on tax law in Russian legal science that would not, to one degree or another, touch upon the problems of the sources of this area of law. However, many key issues in the theory of the sources of tax law in the Russian Federation are still undeveloped, and comprehensive studies of the identified scientific problems have clearly not been enough. At the same time, it is impossible not to name a number of Ph.D. theses, in which some of the aspects of the chosen topic were previously touched upon and considered. These works, in particular, include the works of: M. V. Andreeva “Action tax legislation in time”, T. A. Bondarenko “The effect of legislative acts on taxes and fees in time, space and circle of persons”, S. A. Notina “Judicial practice in the system of sources of tax law (on the example of the EU and the Russian Federation) ”, S. G. Oleinikova “Sources of tax law of the Russian Federation”, N. I. Chuzhikova “Sources of financial law”. An integrated approach to the issues under study is most clearly expressed in the last two works (this already follows from their titles). However, the work of S. G. Oleinikova is mainly devoted to the analysis of acts of legislation on taxes and fees, and the topic designated by N. I. Chuzhikova predetermined the general consideration of the widest range of issues related to the sources of financial law in Russia as a whole. Thus, despite the fact that Russian scientists have paid some attention to the problems of sources of tax law, a comprehensive study of the issues posed in this work has not been carried out.

The methodological basis of the work is a complex of general scientific methods of cognition and some particular scientific methods.

The dialectical method is the methodological basis of this work and presupposes the comprehensiveness, objectivity and interconnection of the studied phenomena. Along with it, historical-legal, comparative-legal, technical-legal methods, various methods of analysis and generalization of legislation and the practice of its application were used.

Scientific novelty research. The paper formulates the following main propositions, which have scientific novelty and are submitted for defense.

1. The practical and theoretical significance of dividing the sources of tax law into two key groups is substantiated:

1) the main sources of tax law;

2) auxiliary (interpretative, derivative) sources of tax law. The first group of sources is proposed to include a normative legal act and an international treaty on tax issues;

the second one contains the decisions of the Constitutional Court of the Russian Federation containing the legal position on tax issues, the decisions of some international courts (the European Court of Human Rights, the Economic Court of the CIS) and the regulatory clarifications of the competent executive authorities (primarily the Ministry of Finance of the Russian Federation).

2. The dissertation proves the special system-forming role tax code RF in the system of sources of tax law in Russia and various concepts are being studied that suggest the rationale for its priority over other regulatory legal acts on taxes and fees. One of the most difficult is the question of the priority of the Tax Code of the Russian Federation over other federal laws on taxes and fees, which is de facto proclaimed in Art. and 6 of this code. The author gives arguments in favor of the fact that the priority of the codified law over other laws in this case would correspond to the constitutionally significant principle of certainty of taxation. However, such a priority must be normatively sanctioned not only by the codified law itself, but also by an act of higher legal force, for example, a federal constitutional law.

3. The role of non-tax laws containing separate tax and legal norms in the regulation of tax relations is considered. Non-tax laws are understood as laws adopted not in accordance with the Tax Code of the Russian Federation (in the sense of Article 1 of the Code) and, in terms of their goals and content, are not aimed at direct regulation of tax relations defined in Art. 2 codes.

Having established, on the basis of the analysis, significant contradictions in judicial practice regarding the application tax regulations contained in non-tax laws (the results of the analysis are summarized in comparative table No. 10 attached to the dissertation), the author proves the need to ensure the relative autonomy of the legislation on taxes and fees, since the “dispersion” of tax and legal norms in legislative acts of various sectoral affiliations destroys the unity of the mechanism of tax and legal regulation does not correspond to the principle of certainty of taxation and, ultimately, may lead to a violation of the rights and freedoms of taxpayers.

4. The appendices to the dissertation (comparative tables No. 7, 8 and 9) systematize specific legal positions on tax issues contained in the decisions of the Constitutional Court of the Russian Federation and the European Court of Human Rights. On the basis of this systematization, it is proved that the legal provisions expressed in these legal positions, having the necessary normativity and binding nature, from an essential point of view, cannot be explained only as a result of the interpretation of a separate norm of the Constitution of the Russian Federation or the corresponding international convention. As a result of the analysis of the circumstances of a particular tax case, the applicable provisions of the tax legislation, as well as the systematic interpretation of the norms of the Constitution of the Russian Federation (the corresponding international convention), a new, unique legal provision appears, the legal significance of which should be reflected in the construction of a theoretical model of the system of sources of tax law in Russia.

5. The paper presents arguments in favor of fixing the status of sources of tax law behind the decisions of the Plenums of the Supreme Arbitration Court of the Russian Federation and the Supreme Court of the Russian Federation in the field of taxation. Despite the debatability of this issue, it is argued that the formal non-bindingness of these acts for executive authorities (in particular, the tax authorities and the Ministry of Finance of the Russian Federation) provokes futile litigation, and can also lead to massive violation of the rights and freedoms of taxpayers who find themselves due to social , economic or legal reasons unable to resort to judicial protection their subjective rights.

6. The dissertation examines the system of international treaties of the Russian Federation containing tax and legal norms. It is proposed to divide international treaties, which are sources of Russian tax law, into six groups:

1) agreements defining the general principles of taxation;

2) agreements on the avoidance of double taxation in respect of taxes on income and property;

3) agreements on avoidance of double taxation in certain areas of the economy (for example, in the field of transport);

5) agreements on cooperation and mutual assistance in matters of compliance with tax laws;

6) non-tax agreements, which, along with other issues, regulate certain issues of tax law.

7. The author argues the thesis that the Fundamentals of Legislation of the Eurasian Economic Community (EurAsEC), including the Fundamentals of Tax Legislation of the Eurasian Economic Community, which are currently being developed, by their legal nature, despite the established features of their adoption, are multilateral international agreements.

Fundamentals of the tax legislation of the EurAsEC in their subject of regulation should determine the general principles of taxation in the member states of the EurAsEC.

8. The paper substantiates that the decisions of supranational bodies (in particular, the decisions of the Interstate Council of the EurAsEC) on tax issues cannot currently be attributed to the sources of the tax law of the Russian Federation, since they cannot be applied directly within the legal system of Russia. Although they are, as a rule, obligatory for the member states of the corresponding international organization, they are executed through the adoption of special internal state regulations or the conclusion of separate international tax treaties. Also, these documents cannot be directly applied by the courts of the Russian Federation, since there is not yet the necessary constitutional legal and other regulatory framework for this.

9. The paper classifies tax regulatory legal acts of executive authorities, identifies areas of tax relations that can be regulated by this type of sources, and also provides criteria for establishing the grounds and limits for delegating rule-making powers in the tax sphere from representative authorities to executive authorities. In particular, the following principles of such delegation of tax lawmaking powers are formulated: 1) delegation of powers in the field of taxes and fees is allowed only if such delegation does not contradict the Constitution (including the concept of "legally established tax");

2) delegation must be carried out in accordance with the norms of the legislation on taxes and fees;

3) regulation by the executive body should be reduced to specifying the established legislative tax norms and cannot contradict or supplement them;

4) the delegating body exercises control over the delegated tax powers, since given authority is retained by him as an element of his tax legal personality;

5) the authority that has received delegated tax powers is not entitled to subdelegate.

they should not entail any legal consequences other than those associated with their invalidity (recognition as invalid). The unequivocal consolidation of this provision at the legislative level will make it possible to most effectively ensure the protection of the violated rights and legitimate interests of taxpayers and other participants in tax relations.

11. The author reveals the functional role of the written explanations of the Ministry of Finance and the Federal Tax Service of Russia (earlier - the Ministry of Taxation of Russia) in the context of the system of sources of tax law. It is proved that in those cases when, in terms of content, these acts (clarifications) have signs of normative legal acts, individual formal violations committed during their publication should not be considered as circumstances that prevent the taxpayer (another interested participant in tax relations) from challenging them. in the manner prescribed for tax regulations of the relevant level. A different approach, according to the author of the dissertation, hinders the effective judicial protection of the rights of taxpayers, when the excess of their competence by executive authorities is essentially accompanied by additional violations of the formal procedures for issuing and publishing legal acts.

Theoretical and practical significance research.

The scientific provisions substantiated in the framework of this dissertation can be taken into account in the further development of the theory of the sources of Russian tax law. The conclusions and suggestions contained in the work can be used to improve the legislation on taxes and fees, namely, some provisions of the first part of the Tax Code of the Russian Federation. Separate recommendations and proposals can be implemented in the preparation of draft resolutions of the Plenums of the Supreme Arbitration Court and the Supreme Court of the Russian Federation on the issues of application of legislation on taxes and fees. The research materials can also be used in the process of teaching courses in financial and tax law, in the preparation teaching aids, educational methodical complexes and tax issues.

Approbation of results research. The dissertation was prepared at the Department of Financial Law of the Ural State Law Academy, where it was reviewed and discussed. The provisions of the work were used by the author when carrying out practical exercises, reading lectures on courses of financial and tax law. The provisions of the dissertation were used in the preparation of scientific publications and reports made, in particular, at the following scientific and practical conferences:

All-Russian Scientific and Practical Conference "Constitutional Foundations for the Organization and Functioning of Institutions of Public Power in the Russian Federation" (Yekaterinburg, April 20–21, 2000);

the Fifth International Scientific and Practical Conference “Tax Law in Decisions of the Constitutional Court of the Russian Federation in 2007” (Moscow, April 11–12, 2008);

International Correspondence Scientific and Practical Conference “Culture. Education. Law” (Yekaterinburg, May 2008).

The conclusions substantiated by the author regarding the regime of legal regulation of payments for compulsory insurance against accidents were taken into account when drawing up a complaint to the Constitutional Court of the Russian Federation on violation of certain provisions of the Federal Law "On compulsory insurance from industrial accidents and occupational diseases” constitutional rights and freedoms. The Constitutional Court of the Russian Federation in the relevant ruling dated July 15, 2003 No. 311-O noted a special legal regime for these payments, the establishment of which must comply with the constitutional requirements for the legislative regulation of any financial encumbrances.

Work structure. The dissertation consists of an introduction, three chapters divided into paragraphs, a conclusion, a list of references and other sources, as well as applications (comparative legal tables).

MAIN CONTENT OF THE WORK In the introduction the relevance of the topic is substantiated, the main goals and objectives of the study are determined, the degree of development of the topic is considered, the theoretical and methodological basis of the study is characterized, the main provisions submitted for defense are given, the theoretical and practical significance of the results of the work is indicated, information about their approbation and implementation in scientific and practical activities.

In the first chapter"The concept and types of sources of tax law in Russia" analyzes the properties of the sources of Russian tax law, taking into account which the definition of the corresponding concept is given, the necessity of dividing sources into tax law into main and auxiliary ones is substantiated, the main types of these sources are considered.

2) special intersystem links between sources of tax law and sources of budgetary law;

3) the backbone role of the Tax Code of the Russian Federation in the system of sources of tax law and the recognition of the exclusive competence of this codified act in the field of regulation of certain types of tax relations;

4) an abundance of auxiliary (interpretative, derivative) sources of tax law.

In the work, the subject of regulation of the sources of tax law is defined as public power relations that develop between the state, taxpayers and other persons regarding: 1) the establishment of taxes and fees;

2) introduction of taxes and fees;

3) collection of taxes and fees (tax obligations);

4) exercising tax control, appealing acts of tax authorities, actions (inaction) of their officials and bringing to responsibility for committing a tax offense (tax procedural relations). Establishing the subject of tax and legal regulation makes it possible to most reliably determine the composition of the sources of tax law.

This relationship is manifested in the fact that the sources of budgetary law create the appropriate conditions for the implementation of the norms enshrined in the sources of tax law, and the sources of tax law, in turn, create conditions for the implementation of the norms of budgetary law. At the same time, the dissertation takes into account the special principles of the operation of sources of tax law in time (Article of the Tax Code of the Russian Federation), which must be taken into account in order to ensure the mutual consistency of the norms of tax and budget law.

The paper proposes a classification of sources of tax law according to the criterion of establishing "new" or concretizing legal norms by one or another source. On the basis of this criterion, the sources of tax law are divided into two types: main sources (sources containing "new" legal norms) and auxiliary (interpretative, derivative) sources of tax law, which contain norms and provisions that explain and specify tax and legal norms enshrined in the main sources. The main sources of tax law in Russia include the provisions of the Constitution of the Russian Federation on taxes and fees, the Tax Code of the Russian Federation and other regulatory legal acts on taxes and fees (under certain conditions, and non-tax regulatory legal acts containing separate tax and legal norms), as well as international legal tax treaties.

Auxiliary sources of tax law are proposed to include decisions of the Constitutional Court of the Russian Federation and some international courts containing legal positions on tax issues (in particular, the European Court of Human Rights and the Economic Court of the CIS), as well as regulatory explanations of the competent executive authorities (Ministries of Finance of the Russian Federation).

Section two "The main sources of tax law" is devoted to the study of the distinctive properties and classification of the main sources of tax law in Russia - regulatory legal acts on taxes and fees and international legal treaties that regulate tax relations.

The subparagraph "Regulatory legal acts on taxes and fees" defines a regulatory legal act as a source of tax law. It is recognized as such a document adopted by an authorized body of state power or local self-government, containing a new rule of law (or changing or terminating the old rule) and regulating public relations for the establishment and introduction of taxes (fees, insurance premiums for compulsory state insurance, customs payments), tax obligations and tax procedural relations. Based on the constitutionally significant principle of establishing taxes by law, key attention is paid to the concept of legislation on taxes and fees.

By virtue of the adopted wording of paragraph 1 of Art. 5 of the Tax Code of the Russian Federation, the Russian legislator to the legislation on taxes and fees, in addition to federal laws and laws of the subject of the Russian Federation on taxes and fees, attributed the regulatory legal acts of representative bodies of local self-government, establishing and introducing in accordance with the code local taxes and fees. Normative acts of the executive authorities are not included in the legislation on taxes and fees, however, they can be used in the regulation of tax relations under certain conditions: 1) they are issued only in cases expressly provided for by tax legislation;

2) they cannot change or supplement the tax legislation.

In the subparagraph “International legal treaties”, the author analyzes the features of an international legal treaty as a source of tax law. The possibility of attributing an international legal treaty to the sources of national tax law is often disputed in domestic legal literature, in particular, it is proved that international treaties only affect the national law of Russia, but are not directly applied to regulate domestic relations. On the basis of constitutional and legal provisions and the practice of their interpretation, the paper argues that international legal treaties on tax issues ratified by the Russian Federation should be applied directly (including by Russian courts) and should be included in the sources on the tax law of Russia.

2) agreements on the avoidance of double taxation with respect to taxes on income and property;

3) agreements on avoidance of double taxation in certain areas of the economy (for example, in the field of transport);

4) agreements governing the collection of indirect taxes;

5) agreements on cooperation and mutual assistance in matters of compliance with tax laws;

6) non-tax agreements, which, along with other issues, regulate certain issues of tax law.

In order to systematize the material under study, comparative tables are drawn up as an appendix summarizing the tax and legal provisions contained in some model international tax agreements concluded by the Russian Federation: 1) comparative table No. 1 "International agreements establishing general principles of taxation";

2) comparative table No. 2 "International agreements governing the taxation of international transportation";

3) comparative table No. 3 "Agreements on cooperation and mutual assistance in matters of compliance with tax laws";

4) comparative table No. 4 "Consular conventions, including provisions on taxation";

5) Comparative table No. 5 “International agreements on the protection foreign investment, including provisions on taxation”;

6) Comparative Table No. 6 "International Agreements on Granted Privileges and Immunities Containing Taxation Provisions".

The dissertation examines the special role of model conventions in the preparation and conclusion of international tax treaties. Thus, as a result of international cooperation, the OECD Model Convention on Income and Capital for the avoidance of double taxation with respect to taxes on income and capital (OECD Model Convention on Income and Capital) was developed, which is used by many states when concluding relevant bilateral agreements. Many tax treaties concluded by the Russian Federation with its main European trade and economic partners are very close in content to the specified Model Convention (taking into account its version as of the date of conclusion of the relevant treaty). This is important in the context of considering Russia's application for membership in the OECD. Let us note that the basic concepts and procedures fixed in the Model Convention are the matrix that determines the content of bilateral agreements concluded. This predetermines the ever growing importance of official comments on model conventions, which are developed by the relevant international organizations (in particular, the OECD).

Paragraph three "Auxiliary sources of tax law" contains an analysis of the decisions of the Constitutional Court of the Russian Federation, decisions of other higher courts, as well as explanations of the competent executive authorities as auxiliary sources of tax law. It is emphasized that auxiliary sources of tax law should regulate tax relations in close relationship with the main sources, since they contain provisions specifying the norms enshrined in the main sources of tax law.

In the subparagraph “Decisions of the Constitutional Court of the Russian Federation and decisions of other higher judicial bodies”, the author gives additional arguments in favor of the point of view, according to which the system of sources of tax law in Russia should take into account the decisions of the Constitutional Court of the Russian Federation on tax issues.

Organization for Economic Cooperation and Development.

On the one hand, the adoption of a decision of the Constitutional Court of the Russian Federation, which recognizes a certain tax regulatory legal act as inconsistent with the Constitution of the Russian Federation, entails the exclusion of a specific legal norm (a group of interrelated legal norms) from the system of Russian tax law. Such a “cancelling” legal effect in itself makes it possible to compare the decision of the Constitutional Court of the Russian Federation with a normative legal act, since the legal position of a constitutional justice body cannot be overcome by the adoption of a new legal act that would reproduce a tax norm recognized as unconstitutional. Moreover, the specificity of tax law is manifested in the fact that the recognition by the Constitutional Court of the Russian Federation of a non-constitutional norm (group of norms) that defines one of those specified in Art. 17 of the Tax Code of the Russian Federation of elements of taxation, entails the loss of the status of “legally established” for the corresponding tax. Thus, the recognition that, for example, the norms on the rates of a particular tax as inconsistent with the Constitution of the Russian Federation can paralyze the operation of all norms relating to this tax.

On the other hand, the conducted analysis allows us to assert that in most cases the decisions and rulings of the Constitutional Court of the Russian Federation perform a concretizing and interpretive function, identifying criteria for the constitutional interpretation of the norm contained in the normative legal act.

At the same time, certain decisions of the Constitutional Court of the Russian Federation containing legal positions, but not the legal positions of the Court themselves, are the sources of tax law. Some legal norms regulating tax relations and recognized by the Constitutional Court of the Russian Federation as not corresponding to the Constitution of the Russian Federation, as well as the legal positions of the Court on the interpreted norms on taxes and fees are given by the author in the comparative tables No. 7 and 8 attached to the dissertation, respectively.

The work emphasizes the importance judicial practice formed by the Supreme Court and the Supreme Arbitration Court of the Russian Federation.

In this regard, the author of the work proposes to supplement the legislation with a provision on the obligatory clarifications of the Plenum of the Supreme Arbitration Court of the Russian Federation (Supreme Court of the Russian Federation) for executive authorities - participants in the relevant legal relations. The expediency of this step, at least in the tax sphere, is dictated by the desire to protect the rights and freedoms of taxpayers who, due to social, economic or legal reasons, were limited in their ability to use the right to judicial protection.

The thesis focuses on the decisions of international courts. The attribution of the decisions of the European Court of Human Rights to the sources of law is beyond dispute. However, according to Art. 32 of the relevant Convention, the jurisdiction of the European Court is all questions concerning the interpretation and application of the provisions of the Convention and its Protocols. The legal positions of this international court on tax issues are given in the comparative table No. 9 attached to the dissertation. In practice, the weight of the decisions of the European Court is confirmed by the use of its interpretations by the Constitutional Court of the Russian Federation, the Supreme Arbitration Court of the Russian Federation, the Supreme Court of the Russian Federation when making their own decisions.

The subparagraph “Written explanations of the competent executive authorities” raises the problem of determining the legal regime for issuing these explanations and their legal nature. The paper notes that most of the clarifications of the competent (financial and tax) authorities on tax issues cannot be attributed to the sources of tax law, since they represent only information about the current legislation on taxes and fees or express an opinion on the procedure for its application. However, in a number of cases, these acts, in terms of their content and goals, can, in the opinion of the dissertator, be qualified as auxiliary sources - normative explanations. This may take place if these acts contain specifying regulations addressed to an indefinite circle of persons, are officially published and really determine the content of law enforcement practice.

Federal Law No. 268-FZ of December 30, 2006 “On Amendments to Part One and Part Two of the Tax Code of the Russian Federation and Certain Legislative Acts of the Russian Federation”1 grants tax authorities the right to approve the forms of documents that they use in exercising their powers , as well as the procedure for filling them out, if there is a different procedure for approving these forms of documents of the SZ RF. 2007. No. 1. Part 1. Art. 31.

Commodity is not provided for by the code. For example, the orders of the Federal Tax Service of Russia approved the forms of a decision to refund (refuse to refund) the amount of VAT1, a decision to clarify a payment2, a decision to suspend an onsite tax audit3, and others. The paper substantiates the position that the legislator was not consistent enough in terms of granting the tax authorities the right to approve forms, since such orders (especially with regard to the procedure for filling out forms) may contain rules of law that affect the interests of the taxpayer. Due to the fact that the tax authorities, by virtue of Art. 4 of the Tax Code of the Russian Federation do not have the right to issue regulatory legal acts on taxes and fees, granting the right to approve forms may conflict with general approaches to the issue of separating legal regulation and control functions in the field of taxation. The dissertation proceeds from the fact that the concentration of norm-setting and control functions in one government agency unacceptable.

In the second chapter“Regulatory legal acts on taxes and fees as the main sources of tax law in Russia” a classification of regulatory legal acts on taxes and fees was carried out, in particular, the provisions of the Constitution of the Russian Federation on taxes and fees, the Tax Code of the Russian Federation and other acts of legislation on taxes were analyzed and fees, non-tax laws containing tax and legal norms, as well as normative acts of executive authorities.

2) the principle of the unity of the economic space (art. 8) and the prohibition on the establishment of fiscal obstacles to the free movement of goods, works, services and financial resources(Art. 74);

3) provisions on the establishment of fe Order of the Federal Tax Service of the Russian Federation dated April 18, 2007 No. MM-3-03 / [email protected](ed. January 11, 2009) // Bull. normative acts of federal executive bodies. 2007. June 4th.

Order of the Federal Tax Service of the Russian Federation dated April 2, 2007 No. MM-3-10 / [email protected]// Bull. normative acts of federal executive bodies. 2007. July 2.

Order of the Federal Tax Service of the Russian Federation dated March 6, 2007 No. MM-3-06 / [email protected]// Bull. normative acts of federal executive bodies. 2007. May 14.

federal taxes (Article 71), as well as on the establishment of a system of taxes and general principles of taxation by federal laws (Part 3 of Article 75);

4) the rules on the obligatory conclusion of the Government of the Russian Federation on draft laws on the introduction or abolition of taxes, exemption from their payment (Article 104) and the obligatory consideration in the Federation Council of federal laws adopted by the State Duma on issues of federal taxes and fees (Article 106);

5) the principles of equality of the constituent entities of the Russian Federation in adopting their own tax legislation (parts 1, 2, 4, article 5) and the independence of local governments in establishing local taxes and fees (article 132).

In paragraph two, "The Tax Code of the Russian Federation and other acts of legislation on taxes and fees," the question of the priority of the Tax Code of the Russian Federation over other federal laws on taxes and fees is examined. Despite the fact that the establishment of the priority of a codified act over other federal laws and normative legal acts was recognized by the Constitutional Court of the Russian Federation under certain circumstances not contradicting the Constitution of the Russian Federation1, this problem remains unresolved from the point of view of a systematic approach. In particular, some scientists note that the priority enshrined in the Tax Code of the Russian Federation over other federal laws adopted after its entry into force does not correspond to one of the generally recognized legal principles, according to which the subsequent law cancels the previous law2. The paper substantiates that the non-recognition of the priority of the codified act in this case negatively affects the stability of the legal regulation of tax relations.

The author substantiates some key principles of the regional legislation on taxes and fees, which, in appropriate cases, can be adopted in development of the provisions of the Tax Code of the Russian Federation. These include, in particular: 1) the establishment of institutions, concepts, terms that are uniform for all subjects of the Russian Federation (Art. Resolution of the Constitutional Court of the Russian Federation of June 29, 2004 No. 13-P on the case of checking the constitutionality of certain provisions of Articles 7, 15, 107, 234 and Code of Criminal Procedure // SZ RF, 2004, No. 27, Article 2804.

See, for example: Andreeva M.V. Legal positions of the Constitutional Court of the Russian Federation on the procedure for the entry into force of acts of legislation on taxes and fees // Tax law in the decisions of the Constitutional Court of the Russian Federation in 2003. According to the materials of the International scientific-practical. conf. Moscow, 2004, pp. 132–133.

Tax Code of the Russian Federation), as well as the main principles of legislation on taxes and fees (Article 3 of the Tax Code of the Russian Federation);

2) the establishment of identical requirements for the regions in the field of tax discipline and legal prerequisites for the formation of an equal tax burden in the constituent entities of the Russian Federation;

3) limitation of the effect of laws on taxes and fees of a subject of the Russian Federation by its tax jurisdiction, determined mainly by the territorial criterion (i.e., within the boundaries of the corresponding subject of the Russian Federation). Similar approaches are also used to determine the principles of legal regulation carried out by the representative bodies of municipalities in the field of taxation.

In the third paragraph "Non-tax laws containing tax legal norms, and their place in the system of sources of tax law" the problem of the correlation of the so-called sectoral and tax laws is raised. The paper substantiates that the inclusion of tax rules in non-tax laws can hypothetically take place, but only if the formal requirements of the Constitution of the Russian Federation and Art. 5 of the Tax Code of the Russian Federation, namely: the tax-legal norm must be contained in a federal law (Art. 75), adopted by the State Duma (Art. 105), necessarily considered by the Federation Council (Art. 106), signed and promulgated by the President (Art. 107);

From a formal point of view, the presence in the law regulating non-tax relations of the norms of tax law is not the reason for the legal inconsistency of such a law. Sometimes the inclusion of tax rules in non-tax laws is caused by the desire of the legislator to fully regulate interrelated issues (for example, tax and budgetary law). At the same time, the paper substantiates that the constitutionally significant principle of the certainty of taxation focuses on the formation of an autonomous, relatively separate system of legislation on taxes and fees. In light of this, the inclusion of tax-legal norms in non-specialized, i.e., non-tax, laws is regarded as inconsistent with this principle.

In paragraph four, "Regulatory acts of executive authorities on taxes and fees", regulatory legal acts of executive authorities are subdivided into acts of bodies of general competence (the Government of the Russian Federation, the President of the Russian Federation, higher executive authorities of the constituent entities of the Russian Federation and executive bodies of local self-government) and acts of bodies special competence (for example, the Ministry of Finance of the Russian Federation). The paragraph deals with the issues of delegation of tax lawmaking powers from representative bodies to executive authorities.

The legislator sometimes has the right to delegate to the executive body the authority to regulate issues related to taxation, but only taking into account the following: 1) the essential elements of taxation must be established by law, the regulation of these issues by the executive body is prohibited;

2) normative regulation of the executive body is reduced to detailing and specifying the established legislative tax and legal norms. In particular, such specification may relate to the technical aspects of the execution of a tax obligation, without affecting its essence;

3) normative regulation of the executive body is carried out on the basis of the tax law and cannot contradict it, supplement it;

4) the representative body exercises control over the executive body, since the delegated tax authority is retained by the delegating body as an element of its tax legal personality;

5) the executive body is not entitled to carry out sub-delegation in relation to tax rule-making powers.

Third chapter"Basic principles of operation of normative legal acts on taxes and fees" is divided into two paragraphs.

Paragraph one "Problems of the operation of regulatory legal acts on taxes and fees in time, in terms of persons and in space" aims to consider the problem of sources of tax law in dynamics, i.e. from the point of view of their action in the context of temporal, spatial and subject-personal factors. Analyzing the identified problems, the author provides additional arguments confirming that the tax legislator allowed confusion between the concepts of entry into force and the beginning of the operation of a regulatory legal act on taxes and fees.

D. N. Bahrakh rightly points out: “When studying the effect of a norm over time, it is important to distinguish between two circumstances: the time during which the norm is in force (the terms of its calendar action);

the limits of its action in time, that is, to what facts, relations it extends.

Analysis of the norms of Art. 5 of the Code, shows that a more precise title of the article should include an indication not only of the effect of acts in time, but also of their entry into legal force. The work critically assesses judicial practice, which allows ignoring the requirements of Art. 5 of the Tax Code of the Russian Federation upon the entry into force of laws on taxes and fees regulating the so-called transitional periods (adopted in connection with a comprehensive change in the regime of regulation of certain tax relations).

References to the “one-time” application of such laws, as we are convinced, are untenable, especially since there are no grounds to deny the legal nature of the act even in the case of its one-time application by a specific taxpayer.

The paper considers the judicial practice of declaring by the court a normative act on tax and collection invalid or invalid for the future. It is emphasized that the full restoration of the violated rights and legitimate interests of participants in tax relations is possible in the case when an illegal act is excluded from legal regulation from the moment it comes into force (in cases of retroactivity of the act, from the moment it begins to operate). The announcement of normative legal acts on taxes and fees as invalid (invalid) for the future stimulates the growth of violations of the rights and interests of participants in tax relations. There is a contradiction in the extension of the force (operation) of illegal norms by the court: on the one hand, according to the decision of the court, the norm becomes invalid (terminates) due to its illegality, and on the other hand, the norm continues to be in force by the decision of the same court (continues to manipulate relations) illegally. It is substantiated that illegal tax regulations cannot and should not have legal force (should not be valid) from the moment they are adopted, therefore, they should not entail any legal consequences other than those related to their nullity (recognition as invalid). Consolidation of this provision at the legislative level will allow, according to the author, nai Bahrakh D. N. Action of the legal norm in time // Sov. state and law.

1991. No. 2. S. 12.

more effectively ensure the protection of the violated rights and legitimate interests of participants in tax relations.

In order to establish and evaluate the subject-personal sphere of action of tax regulatory legal acts, an analysis is made of such aspects of their action in terms of a circle of persons, which are manifested in the requirements of equal and universal taxation. In particular, in practice, this problem often manifested itself when individual tax benefits (or also benefits formally calculated for an indefinite circle of payers, but due to deliberately provided special conditions for their receipt, actually extending only to one particular taxpayer).

When considering the spatial and territorial aspects of the operation of the sources of tax law, the author, in particular, substantiates that the regulatory legal acts on taxes and fees are valid not only in the space legally recognized as the territory of Russia. The expansion of the spatial scope of these acts takes place at the expense of the continental shelf and the exclusive economic zone, in respect of which the Russian Federation has sovereign rights.

In paragraph two "Competition of normative legal acts on taxes and fees and rules for resolving emerging conflicts" the following principles of priority are highlighted, applied in the competition of normative legal acts on taxes and fees:

1) normatively established priority (including the priority of a codified act);

2) industry priority;

3) the priority of a special norm over a general one;

4) the priority of a later adopted act.

As a normatively established priority, the rules of the hierarchy of sources are considered: the priority of the Constitution of the Russian Federation over all normative legal acts;

priority of normative legal acts of representative bodies of the Russian Federation over normative legal acts of representative bodies of constituent entities of the Russian Federation and local self-government, as well as before acts of executive bodies of the Russian Federation, constituent entities of the Russian Federation and other similar rules. When considering the issue of sectoral priority, examples of the use of institutions, concepts and terms in a special sense established in the Tax Code of the Russian Federation are analyzed (as is known, in accordance with Article 11 of the Tax Code of the Russian Federation, the institutions, concepts and terms of civil, family and other branches of the legislation of the Russian Federation are applied in the sense in which they are used in these branches of legislation, unless otherwise provided by the code).

In custody The dissertator sums up certain results of the research and points out some of the most urgent problems requiring immediate solutions.

Key points dissertation research are reflected in the following published works:

1. Normative legal act as a source of tax law of the Russian Federation // Taxes and financial law. 2007. No. 9.

2. Recognition of a regulatory legal act on taxes and fees as invalid or invalid // Taxes and financial law.

2008. No. 1. S. 288–293.

3. Bylaws regulations as sources of tax law // Laws of Russia: experience, analysis, practice. 2007. No. 11.

Other scientific publications:

4. Limits of delegation in the tax law of rule-making powers from representative bodies to executive authorities // Taxes and taxation. 2008. March. pp. 43–48.

5. Contribution status off-budget fund// Constitutional foundations for the organization and functioning of public authorities in the Russian Federation: Materials of the All-Russia. scientific-practical.

6. Taxation material gain// South Ural legal. vestn. 2001. No. 2. S. 80–81.

7. Advance payments for income tax // Business. Management ment. Right. 2002. No. 1. S. 32–33.

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Writing paper. Offset printing.

Conv. oven l. 1.63. Uch.-ed. l. 1.54.

Circulation 110 copies. Order No. Design and Printing Department of the Publishing House "Ural State Law Academy".

620066, Yekaterinburg, st. Komsomolskaya,

Topic I. Genesis and retrospective of the development of tax relations
§ 1. The emergence and development of tax relations. . . . . . . . . . . . . . 15
§ 2. Development of scientific theories of taxation. . . . . . . . . . . . . . . . .42
§ 3. Tax as an economic and legal category. . . . . . . . . . . . . . . . . 56
Questions on the topic. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Theme II. The concept of tax law
§ 1. Tax administration. . . . . . . . . . . . . . . . . . . . . . .69
§ 2. Subject of tax law. . . . . . . . . . . . . . . . . . . . . . . . 79
§ 3. Method of tax law. . . . . . . . . . . . . . . . . . . . . . . . . 96
§ 4. Tax law and accounting. . . . . . . . . . . . . . . . . .143
Questions on the topic. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .146
Topic III. Tax law system
§ 1. Tax system. . . . . . . . . . . . . . . . . . . . . . . . . . . 148
§ 2. The essence of taxation. . . . . . . . . . . . . . . . . . . . . . . .156
§ 3. Functions of taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
§ 4. Principles of construction of the tax system. . . . . . . . . . . . . . . . . 168
§ 5. The system of tax legislation. . . . . . . . . . . . . . . . . . 178
§ 6. Foreign tax systems. . . . . . . . . . . . . . . . . . . . . .181
Questions on the topic. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .191
Topic IV. Problems of sources of tax law
§ 1. Problems of defining the source of tax law. . . . . . . . . . . . . 193
§ 2. Fiscal sovereignty of the state as a determining factor
determining the source of tax law. . . . . . . . . . . . . . . . . . . 196
§ 3. Types of sources of tax law. . . . . . . . . . . . . . . . . . . .199
3.1. Law as a source of tax law. . . . . . . . . . . . . . . . . . 199
3.2. Presidential Decrees. . . . . . . . . . . . . . . . . . . . . . . . . . . .205
3.3. Acts of ministries and departments. . . . . . . . . . . . . . . . . . . . . . 206
3.4. Judicial acts in the system of sources of tax law. . . . . . . . . . 210
3.5. international treaties. . . . . . . . . . . . . . . . . . . . . . . . .220
§ 4. Norms of other branches of law in tax relations. . . . . . . . . . . .223
§ 5. The effect of tax regulations. . . . . . . . . . . . . . . . . . . . . . . . 224
Questions on the topic. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .227
Topic V. Principles of taxation
§ 1. The essence of the basic principles of regulation of tax relations. . . . . . . 230
§ 2. Principles of tax law. . . . . . . . . . . . . . . . . . . . . . . 241
§ 3. Principles of international tax rules. . . . . . . . . . . . . . . . 277
Questions on the topic. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .287
Theme VI. Tax as a legal category
§ 1. The problem of tax definition. . . . . . . . . . . . . . . . . . . . . . . 289
§ 2. Conditions under which taxes may exist. . . . . . . . . . . . .295
§ 3. Economic entity taxes. . . . . . . . . . . . . . . . . . . . .306
§ 4. Rules for the collection of taxes. . . . . . . . . . . . . . . . . . . . . . . .310
§ 5. Classr1fikatsiya taxes. . . . . . . . . . . . . . . . . . . . . . . . .312
§ 6. Functions of taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . 325
Questions on the topic. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .332
Theme VII. Tax legal relations: concepts and grounds for the emergence,
changes and termination of tax legal relations
§ 1. The concept and features of the tax relationship. . . . . . . . . . . . 334
§ 2. The structure (structure) of the tax legal relationship. . . . . . . . . . 339
§ 3. Public tax obligation and tax liability. . . . . . . 344
§ 4. Types of tax legal relations. . . . . . . . . . . . . . . . . . . 358
§ 5. Legal (legal) facts and their types. Legal (legal)
presumptions and fictions. . . . . . . . . . . . . . . . . . . . . . . . . . . . .360
§ 6. Subjects, objects and content of tax legal relations. . . . . . . . 365
Theme VIII. Subjects of tax relations
§ 1. Legal personality of the taxpayer. . . . . . . . . . . . . . . . . . 375
§ 2. Classification of taxpayers. . . . . . . . . . . . . . . . . . . .397
§ 3. Public-territorial formations as subjects of tax
relations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .411
§ 4. Tax authorities as subjects of tax relations. . . . . . . . . . . 414
§ 5. Powers of the customs in tax relations. . . . . . . . . . . . . .417
§ 6. Tax agents. . . . . . . . . . . . . . . . . . . . . . . . . . . .418
§ 7. Collectors of taxes and fees. . . . . . . . . . . . . . . . . . . . . . . 420
§ 8. Financial and authorized bodies. . . . . . . . . . . . . . . . . . .420
Questions on the topic. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .421
Topic IX. Objects of taxation
§ 1. The concept of the object of taxation. . . . . . . . . . . . . . . . . . . . 424
§ 2. Property. Goods. Works and services. . . . . . . . . . . . . . . . . . .429
§ 3. The concept of realization. Place of sale of goods, services, works. . . . . . .431
§ 4. The concept of income. Sources of income. Income received in the territory
RF and beyond. . . . . . . . . . . . . . . . . . . . . . . . . . . . 434
§ 5. Interest and dividends. . . . . . . . . . . . . . . . . . . . . . . . . .436
Questions on the topic. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .437
Topic X. Fulfillment of the obligation to pay tax
§ 1. Fulfillment of the obligation to pay taxes and fees. . . . . . . . . . . 440
§ 2. Payment of tax. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 446
§ 3. Withholding tax. . . . . . . . . . . . . . . . . . . . . . . . . . . .449
§ 4. Termination of the tax obligation to pay taxes and fees. . . . . . .453
§ 5. Tax offset. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .455
§ 6. Tax refund. . . . . . . . . . . . . . . . . . . . . . . . . . . . .458
§ 7. Changing the deadline for payment of tax. . . . . . . . . . . . . . . . . . . . . 462
§ 8. Collection of tax. . . . . . . . . . . . . . . . . . . . . . . . . . . .464
Questions on the topic. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .471
Topic XI. Economic favored nation in tax relations
§ 1. The essence and content of tax benefits. . . . . . . . . . . . . . . . .475
§ 2. Zones of economic favored nation. . . . . . . . . . . . . . . . 490
§ 3. Regime for the elimination of double taxation. . . . . . . . . . . . . . . 498
§ 4. Tax benefit and abuse of right. . . . . . . . . . . . . . . 499
Questions on the topic. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .510
Theme XII. Control in tax relations
§ 1. The concept and elements of tax control. . . . . . . . . . . . . . . . .513
§ 2. Methods for the implementation of tax control. . . . . . . . . . . . . . . .520
§ 3. Forms of tax control. . . . . . . . . . . . . . . . . . . . . . . 524
3.1. Tax accounting of legal entities and individuals. . . . . . . . . . . . . . 524
3.2. tax audits. . . . . . . . . . . . . . . . . . . . . . . . . . .528
3.2.1. Repeat checks. . . . . . . . . . . . . . . . . . . . . . . . . .530
3.2.2. Thematic check. . . . . . . . . . . . . . . . . . . . . . . . 530
3.2.3. Cameral tax audits. . . . . . . . . . . . . . . . . . . .530
3.2.4. Field tax audits. . . . . . . . . . . . . . . . . . . . . 536
3.3. Inventory. . . . . . . . . . . . . . . . . . . . . . . . . . . . .540
3.4. Inspection of premises and territories. . . . . . . . . . . . . . . . . . . . . 541
3.5. Request for documents. . . . . . . . . . . . . . . . . . . . . . . . 541
3.6. Explanations of the taxpayers. . . . . . . . . . . . . . . . . . . . . 542
3.7. Fiscalization of operations. . . . . . . . . . . . . . . . . . . . . . . . . 543
3.8. Control of opening bank accounts and electronic means of payment. . . 543
3.9. Controlled transactions. . . . . . . . . . . . . . . . . . . . . . . . . 543
3.10. Pricing agreement for tax purposes as a form
tax control (Article 105.19 of the Tax Code of the Russian Federation). . . . . . . . . . . . . . . . . . . 545
3.11. Tax declarations (Article 80 of the Tax Code of the Russian Federation). . . . . . . . . . . . . . . . . .546
3.12. Transaction price control (Article 40 of the Tax Code of the Russian Federation). . . . . . . . . . . . . . . . . .547
3.13. Level control tax burden. . . . . . . . . . . . . . . . . . 548
3.14. Control currency transactions. . . . . . . . . . . . . . . . . . . . . . 549
Theme XIII. Tax Liability
§ 1. Essence tax liability. . . . . . . . . . . . . . . . . . .552
1.1. Responsibility as a legal relationship. . . . . . . . . . . . . . . . . . .561
1.2. Responsibility features. . . . . . . . . . . . . . . . . . . . . . . .563
1.3. responsibility function. . . . . . . . . . . . . . . . . . . . . . . .570
§ 2. Persons subject to liability for the commission of tax
offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 572
§ 3. Correlation of offense, responsibility and sanction. . . . . . . . . 590
§ 4. Penalty. Concept and functions. . . . . . . . . . . . . . . . . . . . . . . . 601
Questions on the topic. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .618
Theme XIV. Appeal against acts of tax authorities and actions (omissions)
officials
§ 1. Right of tax appeal. . . . . . . . . . . . . . . . . . . . . .624
§ 2. Subject of tax appeal. . . . . . . . . . . . . . . . . . . . .627
§ 3. Tax appeal procedure. . . . . . . . . . . . . . . . . . . . .629
§ 4. Tax process. . . . . . . . . . . . . . . . . . . . . . . . . . . 634
Questions on the topic. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .642
Literature. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 644

Tax is one of the basic concepts of financial science. It should be considered simultaneously as an economic, economic and political phenomenon. Also, attempts were constantly made to define the tax not only from the above positions, but also from a legal point of view. The founder of the theory of taxation, A. Smith (1723–1790), defined tax as a burden imposed by the state in a legislative manner, which provides for its size and payment procedure. He put forward the thesis about the unproductive nature of public spending, according to which the tax is harmful to society. But at the same time, Smith understood the tax as a conscious necessity, as a need for economic and social development. Therefore, taxes for those who pay them are not a sign of slavery, but of freedom. The dual nature of taxation is clearly traced here. Modern definitions of tax emphasize the coercive nature of taxation and the absence of a direct link between the benefit of the citizen and taxes. Thus, the Tax Code of the Russian Federation gives the following definition of the sought-for concept: “A tax is understood as a mandatory, individually gratuitous payment levied from organizations and individuals in the form of alienation of their property rights, economic management or operational management of funds, in order to financial support activities of the state and (or) municipalities”. Thus, it contains legal norms that are important for understanding the essence of taxation, namely:  the prerogative of the legislature to approve taxes;  the main feature of the tax is the unilateral nature of its establishment;  the tax is individually gratuitous; gives rise to a counter obligation of the state;  the tax is levied on conditions of irrevocable;  the purpose of levying a tax is to ensure public spending in general, and not any specific expenditure. We point out that the understanding of the term "tax" contributes to the correct application of the norms of legislation, makes it possible to determine the scope of powers of the subjects of tax relations. Without a precise definition of this term, it is impossible to correctly establish the financial or other types of liability of the taxpayer.

In Art. 8 of the Tax Code of the Russian Federation provides definitions of tax and fee.

Under tax is understood as a mandatory, individually gratuitous payment levied from organizations and individuals in the form of alienation of their property, economic management or operational management of funds in order to financially support the activities of the state and (or) municipalities.

Under collection is understood as a mandatory contribution levied from organizations and individuals, the payment of which is one of the conditions for the commission of state bodies, local governments, other authorized bodies and officials of legally significant actions in relation to payers of fees, including the granting of certain rights or the issuance of permits (licenses).

Tax signs:

imperative;

individual gratuitousness;

payment for the purpose of financial support for the activities of the state;

legality;

relative regularity.

1. Taxes are not the only source of budget revenues - they are only one of the types of non-economic state coercion. As follows from Art. 10 of the Federal Law of February 26, 1997 “On the Federal Budget for 1997””, in addition to taxes themselves, which play a crucial role in shaping the budget of Russia, there are other types of withdrawals to the state treasury: license and registration fees, seasonal fees from the population for sold electricity, profit Central Bank Russian Federation. In addition, businesses and citizens produce mandatory contributions to off-budget funds, pay all kinds of tariffs and other obligatory payments. In this regard, the variety of forms of certain withdrawals to the treasury makes it necessary to determine which of the above is directly a tax, and which is non-tax payments.
The problem is that tax is a complex category, having both economic and legal significance. Considering the category of tax from an economic point of view, we can conclude that it is rather difficult to distinguish it from other state exemptions, as well as to establish its difference from other fees, duties and payments. According to Professor A. Kazak, taxes as “the most important cost economic category” are “ monetary relations through which the state gratuitously withdraws a part of the national income to financially ensure the implementation of its functions”2. A. Dadashev defines tax as “the withdrawal by the state in favor of society of a certain part of the gross domestic product in the form of a mandatory contribution”3. That is, when determining the economic nature of taxes, the most important criterion is their essential belonging to the financial and budgetary system of society.
At the same time, it seems obvious that the definition of tax acquires decisive importance precisely in law, since, firstly, an accurate understanding of the content of the category “tax” contributes to the correct and uniform application of the norms of legislation that restrict the right of private property of the payer; secondly, the concept of tax should be one of the starting points in the preparation of laws regulating the procedure for establishing and collecting tax payments; thirdly, a clear understanding of the term "tax" makes it possible to determine the scope of powers and competence of the tax authorities.
However, the most important thing is that without a clear definition of the term "tax", the correct implementation of both financial and other types of liability is impossible. For example, a financial sanction in the form of a penalty fee of 0.3% is collected only for late payment of tax payments (subparagraph “b”, paragraph 1, article 13 of the Law on the Fundamentals of the Tax System); while in case of delay in making non-tax payments, a fine of 0.05% should be collected (clause 4 of the “Regulations on the collection of taxes and non-tax payments not made on time”, approved by Decree of the Presidium of the Supreme Soviet of the USSR of January 26, 1981 No.
2. The normative definition of tax is given in Art. 2 of the Law on the Fundamentals of the Tax System: “A tax, due, duty and other payment is understood as a mandatory contribution to the budget of the appropriate level or to an off-budget fund, carried out by payers in the manner and under the conditions determined by legislative acts.” In other words, the tax is mandatory payment levied by the state from legal entities and individuals.
The above definition seems to be extremely unsuccessful, since it does not reveal the essential legal features of the tax and does not provide any legal criteria for distinguishing tax payment from non-tax. In particular, if we compare the legal nature of taxes in their generally accepted sense (profit tax, tax on road users, etc.) and, for example, deductions to Pension Fund, to the fund health insurance, duties, environmental charges and financial sanctions, then any fundamental differences between them in the light of the above Art. 2 Laws will be more than relative.
3. Due to the clearly insufficient normative content of the legal category of tax, legal science was forced to independently determine this definition.
According to S. Pepelyaev, “tax is the only legal (established by law) form of alienation of property of individuals and legal entities on the basis of obligation, individual gratuitousness, irrevocable, secured by state coercion, not bearing the nature of punishment or indemnity, in order to ensure the solvency of public authorities” five. This most optimal definition of the tax still seems incomplete, since its definition is given by way of exclusion (“not bearing the character of punishment or indemnity”) and does not reflect its positive features.
V. Gureev gives the following definition: "Tax is a mandatory contribution levied by the state from legal entities and individuals to the budget of the appropriate level (federal, regional, local)". Mandatory contribution he defines as " statutory method of seizure from legal entities and individuals in monetary form part of the income (profit, property) received from entrepreneurial activity and other sources"6. At the same time, it is obvious that the entrepreneurial nature of the objects of taxation is not a universal criterion, but a private one, therefore this criterion cannot be used in defining the concept of "tax".
E. Pokachalova considers taxes as mandatory and in legal form individual non-reimbursable payments of legal entities and individuals established by state authorities for enrollment in the state budget system (or in these cases - off-budget trust funds) with the determination of their amounts and terms of payment7.
According to I. Denisova, “taxes are obligatory individual non-reimbursable cash payments to budgets and state non-budgetary funds collected from taxpayers in the legally established manner and amounts”8.
At the same time, all the above definitions of jurists on the definition of tax largely reflect the economic nature of these exemptions, and it is not possible to determine exactly how a tax differs from other non-tax payments.
, 1. Rossiyskaya Gazeta, March 4, 1997
2. Cossack A. et al. Finance and credit: Textbook / Ed. A. Cossack. Yekaterinburg: MP "PIPP", 1994. S. 185.
3. Dadashev A. Essence of taxes and principles of taxation / Taxes. Tutorial. Ed. D. Blueberry. M.: Finance and statistics, 1996. S. 47.
4. "Vedomosti of the Supreme Soviet of the USSR", 1981. No. 5. Art. 122.
5. Fundamentals of tax law: Teaching aid/ Ed. S. Pepelyaeva. M.: Invest Fund, 1995. S. 24.
6. Gureev V. Tax law. M.: Economics, 1995. S. 28-29.
7. Pokachalova E. Taxes, their concept and role / Financial right: Textbook. M.: VEK Publishing House, 1995. S. 226.
8. Denisova I. The concept of tax. Principles and functions of taxation. Russian Tax System / Financial Law: Textbook. Ed. O. Gorbunova. M.: Jurist, 1996. S. 181.

More on the topic § 3.1. Tax definition problem:

One of the ways to solve the problem, of course, in addition to the complete elimination of inflation, is the indexation of taxes. In other words,
Problem 1. Japan's main problem is the growth of protectionism around the world.
3.1.5. Verification of individual indicators of the income tax declaration for compliance with their norms of the current legislation on corporate income tax - analysis of the tax base for corporate income tax

in law and jurisprudence on the topic "Sources of tax law of the Russian Federation: concept, problems of classification, basic principles of action"

As a manuscript

Krivykh Irina Anatolyevna

SOURCES OF TAX LAW OF THE RUSSIAN FEDERATION: CONCEPT, PROBLEMS OF CLASSIFICATION, BASIC PRINCIPLES OF ACTION

Specialty 12.00.14 - administrative law; financial right; information law

Yekaterinburg 2009

The work was carried out at the Department of Financial Law of the State Educational Institution of Higher Professional Education "Ural State Law Academy"

Scientific adviser - Doctor of Law, Professor

Vinnitsky Danil Vladimirovich

Official opponents: Doctor of Law, Professor

Gracheva Elena Yurievna, PhD in Law Bryzgalin Arkadiy Viktorovich

Leading organization - Moscow State University. M. V. Lomonosov

The defense will take place "k9" SISSL, 2009 in k? hours 00 minutes at a meeting of the dissertation council D 212.282.02 at the Ural State Law Academy at the address: 620066, Yekaterinburg, st. Komsomolskaya, 21

The dissertation can be found in the scientific library of the Ural State Law Academy at the address: Yekaterinburg, st. Komsomolskaya, 21

Scientific Secretary

dissertation council? //

Doctor of Law, /u,

Professor £¡o. Golovin

GENERAL DESCRIPTION OF WORK

At the first stage of the formation of the Russian tax system, detailed regulation of the procedure for calculating and paying taxes and fees was carried out by separate laws and numerous by-laws. Its further improvement was accompanied by a trend towards limiting the rule-making functions of the executive authorities and strengthening the principle of the rule of law in tax relations. The current Tax Code of the Russian Federation (TC RF) consolidated the basic principles of taxation, determined the composition of the legislation on taxes and fees, the priority of international treaties over the norms of national legislation on taxes and fees. Nevertheless, the regulation of tax relations needs further improvement. This is dictated, in particular, by the fact that the list of sources of tax law at the legislative level remains not clearly defined, the problems of their classification are not fully developed in scientific terms, and the principles of their operation are often interpreted in very different ways in law enforcement practice.

The interpretation of tax law often causes intractable disputes, which underlines the importance for regulation

tax relations official clarifications of financial and tax authorities. Practice shows that sometimes these clarifications are intended for specific taxpayers, and sometimes they are considered suitable for an indefinite circle of people and are subsequently published in various print and electronic publications, having a significant impact on the actions and decisions of business entities related to the procedure for calculating and paying taxes. It seems that within the framework of the theory of sources of tax law, this issue cannot be ignored.

In accordance with the current legislation of the Russian Federation, federal executive bodies authorized to exercise the functions of control and supervision in the field of taxes and fees, and their territorial bodies do not have the right to issue regulatory legal acts on taxes and fees. However, the legislator granted the tax authorities the right to approve certain forms of law enforcement and other acts used by them in the exercise of control functions. Practice shows that granting such a right may conflict with general legislative approaches to the issue of separating the functions of legal regulation and control in the field of taxes and fees.

Goals and objectives of the dissertation work. The purpose of this study is a comprehensive analysis of the key problems of the formation of the system of sources of tax law in the Russian Federation, the formulation of definitions for the concepts used, the development of a classification of tax and legal sources, and an analysis of the basic principles of their operation.

based on the generalization of the achievements of modern legal science, to determine the range of sources of modern Russian tax law, focusing on debatable questions and finding answers to them;

carry out a comprehensive analysis of the system of sources of Russian tax law, determine its elements and propose a classification of these sources;

identify the role of decisions of international courts (in particular, the European Court of Human Rights), rulings and rulings of the Constitutional Court of the Russian Federation, rulings of the Plenums of the Supreme Arbitration Court and the Supreme Court of the Russian Federation in the regulation of tax relations;

establish the legal nature of the clarifications of the financial and tax authorities in the context of the problems of the formation of the system of sources of tax law in the Russian Federation;

determine the legal limits for the delegation of rule-making powers in the tax sphere from representative authorities to executive bodies;

carry out the classification of international treaties on taxation issues, identify and justify their significance as an element of the system of sources of tax law of the Russian Federation;

to study the general principles of the operation of sources of tax law in Russia in time, space and circle of persons.

The theoretical basis of the study was the works of such Russian scientists of the pre-revolutionary period as E. V. Vaskovskii, N. M. Korkunov, K. I. Malyshev, F. V. Taranovsky, G. F. Shershenevich, and I. I. Yanzhul. The concept of the work was significantly influenced by monographs, textbooks and articles on the theory of state and law, prepared, in particular, by such authors as: S. S. Alekseev, A. B. Vengerov, S. L. Zivs, V. M. Korelsky , S. A. Komarov, R. Z. Livshits, V. S. Nersesyants, A. V. Malko, M. N. Marchenko, A. V. Mitskevich, V. D. Perevalov, A. S. Pigolkin, Yu A. Tikhomirov, V. A. Tolstik, A. F. Shebanov. The authors in the field of financial and tax law, whose works were the basis of this dissertation research, include K. S. Velsky, A. V. Bryzgalin, D. V. Vinnitsky, G. A. Gadzhiev, O. N. Gorbunova , E. Yu. Grachev, A. V. Demin, S. V. Zapolsky, M. F. Ivliev, M. V. Karasev, Yu. A. Krokhin, M. V. Kustov, I. I. Kucherova, N. P. Kucheryavenko, O. A. Nogin, P. S. Patsurkivsky, S. G. Pepelyaev, G. V. Petrov, G. P. Tolstopyatenko, N. I. Khimichev, N. A Shevelev and many other scientists. Separate

aspects considered in this paper were studied by scientists in the framework of works on problems of other branches of Russian and international law (D. N. Bakhrakh, V. S. Belykh, S. K. Zagainova, G. V. Ignatenko, S. Yu. Marochkin , M. S. Salikov, V. I. Slom, S. V. Chernichenko, V. V. Yarkov).

The degree of development of the research topic. It is difficult to find a work on tax law issues in Russian legal science, in which, to one degree or another, the problems of the sources of this area of law would not be affected. However, many key issues in the theory of sources of tax law in the Russian Federation are still undeveloped, and complex studies of the identified scientific problems have clearly not been enough. At the same time, one cannot fail to name a number of Ph.D. theses, in which some of the aspects of the chosen topic were previously touched upon and considered. These works, in particular, include the works of: M. V. Andreeva “The effect of tax legislation in time”, T. A. Bondarenko “The effect of legislative acts on taxes and fees in time, space and circle of persons”, S. A. No-tina "Judicial practice in the system of sources of tax law (on the example of the EU and the Russian Federation)", S. G. Oleinikova "Sources of tax law of the Russian Federation", N. I. Chuzhikova "Sources of financial law". An integrated approach to the issues under study is most clearly expressed in the last two works (this already follows from their titles). However, the work of S. G. Oleinikova is mainly devoted to the analysis of acts of legislation on taxes and fees, and the topic designated by N. I. Chuzhikova predetermined the general consideration of the widest range of issues related to the sources of financial law in Russia as a whole. Thus, despite the fact that Russian scientists have paid some attention to the problems of the sources of tax law, no comprehensive study of the issues raised in this paper has been carried out.

The methodological basis of the work is a complex of general scientific methods of cognition and some particular scientific methods. The dialectical method is the methodological basis of this work and presupposes the comprehensiveness, objectivity and interconnection of the studied phenomena. Along with it, historical-legal, comparative-legal, technical-legal methods were used,

various methods of analysis and generalization of legislation and practice of its application.

Scientific novelty of the research. The following main provisions are formulated in the work, which have scientific novelty and are submitted for defense.

1. The practical and theoretical significance of dividing the sources of tax law into two key groups is substantiated: 1) the main sources of tax law; 2) auxiliary (interpretative, derivative) sources of tax law. The first group of sources is proposed to include a normative legal act and an international treaty on tax issues; to the second - decisions of the Constitutional Court of the Russian Federation containing a legal position on tax issues, decisions of some international courts (the European Court of Human Rights, the Economic Court of the CIS) and regulatory explanations of the competent executive authorities (primarily the Ministry of Finance of the Russian Federation).

2. The dissertation proves the special system-forming role of the Tax Code of the Russian Federation in the system of sources of tax law in Russia and studies various concepts that suggest the rationale for its priority over other regulatory legal acts on taxes and fees. One of the most difficult is the question of the priority of the Tax Code of the Russian Federation over other federal laws on taxes and fees, which is de facto proclaimed in Art. 1 and 6 of this code. The author argues that the priority of the codified law over other laws in this case would correspond to the constitutionally significant principle of certainty of taxation. However, such a priority must be normatively sanctioned not only by the codified law itself, but also by an act of higher legal force, for example, a federal constitutional law.

3. The role of non-tax laws containing separate tax and legal norms in the regulation of tax relations is considered. Non-tax laws are understood as laws adopted not in accordance with the Tax Code of the Russian Federation (in the sense of Article 1 of the Code) and, in terms of their goals and content, are not aimed at directly regulating tax relations defined in Art. 2 codes.

Having established, on the basis of the analysis, significant contradictions in judicial practice regarding the application of tax rules contained in non-tax laws (the results of the analysis are summarized in comparative table No. 10 attached to the dissertation), the author proves the need to ensure the relative autonomy of the legislation on taxes and fees, since tax and legal norms in legislative acts of various industries destroys the unity of the mechanism of tax and legal regulation, does not comply with the principle of certainty of taxation, and ultimately may lead to a violation of the rights and freedoms of taxpayers.

4. The appendices to the dissertation (comparative tables No. 7, 8 and 9) systematize specific legal positions on tax issues contained in the decisions of the Constitutional Court of the Russian Federation and the European Court of Human Rights. On the basis of this systematization, it is proved that the legal provisions expressed in these legal positions, having the necessary normativity and binding nature, from an essential point of view, cannot be explained only as a result of the interpretation of a separate norm of the Constitution of the Russian Federation or the corresponding international convention. As a result of the analysis of the circumstances of a particular tax case, the applicable provisions of tax legislation, as well as the systematic interpretation of the norms of the Constitution of the Russian Federation (the relevant international convention), a new, unique legal provision appears, the legal significance of which should be reflected when building a theoretical model of the system of sources of Russian tax law.

1) agreements defining the general principles of taxation;

2) agreements for the avoidance of double taxation in respect of taxes on income and property; 3) agreements on avoidance of double taxation in certain areas of the economy (for example, in the field of transport); 4) agreements governing the collection of indirect taxes; 5) agreements on cooperation and mutual assistance in matters of compliance with tax laws; 6) non-tax agreements, which, along with other issues, regulate certain issues of tax law.

8. The paper substantiates that the decisions of supranational bodies (in particular, the decisions of the Interstate Council of the EurAsEC) on tax issues cannot currently be attributed to the sources of the tax law of the Russian Federation, since they cannot be applied directly within the legal system of Russia. Although they are, as a rule, binding on the member states of the relevant international organization, they are implemented through the adoption of special domestic regulations or the conclusion of separate international tax treaties. Also, these documents cannot be directly applied by the courts of the Russian Federation, since there is not yet the necessary constitutional, legal and other regulatory framework for this.

9. The paper classifies tax regulatory legal acts of executive authorities, identifies areas of tax relations that can be regulated by this

a variety of sources, as well as criteria for establishing the grounds and limits for delegating rule-making powers in the tax sphere from representative authorities to executive bodies. In particular, the following principles of such delegation of tax law-making powers are formulated: 1) delegation of powers in the field of taxes and fees is allowed only if such delegation does not contradict the Constitution (including the concept of "legally established tax"); 2) delegation must be carried out in accordance with the norms of the legislation on taxes and fees; 3) regulation by the executive body should be reduced to specifying the established legislative tax norms and cannot contradict or supplement them; 4) the delegating body exercises control over the delegated tax powers, since this power is retained by it as an element of its tax legal personality; 5) the authority that has received delegated tax powers is not entitled to subdelegate.

10. The author provides additional arguments in favor of the fact that illegal tax regulatory legal acts should be recognized by the courts as invalid (invalid) from the moment they enter into force (in the case of retroactivity, from the moment they begin to take effect); they should not entail any legal consequences other than those associated with their invalidity (recognition as invalid). The unequivocal consolidation of this provision at the legislative level will most effectively ensure the protection of the violated rights and legitimate interests of taxpayers and other participants in tax relations.

The course, according to the dissertation, hinders effective judicial protection of the rights of taxpayers, when the excess of their competence by the executive authorities is essentially accompanied by additional violations of the formal procedures for issuing and publishing legal acts.

All-Russian Scientific and Practical Conference "Constitutional Foundations for the Organization and Functioning of Public Power Institutions in the Russian Federation" (Ekaterinburg, April 2021, 2000);

The conclusions substantiated by the author regarding the regime of legal regulation of payments for compulsory insurance against accidents were taken into account when drawing up a complaint to the Constitutional Court of the Russian Federation on the violation of certain provisions of the Federal Law "On Compulsory Insurance against Industrial Accidents and Occupational Diseases" of constitutional rights and freedoms. The Constitutional Court of the Russian Federation, in the relevant ruling dated July 15, 2003 No. 311-0, noted a special legal regime for these payments, the establishment of which must comply with the constitutional requirements for legislative regulation any financial burden.

The introduction substantiates the relevance of the topic, defines the main goals and objectives of the study, considers the degree of development of the topic, characterizes the theoretical and methodological basis of the study, provides the main provisions submitted for defense, indicates the theoretical and practical significance of the results of the work, information about their approbation and implementation in scientific research. and practical activities.

The first chapter "The concept and types of sources of tax law in Russia" analyzes the properties of the sources of Russian tax law, taking into account which the definition of the corresponding concept is given, the necessity of dividing the sources of tax law into main and auxiliary ones is substantiated, the main types of these sources are considered.

In the first paragraph "Properties, concept and classification of sources of tax law" the author considers various general theoretical concepts of sources of law, from which the concept of sources as a result of normative activity, an officially defined form of external expression of the content of law, is taken as a basis. Based on the achievements of the theory of law, the work establishes the properties of sources of tax law, many of which are also characteristic of sources of other branches of law (formal certainty, legality, proper competence of the body that issued the legal act). At the same time, the features that distinguish the sources of tax law from the sources of other branches of law are also revealed. These features include: 1) a special scope of subject regulation inherent in the sources of tax law; 2) special intersystem links between sources of tax law and sources of budgetary law; 3) the backbone role of the Tax Code of the Russian Federation in the system of sources of tax law and the recognition of the exclusive competence of this codified act in the field of regulation of certain types of tax relations; 4) an abundance of auxiliary (interpretative, derivative) sources of tax law.

In the work, the subject of regulation of sources of tax law is defined as public power relations that develop between the state, taxpayers and other persons.

regarding: 1) the establishment of taxes and fees; 2) introduction of taxes and fees; 3) collection of taxes and fees (tax obligations); 4) exercising tax control, appealing acts of tax authorities, actions (inaction) of their officials and bringing to responsibility for committing a tax offense (tax procedural relations). Establishing the subject of tax and legal regulation allows you to most reliably determine the composition of the sources of tax law.

The author substantiates the thesis that the sources of tax law are closely related to budgetary and legal sources, while maintaining the independence of the subject of legal regulation. This relationship is manifested in the fact that the sources of budget law create the appropriate conditions for the implementation of the norms enshrined in the sources of tax law, and the sources of tax law, in turn, create conditions for the implementation of the norms of budget law. At the same time, the dissertation takes into account the special principles of the operation of sources of tax law in time (Article 5 of the Tax Code of the Russian Federation), which must be taken into account in order to ensure the mutual consistency of the norms of tax and budget law.

The paper proposes a classification of sources of tax law according to the criterion of establishing "new" or concretizing legal norms by one or another source. On the basis of this criterion, the sources of tax law are divided into two types: the main sources (sources containing "new" legal norms) and auxiliary (interpretative, derivative) sources of tax law, which contain norms and provisions that explain and specify tax and legal norms, enshrined in the main sources. The main sources of tax law in Russia include the provisions of the Constitution of the Russian Federation on taxes and fees, the Tax Code of the Russian Federation and other regulatory legal acts on taxes and fees (under certain conditions, and non-tax regulatory legal acts containing separate tax and legal norms), as well as international legal tax treaties. Auxiliary sources of tax law are proposed to include decisions of the Constitutional Court of the Russian Federation and some international courts containing legal positions on tax issues (in particular, the European Court of Human Rights and Economics).

of the CIS Court), as well as regulatory explanations of the competent executive authorities (Ministry of Finance of the Russian Federation).

The second paragraph "The main sources of tax law" is devoted to the study of the distinctive properties and classification of the main sources of tax law in Russia - regulatory legal acts on taxes and fees and international legal treaties that regulate tax relations.

The subparagraph “Regulatory legal acts on taxes and fees” defines a regulatory legal act as a source of tax law. This is recognized as a document adopted by an authorized body of state power or local self-government, containing a new rule of law (or changing or terminating the old rule) and regulating public relations for the establishment and introduction of taxes (fees, insurance premiums for mandatory state insurance, customs payments), tax obligations and tax procedural relations. Based on the constitutionally significant principle of establishing taxes by law, key attention is paid to the concept of legislation on taxes and fees. By virtue of the adopted wording of paragraph 1 of Art. 5 of the Tax Code of the Russian Federation, the Russian legislator, in addition to federal laws and laws of the subject of the Russian Federation on taxes and fees, attributed to the legislation on taxes and fees normative legal acts of representative bodies of local self-government that establish and introduce local taxes and fees in accordance with the code. Normative acts of the executive authorities are not included in the legislation on taxes and fees, however, they can be used in the regulation of tax relations under certain conditions: 1) they are issued only in cases expressly provided for by tax legislation; 2) they cannot change or supplement the tax legislation.

directly for the regulation of intrastate relations. On the basis of constitutional and legal provisions and the practice of their interpretation, the paper argues that international legal treaties on tax issues ratified by the Russian Federation should be applied directly (including by Russian courts) and they should be included in the sources of Russian tax law.

The paper emphasizes that international treaties on tax issues have a regulatory effect, as a rule, not only on the contracting parties (states), but also on taxpayers, as well as tax agents of these states, i.e., on individuals. International treaties that are the sources of tax law in Russia are proposed to be divided into six types: 1) agreements that define the general principles of taxation; 2) agreements for the avoidance of double taxation in respect of taxes on income and property; 3) agreements on avoidance of double taxation in certain areas of the economy (for example, in the field of transport); 4) agreements governing the collection of indirect taxes; 5) agreements on cooperation and mutual assistance in matters of compliance with tax laws; 6) non-tax agreements, which, along with other issues, regulate certain issues of tax law.

2) comparative table No. 2 "International agreements governing the taxation of international transportation";

3) comparative table No. 3 "Agreements on cooperation and mutual assistance in matters of compliance with tax laws"; 4) comparative table No. 4 "Consular conventions, including provisions on taxation"; 5) comparative table No. 5 "International agreements on the protection of foreign investments, including provisions on taxation"; 6) comparative table No. 6 "International agreements on the provision of

privileges and immunities containing provisions on taxation”.

The dissertation examines the special role of model conventions in the preparation and conclusion of international tax treaties. Thus, as a result of international cooperation, the OECD Model Convention on Income and Capital has been developed1 for the avoidance of double taxation with respect to taxes on income and capital, which is used by many states when concluding relevant bilateral agreements. Many tax treaties concluded by the Russian Federation with its main European trade and economic partners are very close in content to the specified Model Convention (taking into account its version as of the date of conclusion of the relevant treaty). This is important in the context of considering Russia's application for membership in the OECD. Let us note that the basic concepts and procedures fixed in the Model Convention are a matrix that determines the content of bilateral agreements concluded. This predetermines the ever-increasing importance of official comments on model conventions, which are developed by the relevant international organizations (in particular, the OECD).

Paragraph three "Auxiliary sources of tax law" contains an analysis of the decisions of the Constitutional Court of the Russian Federation, decisions of other higher courts, as well as clarifications from the competent executive authorities as auxiliary sources of tax law. It is emphasized that auxiliary sources of tax law should regulate tax relations in close relationship with the main sources, since they contain provisions specifying the rules enshrined in the main sources of tax law.

In the subparagraph “Decisions of the Constitutional Court of the Russian Federation and decisions of other higher judicial bodies”, the author provides additional arguments in favor of the point of view, according to which the system of sources of tax law in Russia should take into account the decisions of the Constitutional Court of the Russian Federation on tax issues.

1 Organization for Economic Cooperation and Development.

On the one hand, the adoption of a decision of the Constitutional Court of the Russian Federation, which recognizes a certain tax regulatory legal act as inconsistent with the Constitution of the Russian Federation, entails the exclusion of a specific legal norm (a group of interrelated legal norms) from the system of Russian tax law. Such a “cancelling” legal effect in itself makes it possible to compare the decision of the Constitutional Court of the Russian Federation with a normative legal act, since the legal position of the body of constitutional justice cannot be overcome by the adoption of a new legal act that would reproduce a tax norm recognized as unconstitutional. Moreover, the specificity of tax law is manifested in the fact that the recognition by the Constitutional Court of the Russian Federation of an unconstitutional norm (group of norms) that defines one of those specified in Art. 17 of the Tax Code of the Russian Federation of elements of taxation, entails the loss of the status of "legally established" for the corresponding tax. Thus, the recognition that, for example, the norms on the rates of a particular tax as inconsistent with the Constitution of the Russian Federation can paralyze the operation of all norms relating to this tax.

On the other hand, the analysis allows us to assert that in most cases the decisions and rulings of the Constitutional Court of the Russian Federation perform a concretizing and interpretive function, identifying the criteria for the constitutional interpretation of the norm contained in the normative legal act. At the same time, certain decisions of the Constitutional Court of the Russian Federation containing legal positions, but not the legal positions of the Court themselves, are the sources of tax law. Some of the legal norms governing tax relations and recognized by the Constitutional Court of the Russian Federation as inconsistent with the Constitution of the Russian Federation, as well as the legal positions of the Court on the interpreted norms on taxes and fees, are given by the author in the comparative tables No. 7 and 8 attached to the dissertation, respectively.

The paper emphasizes the importance of judicial practice formed by the Supreme Court and the Supreme Arbitration Court of the Russian Federation. In this regard, the author of the work proposes to supplement the legislation with a provision on the obligatory clarifications of the Plenum of the Supreme Arbitration Court of the Russian Federation (Supreme Court of the Russian Federation) for executive authorities - participants in the relevant legal relations. The expediency of this step, at least in the tax

sphere, is dictated by the desire to protect the rights and freedoms of taxpayers who, due to social, economic or legal reasons, were limited in their ability to exercise the right to judicial protection.

The dissertation focuses on the decisions of international courts. The attribution of the decisions of the European Court of Human Rights to the sources of law is beyond dispute. However, according to Art. 32 of the relevant Convention, the jurisdiction of the European Court is all matters relating to the interpretation and application of the provisions of the Convention and its Protocols. The legal positions of this international court on tax issues are given in the comparative table No. 9 attached to the dissertation. In practice, the weight of the decisions of the European Court is confirmed by the use of its interpretations by the Constitutional Court of the Russian Federation, the Supreme Arbitration Court of the Russian Federation, the Supreme Court of the Russian Federation when making their own decisions.

The subparagraph “Written explanations of the competent executive authorities” raises the problem of determining the legal regime for issuing these explanations and their legal nature. The paper notes that most of the explanations of the competent (financial and tax) authorities on tax issues cannot be attributed to the sources of tax law, since they represent only information about the current legislation on taxes and fees or express an opinion on the procedure for its application. However, in a number of cases, these acts, in terms of their content and goals, can, in the opinion of the dissertator, be qualified as auxiliary sources - normative explanations. This may take place if these acts contain specifying regulations addressed to an indefinite circle of persons, are officially published and really determine the content of law enforcement practice.

Federal Law No. 268-FZ of December 30, 2006 “On Amendments to Part One and Part Two of the Tax Code of the Russian Federation and Certain Legislative Acts of the Russian Federation”1 gives tax authorities the right to approve the forms of documents that they use in exercising their powers, and also the order of their completion, if a different procedure for the approval of these forms of documents

"SZRF. 2007. No. 1.4.1. Art. 31.

Commodity is not provided for by the code. For example, the orders of the Federal Tax Service of Russia approved the forms of a decision to refund (refuse to refund) the amount of VAT1, a decision to clarify a payment2, a decision to suspend an on-site tax audit3 and others. The paper substantiates the position that the legislator was not consistent enough in terms of granting the tax authorities the right to approve forms, since such orders (especially with regard to the procedure for filling out forms) may contain rules of law affecting the interests of the taxpayer. Due to the fact that the tax authorities, by virtue of Art. 4 of the Tax Code of the Russian Federation do not have the right to issue regulatory legal acts on taxes and fees, granting the right to approve forms may conflict with general approaches to the issue of separation of legal regulation and control functions in the field of taxation. The dissertation proceeds from the fact that the concentration of rule-making and control functions in one state body is unacceptable.

In the second chapter "Regulatory legal acts on taxes and fees as the main sources of tax law in Russia" the classification of regulatory legal acts on taxes and fees is carried out, in particular, the provisions of the Constitution of the Russian Federation on taxes and fees, the Tax Code of the Russian Federation and other acts of legislation on taxes are analyzed. and fees, non-tax laws containing tax and legal norms, as well as regulations of the executive authorities.

In the first paragraph "Norms of the Constitution of the Russian Federation on taxes and fees and their interpretation" the basic provisions of tax law, directly enshrined or arising from the Constitution of the Russian Federation, are analyzed: 1) the provision on the obligation to pay legally established taxes and fees (Article 57); 2) the principle of the unity of the economic space (Article 8) and the prohibition on establishing fiscal barriers to the free movement of goods, works, services and financial resources (Article 74); 3) provisions on the establishment of Fe-

1 Order of the Federal Tax Service of the Russian Federation crr April 18, 2007 No. ММ-3-03/ [email protected](ed. January 11, 2009) // Bull. normative acts of federal executive bodies. 2007.4 June.

2 Order of the Federal Tax Service of the Russian Federation dated April 2, 2007 No. MM-3-10/ [email protected]// Bull. normative acts of federal executive bodies. 2007. July 2.

3 Order of the Federal Tax Service of the Russian Federation dated March 6, 2007 No. ММ-3-06/ [email protected]// Bull. normative acts of federal executive bodies. May 14, 2007.

federal taxes (Article 71), as well as on the establishment of a tax system and general principles of taxation by federal laws (Part 3 of Article 75); 4) rules on the obligatory conclusion of the Government of the Russian Federation on draft laws on the introduction or abolition of taxes, exemption from their payment (Article 104) and the obligatory consideration in the Federation Council of federal laws adopted by the State Duma on issues of federal taxes and fees (Article 106); 5) the principles of equality of the constituent entities of the Russian Federation in adopting their own tax legislation (parts 1,2,4, article 5) and the independence of local governments in establishing local taxes and fees (article 132).

In paragraph two, "The Tax Code of the Russian Federation and other acts of legislation on taxes and fees," the issue of the priority of the Tax Code of the Russian Federation over other federal laws on taxes and fees is examined. Despite the fact that the establishment of the priority of a codified act over other federal laws and normative legal acts was recognized by the Constitutional Court of the Russian Federation under certain circumstances not contradicting the Constitution of the Russian Federation1, this problem remains unresolved from the point of view of a systematic approach. In particular, some scientists note that the priority enshrined in the Tax Code of the Russian Federation over other federal laws adopted after its entry into force does not correspond to one of the generally recognized legal principles, according to which the subsequent law cancels the previous law2. The paper substantiates that the non-recognition of the priority of the codified act in this case negatively affects the stability of the legal regulation of tax relations.

The author substantiates some key principles of regional legislation on taxes and fees, which, in appropriate cases, can be adopted in development of the provisions of the Tax Code of the Russian Federation. These include, in particular: 1) the establishment of institutions, concepts, terms that are common for all subjects of the Russian Federation (Article 11

1 Resolution of the Constitutional Court of the Russian Federation of June 29, 2004 No. 13-P on the case of checking the constitutionality of certain provisions of articles 7, 15, 107, 234 and 450 of the Code of Criminal Procedure of the Russian Federation // СЗ RF. 2004. No. 27. Art. 2804.

2 See, for example: Andreeva M.V. Legal positions of the Constitutional Court of the Russian Federation on the procedure for the entry into force of acts of legislation on taxes and fees // Tax law in the decisions of the Constitutional Court of the Russian Federation in 2003. According to the materials of the International. scientific-practical. conf. M., 2004. S. 132-133.

Tax Code of the Russian Federation), as well as the main principles of legislation on taxes and fees (Article 3 of the Tax Code of the Russian Federation); 2) the establishment of the same requirements for the regions in the field of tax discipline and legal prerequisites for the formation of an equal tax burden in the constituent entities of the Russian Federation; 3) limitation of the effect of laws on taxes and fees of a subject of the Russian Federation by its tax jurisdiction, determined mainly by the territorial criterion (i.e., within the boundaries of the corresponding subject of the Russian Federation). Similar approaches are also used to determine the principles of legal regulation carried out by the representative bodies of municipalities in the field of taxation.

In the third paragraph "Non-tax laws containing tax-legal norms, and their place in the system of sources of tax law" the problem of the correlation of the so-called sectoral and tax laws is raised. The paper substantiates that the inclusion of tax rules in non-tax laws can hypothetically take place, but only if the formal requirements of the Constitution of the Russian Federation and Art. 5 of the Tax Code of the Russian Federation, namely: the tax legal norm must be contained in a federal law (Article 75), adopted by the State Duma (Article 105), necessarily considered by the Federation Council (Article 106), signed and promulgated by the President (Article 107 ); At the same time, the law must be published and put into effect within a special time frame and in the manner specified in Art. 5 of the Tax Code of the Russian Federation. From a formal point of view, the presence in the law regulating non-tax relations of the norms of tax law is not the reason for the legal inconsistency of such a law. Sometimes the inclusion of tax rules in non-tax laws is caused by the desire of the legislator to fully regulate interrelated issues (for example, tax and budgetary law). At the same time, the paper substantiates that the constitutionally significant principle of the certainty of taxation focuses on the formation of an autonomous, relatively separate system of legislation on taxes and fees. In light of this, the inclusion of tax-legal norms in non-specialized, i.e., non-tax, laws is regarded as inconsistent with this principle.

In paragraph four "Regulatory acts of executive authorities on taxes and fees" regulatory legal acts

executive authorities are subdivided into acts of bodies of general competence (the Government of the Russian Federation, the President of the Russian Federation, the highest executive authorities of the constituent entities of the Russian Federation and executive bodies of local self-government) and acts of bodies of special competence (for example, the Ministry of Finance of the Russian Federation). The paragraph deals with the issues of delegation of tax law-making powers from representative bodies to executive authorities. The author identified the following features of such delegation. The legislator sometimes has the right to delegate to the executive body the authority to regulate issues related to taxation, but only taking into account the following: 1) the essential elements of taxation must be established by law, the regulation of these issues by the executive body is prohibited; 2) normative regulation of the executive body is reduced to detailing and specifying the established legislative tax and legal norms. In particular, such specification may relate to the technical aspects of the execution of a tax obligation, without affecting its essence; 3) normative regulation of the executive body is carried out on the basis of the tax law and cannot contradict it, supplement it; 4) the representative body exercises control over the executive body, since the delegated tax authority is retained by the delegating body as an element of its tax legal personality; 5) the executive body is not entitled to carry out sub-delegation in relation to tax rule-making powers.

The third chapter "Basic principles of operation of normative legal acts on taxes and fees" is divided into two paragraphs.

Paragraph one "Problems of the operation of regulatory legal acts on taxes and fees in time, in terms of persons and in space" aims to consider the problem of sources of tax law in dynamics, i.e. from the point of view of their action in the context of temporal, spatial and subjective personal factors. Analyzing the identified problems, the author provides additional arguments confirming that the tax legislator allowed confusion between the concepts of entry into force and the beginning of the operation of a regulatory legal act on taxes and fees. D. N. Bahrakh rightly points out: “When studying the effect of a norm in time, it is important to distinguish between two circumstances: time,

during which the norm is in force (terms of its calendar validity); the limits of its action in time, that is, to what facts, relations it extends.

Analysis of the norms of Art. 5 of the Code, shows that a more precise title of the article should include an indication not only of the effect of acts in time, but also of their entry into legal force. The paper critically assesses judicial practice that allows ignoring the requirements of Art. 5 of the Tax Code of the Russian Federation upon the entry into force of laws on taxes and fees regulating the so-called transitional periods (adopted in connection with a comprehensive change in the regulation of certain tax relations). References to the “one-time” application of such laws, as we are convinced, are untenable, especially since there are no grounds to deny the legal nature of the act even in the case of its one-time application by a specific taxpayer.

The paper considers the judicial practice of declaring by the court a normative act on tax and collection invalid or invalid for the future. It is emphasized that the full restoration of the violated rights and legitimate interests of participants in tax relations is possible in the event that an illegal act is excluded from legal regulation from the moment it enters into force (in cases of retroactivity of the act, from the moment it begins to operate). The announcement of normative legal acts on taxes and fees invalid (invalid) for the future stimulates the growth of violations of the rights and interests of participants in tax relations. There is a contradiction in the extension of the force (operation) of illegal norms by the court: on the one hand, by decision of the court, the norm loses its force (ceases action) due to its illegality, and on the other hand, the norm, by decision of the same court, continues to have force (continues to regulate relations ) illegally. It is substantiated that illegal tax regulations cannot and should not have legal force (should not be valid) from the moment they are adopted, therefore, they should not entail any legal consequences other than those related to their nullity (recognition as invalid). The consolidation of this provision at the legislative level will allow, according to the author, the most

1 BahrakhD. N. Action of the legal norm in time // Sov. state and law. 1991. No. 2. S. 12.

more effectively ensure the protection of the violated rights and legitimate interests of participants in tax relations.

In order to establish and evaluate the subject-personal sphere of action of tax regulatory legal acts, an analysis is made of such aspects of their action in terms of a circle of persons that are manifested in the requirements of equal and universal taxation. In particular, in practice, this problem often manifested itself when individual tax incentives were fixed in the tax legislation (or also benefits that were formally calculated for an indefinite circle of payers, but due to deliberately provided special conditions for their receipt, actually extending only to one particular taxpayer) .

When considering the spatial and territorial aspects of the operation of the sources of tax law, the author, in particular, substantiates that the regulatory legal acts on taxes and fees operate not only in the space legally recognized as the territory of Russia. The expansion of the spatial scope of these acts takes place at the expense of the continental shelf and the exclusive economic zone, in respect of which the Russian Federation has sovereign rights.

In paragraph two "Competition of normative legal acts on taxes and fees and rules for resolving emerging conflicts" the following principles of priority are singled out, applied in the competition of normative legal acts on taxes and fees: 1) normatively established priority (including the priority of a codified act); 2) industry priority; 3) the priority of a special norm over a general one; 4) the priority of a later adopted act.

As a normatively established priority, the rules of the hierarchy of sources are considered: the priority of the Constitution of the Russian Federation over all normative legal acts; priority of normative legal acts of representative bodies of the Russian Federation over normative legal acts of representative bodies of constituent entities of the Russian Federation and local self-government, as well as before acts of executive bodies of the Russian Federation, constituent entities of the Russian Federation and other similar rules. When considering the issue of sectoral priority, examples of the use of institutions, concepts and terms in a special sense established in the Tax Code of the Russian Federation are analyzed (as is known, in accordance with Article 11 of the Tax Code of the Russian Federation, the institutions, concepts and terms of civil, family and other

branches of the legislation of the Russian Federation are applied in the sense in which they are used in these branches of legislation, unless otherwise provided by the code).

In conclusion, the dissertation summarizes certain results of the study and points out some of the most pressing problems that require immediate solutions.

The main provisions of the dissertation research are reflected in the following published works:

1. Normative legal act as a source of tax law of the Russian Federation // Taxes and financial law. 2007. No. 9. S. 215-232.

2. Recognition of a regulatory legal act on taxes and fees as invalid or invalid // Taxes and financial law. 2008. No. 1. S. 288-293.

3. By-laws as sources of tax law // Laws of Russia: experience, analysis, practice. 2007. No. 11. P. 122-125.

Other scientific publications:

4. Limits of delegation in the tax law of rule-making powers from representative bodies to executive authorities // Taxes and taxation. 2008. March. pp. 43-48.

5. The status of the contribution to the off-budget fund // Constitutional bases for the organization and functioning of public authorities in the Russian Federation: Materials of All Russia. scientific-practical. conf. April 20-21, 2000 Yekaterinburg, 2001, pp. 457-461.

6. Taxation of material benefits // Yuzhno-Uralskiy jurid. vestn. 2001. No. 2. S. 80-81.

7. Advance payments for income tax // Business. Management. Right. 2002. No. 1. S. 32-33.

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CONTENT OF THE THEsis

INTRODUCTION

CHAPTER 1. THE CONCEPT AND TYPES OF SOURCES OF TAX LAW

§ 1. Properties, concept and classification of sources of tax law.

§2. The main sources of tax law.

2.1. Regulatory legal acts on taxes and fees.

2.2. International legal treaties.

§3. Auxiliary sources of tax law.

3.1. Decisions of the Constitutional Court of the Russian Federation and decisions of other higher judicial bodies.

3.2. Written explanations of the competent executive authorities.

CHAPTER 2. NORMATIVE LEGAL ACTS ON TAXES AND FEES AS MAIN SOURCES OF TAX LAW

§one. Norms of the Constitution of the Russian Federation on taxes and fees and their interpretation.

§2. The Tax Code of the Russian Federation and other acts of legislation on taxes and fees.

§3. Non-tax laws containing tax legal norms and their place in the system of sources of tax law.

§4. Regulatory legal acts of executive authorities on taxes and fees.

CHAPTER 3. MAIN PRINCIPLES

LEGAL ACTS ON TAXES AND FEES.

§ 1. Problems of the operation of normative legal acts on taxes and fees in time, in a circle of persons and in space.

§2.Competition of regulatory legal acts on taxes and fees and rules for resolving emerging conflicts.

INTRODUCTION OF THE DISSERT

on the topic "Sources of tax law of the Russian Federation: concept, problems of classification, basic principles of action"

Relevance of the research topic. Over the past decades, the Russian Federation has undergone fundamental changes in the economy, which led to the formation of a fundamentally new tax system in the country. In order for this system to be effective, it is necessary to have adequate legal regulation by coordinated norms enshrined in various tax and legal sources.

At the first stage of the formation of the Russian tax system, detailed regulation of the procedure for calculating and paying taxes and fees was carried out by separate laws and numerous by-laws. Its further improvement was accompanied by a trend towards limiting the rule-making functions of the executive authorities and strengthening the principle of the rule of law in tax relations. The current Tax Code of the Russian Federation (TC RF) consolidated the basic principles of taxation, determined the composition of the legislation on taxes and fees, the priority of international treaties over the norms of national legislation on taxes and fees. However, the regulation of tax relations needs to be improved. This is dictated, in particular, by the fact that the list of sources of tax law at the legislative level remains not clearly defined, the problems of their classification are not fully developed in scientific terms, and the principles of their operation are often interpreted in very different ways in law enforcement practice.

At the present stage, decisions of international courts (in particular, the European Court of Human Rights), decisions and rulings of the Constitutional Court of the Russian Federation (CC RF), decisions of the Plenums of the Supreme Arbitration Court and the Supreme Court of the Russian Federation are essential for the regulation of tax relations. It seems that there is a need for an additional analysis of the legal nature of these legal acts in the context of the problems of the formation of the system of sources of tax law in Russia.

The interpretation of tax legal norms often causes intractable disputes, which emphasizes the importance for the regulation of tax relations of official clarifications from financial and tax authorities. Practice shows that sometimes these clarifications are intended for specific taxpayers, and sometimes they are considered suitable for an indefinite circle of people and are subsequently published in various print and electronic publications, having a significant impact on the actions and decisions of business entities related to the procedure for calculating and paying taxes. It seems that within the framework of the theory of sources of tax law, this issue cannot be ignored.

Taking into account the noted circumstances, the study of theoretical and practical issues of the formation of the system of sources of tax law in the Russian Federation seems to be not only relevant, but also necessary.

Goals and objectives of the dissertation work. The objectives of this study are a comprehensive analysis of the key problems of the formation of the system of sources of tax law in the Russian Federation, the formulation of definitions for the concepts used, the development of a classification of tax and legal sources, and an analysis of the basic principles of their operation.

To achieve this goal, the following tasks were defined:

Based on the generalization of the achievements of modern legal science, determine the range of sources of modern Russian tax law, focusing on debatable issues and finding an answer to them;

Carry out a comprehensive analysis of the system of sources of Russian tax law, determine its elements and propose a classification of these sources;

To identify the role of decisions of international courts (in particular, the European Court of Human Rights), definitions and decisions of the Constitutional Court of the Russian Federation, decisions of the Plenums of the Supreme Arbitration Court and the Supreme Court of the Russian Federation in the regulation of tax relations;

Establish the legal nature of the clarifications of the financial and tax authorities in the context of the problems of the formation of the system of sources of tax law in the Russian Federation; determine the legal limits for the delegation of rule-making powers in the tax sphere from representative authorities to executive bodies; carry out the classification of international treaties on taxation issues, identify and justify their significance as an element of the system of sources of tax law of the Russian Federation;

To study the general principles of the operation of the sources of tax law in Russia in time, in space and in a circle of persons.

The theoretical basis of the study was the works of such Russian scientists of the pre-revolutionary period as E.V. Vaskovskiy, N.M. Korkunov, K.I. Malyshev, F.V. Taranovsky, G.F. Shershenevich, I.I. Yanzhul. Monographs, textbooks and articles on the theory of state and law, prepared, in particular, by such authors as: S.S. Alekseev, A.B. Vengerov, C.JI. Zivs, V.M. Korelsky, S.A. Komarov, R.Z. Livshits, B.C. Nersesyants, A.B. Malko, M.N. Marchenko, A.V. Mitskevich,

V.D. Perevalov, A.S. Pigolkin, Yu.A. Tikhomirov, V.A. Tolstik, A.F. Shebanov. The authors in the field of financial and tax law, whose works formed the basis of this dissertation research, include K.S. Belsky, A.V. Bryzgalina, D.V. Vinnitsky, G.A. Gadzhiev, O.N. Gorbunov, E.Yu. Grachev, A.V. Demina. C.B. Zapolsky, M.F. Ivliev, M.V. Karasev, Yu.A. Krokhpnu, M.V. Kustov, I.I. Kucherova, N.P. Kucheryavenko, O.A. Nogin, P.S. Patsurkivsky,

S.G. Pepelyaeva, G.V. Petrov, G.P. Tolstopyatenko, N.I. Khimichev, H.A. Shevelev and many other scientists. Some aspects considered in this paper were studied by scientists in the framework of works on problems of other branches of Russian and international law (D.N. Bakhrakh, V.S. Belykh, S.K. Zagainova, G.V. Ignatenko, S.Yu. Marochkin, M. S. Salikov, V. I. Slom, S. V. Chernichenko, V. V. Yarkov).

The degree of development of the research topic. It is difficult to find a work on tax law issues in Russian legal science, in which, to one degree or another, the problems of the sources of this area of law would not be affected. However, many key issues in the theory of sources of tax law in the Russian Federation are still undeveloped, and complex studies of the identified scientific problems have clearly not been enough. At the same time, one cannot fail to name a number of Ph.D. theses, in which some of the aspects of the chosen topic were previously touched upon and considered. Among these works, in particular, are the works of: M.V. Andreeva "The effect of tax legislation in time", T.A. Bondarenko "The effect of legislative acts on taxes and fees in time, space and circle of persons", S.A. Notin “Judicial practice in the system of sources of tax law (on the example of the EU and the Russian Federation)”, S.G. Oleinikova "Sources of tax law of the Russian Federation", N.I. Chuzhikova "Sources of financial law". An integrated approach to the issues under study is most clearly expressed in the last two works (this already follows from their titles). However, the work of S.G. Oleinikova is mainly devoted to the analysis of acts of legislation on taxes and fees, and the topic designated by N.I. Chuzhikova, predetermined the general consideration of the widest range of issues related to the sources of financial law in Russia as a whole. Thus, despite the fact that Russian scientists paid some attention to the problems of sources of tax law, a comprehensive study of the issues raised in this work was not carried out.

Scientific novelty of the research. The paper formulates the following main provisions, which have scientific novelty and are submitted for defense:

1. The practical and theoretical significance of dividing the sources of tax law into two key groups is substantiated: 1) the main sources of tax law; 2) auxiliary (interpretative, derivative) sources of tax law. The first group of sources is proposed to include a legal act and an international treaty on tax issues; to the second - decisions of the Constitutional Court of the Russian Federation containing a legal position on tax issues, decisions of some international Courts (the European Court of Human Rights, the Economic Court of the CIS) and regulatory explanations of the competent executive authorities (primarily the Ministry of Finance of the Russian Federation).

2. The dissertation proves the special system-forming role of the Tax Code of the Russian Federation in the system of sources of tax law in Russia and studies various concepts that suggest the rationale for its priority over other regulatory legal acts on taxes and fees. One of the most difficult is the question of the priority of the Tax Code of the Russian Federation over other federal laws on taxes and fees, which is de facto proclaimed in Articles 1 and 6 of this code. The author argues that the priority of the codified law over other laws in this case would correspond to the constitutionally significant principle of certainty of taxation. However, such a priority must be normatively sanctioned not only by the codified law itself, but also by an act of higher legal force, for example, a federal constitutional law.

3. The role of non-tax laws containing separate tax and legal norms in the regulation of tax relations is considered. Non-tax laws are understood as laws adopted not in accordance with the Tax Code of the Russian Federation (in the sense of Article 1 of the Code) and, in terms of their goals and content, are not aimed at directly regulating tax relations defined in Article 2 of the Code.

Having established, on the basis of the analysis, significant contradictions in judicial practice regarding the application of tax rules contained in non-tax laws (the results of the analysis are summarized in Table No. 10 attached to the thesis), the author proves the need to ensure the relative autonomy of the legislation on taxes and fees, since -legal norms in legislative acts of various industries destroys the unity of the mechanism of tax and legal regulation, does not comply with the principle of certainty of taxation, and ultimately may lead to a violation of the rights and freedoms of taxpayers.

4. The appendices to the dissertation (comparative tables No. 7, 8 and 9) systematize specific legal positions on tax issues contained in the decisions of the Constitutional Court of the Russian Federation and the European Court of Human Rights. On the basis of this systematization, it is proved that the legal provisions expressed in these legal positions, having the necessary normativity and binding nature, from an essential point of view, cannot be explained only as a result of the interpretation of a separate norm of the Constitution of the Russian Federation or the corresponding international convention. As a result of the analysis of the circumstances of a particular tax case, the applicable provisions of tax legislation, as well as the systematic interpretation of the norms of the Constitution of the Russian Federation (the relevant international convention), a new, unique legal provision appears, the legal significance of which should be reflected when building a theoretical model of the system of sources of Russian tax law.

5. The paper provides arguments in favor of fixing the status of sources of tax law behind the decisions of the Plenums of the Supreme Arbitration Court of the Russian Federation and the Supreme Court of the Russian Federation in the field of taxation. Despite the debatability of this issue, it is argued that the formal non-bindingness of these acts for executive authorities (in particular, the tax authorities and the Ministry of Finance of the Russian Federation) provokes futile litigation, and can also lead to massive violation of the rights and freedoms of taxpayers who find themselves due to social, economic or legal reasons, unable to resort to judicial protection of their subjective rights.

6. The dissertation examines the system of international treaties of the Russian Federation containing tax and legal norms. It is proposed to divide international treaties that are sources of Russian tax law into six groups: 1) agreements that define the general principles of taxation; 2) agreements for the avoidance of double taxation in respect of taxes on income and property; 3) agreements on the avoidance of double taxation in certain areas of the economy (for example, in the field of transport); 4) agreements governing the collection of indirect taxes; 5) agreements on cooperation and mutual assistance in matters of compliance with tax laws; 6) non-tax agreements, which, along with other issues, regulate certain issues of tax law.

7. The author argues the thesis that the Fundamentals of Legislation of the Eurasian Economic Community (EurAsEC), including the Fundamentals of Tax Legislation of the EurAsEC, which are currently being developed, by their legal nature, despite the established features of their adoption, are multilateral international treaties. Fundamentals of the tax legislation of the EurAsEC in their subject of regulation should determine the general principles of taxation in the member states of the EurAsEC.

8. The paper substantiates that the decisions of supranational bodies (in particular, decisions of the Interstate Council of the EurAsEC) on tax issues cannot currently be attributed to the sources of the tax law of the Russian Federation, since they cannot be applied directly within the legal system of Russia. Although they are, as a rule, binding on the member states of the relevant international organization, they are implemented through the adoption of special domestic regulations or the conclusion of separate international tax treaties. Also, these documents cannot be directly applied by the courts of the Russian Federation, since there is no necessary constitutional, legal and other regulatory framework for this.

9. The paper classifies legal and regulatory tax acts executive authorities, identifies areas of tax relations* that can be regulated by this type of sources, and also provides criteria for establishing the grounds and limits for delegating rule-making powers in the tax sphere from representative authorities to executive authorities. In particular, the following principles of such delegation of tax law-making powers are formulated: 1) delegation of powers in the field of taxes and fees is allowed only if such delegation does not contradict the Constitution (including the concept of "legally established tax"); 2) delegation must be carried out in accordance with the norms of the legislation on taxes and fees; 3) regulation by the executive body is reduced to specifying the established legislative tax norms and cannot contradict or supplement them; 4) the delegating body exercises control over the delegated tax powers, since this power is retained by it as an element of its tax legal personality; 5) the authority that has received delegated tax powers is not entitled to carry out sub-delegation.

10. The author provides additional arguments in favor of the fact that illegal tax regulatory legal acts should be recognized by the courts as invalid (invalid) from the moment they enter into force (in the case of retroactivity, from the moment they begin to take effect); they should not entail any legal consequences, except for those associated with their invalidity (recognition as invalid). The unequivocal consolidation of this provision at the legislative level will most effectively ensure the protection of the violated rights and legitimate interests of taxpayers and other participants in tax relations.

11. The author reveals the functional role of the written explanations of the Ministry of Finance and the Federal Tax Service of Russia (formerly the Ministry of Taxation of Russia) in the context of the system of sources of tax law. It is proved that in cases where these acts (clarifications) have signs of normative legal acts in their content, individual formal violations committed during their publication should not be considered as circumstances that prevent the taxpayer (another interested participant in tax relations) from challenging them in the manner established for tax regulations of the corresponding level. A different approach, according to the author of the dissertation, hinders the effective judicial protection of the rights of taxpayers, when the excess of their competence by the executive authorities is essentially accompanied by additional violations of the formal procedures for issuing and publishing legal acts.

Theoretical and practical significance of the research. The scientific provisions substantiated in the framework of this dissertation can be taken into account in the further development of the theory of sources of Russian tax law. The conclusions and suggestions contained in the work can be used to improve the legislation on taxes and fees, namely, some provisions of the first part of the Tax Code of the Russian Federation. Separate recommendations and proposals can be implemented in the preparation of draft resolutions of the Plenums of the Supreme Arbitration Court and the Supreme Court of the Russian Federation on the application of legislation on taxes and fees. The research materials can also be used in the process of teaching financial and tax law courses, in the preparation of teaching aids, educational and methodological complexes and tasks on tax law issues.

Approbation of the research results. The dissertation was prepared at the Department of Financial Law of the Ural State Law Academy, where it was reviewed and discussed. The provisions of the work were used by the author when conducting practical classes, lecturing in the courses of financial and tax law. The provisions of the dissertation were used in the preparation of scientific publications and reports made, in particular, at the following scientific and practical conferences:

the Fifth International Scientific and Practical Conference "Tax Law in Decisions of the Constitutional Court of the Russian Federation in 2007" (Moscow, April 11-12, 2008);

International Correspondence Scientific and Practical Conference “Culture. Education. Law” (Yekaterinburg, May 2008).

The conclusions substantiated by the author regarding the regime of legal regulation of payments for compulsory insurance against accidents were taken into account when drawing up a complaint to the Constitutional Court of the Russian Federation on the violation of certain provisions of the Federal Law "On Compulsory Insurance against Industrial Accidents and Occupational Diseases" of constitutional rights and freedoms. The Constitutional Court of the Russian Federation in the relevant ruling dated July 15, 2003 No. 311-0 noted a special legal regime for these payments, the establishment of which must comply with the constitutional requirements for the legislative regulation of any financial burdens.

DISSERT CONCLUSION

majoring in "Administrative law, financial law, information law", Krivykh, Irina Anatolyevna, Yekaterinburg

CONCLUSION

This work contains some generalizations of the achievements of modern legal science in the interpretation of the properties and classification schemes of sources of tax law, an analysis of the main problems related to determining the composition of sources of tax law, the specifics of their legal regime. Particular attention is focused on discussion questions and the search for answers to them.

The classification of sources of tax law into main and interpretative ones allowed us to analyze these groups of sources. The study of interpretive sources, in turn, made it possible to analyze and substantiate the inclusion in their composition of the jurisprudence of the European Court of Human Rights and the Economic Court of the CIS. Legislative consolidation of the recognition of these acts as sources of national tax law will remove discussions on the need to study international judicial practice on taxes and fees, the need to accept the conclusions made by international courts regarding the general principles of the operation of tax and legal norms, while improving the legislation on taxes and fees in RF.

Despite the controversial inclusion of international treaties in the sources of Russian tax law, the author identified their features and carried out a classification. It seems that going beyond the scope of the study is exclusively

1 Sukhov E.V. Legal conflicts and ways to resolve them. Dis. cand. legal Sciences. N.Novgorod. 2004, p. 124

2 Ibid. P. 121. of the tax regulatory legal act, the analysis of the international treaty as a source of tax law made it possible to conduct a comprehensive study of the problems related to the topic of the work, and to outline their solution.

The paper reveals the need for regulatory improvement of issues on the limits of delegation of rule-making powers in the tax sphere from representative authorities to executive bodies. Legislative consolidation of the limits of delegation will allow participants in tax relations to more accurately assess numerous by-laws in terms of their compliance with the requirements of the law.

Having studied the features of the action in time, in terms of the circle of persons and in space of regulatory legal acts on taxes and fees, the author gives additional arguments in favor of the fact that illegal tax regulatory legal acts should be recognized by the courts as invalid (invalid) from the moment they enter into force (in in the case of retroactivity - from the moment the action began); they should not entail any legal consequences, except for those associated with their nullity (recognition as invalid). Fixing this provision at the legislative level will most effectively ensure the protection of the violated rights and legitimate interests of taxpayers and other participants in tax relations.

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156. Sh. Regulatory legal acts, international treaties, court decisions

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159. Federal Constitutional Law of April 28, 1995 No. 1-FKZ "On Arbitration Courts in the Russian Federation" (Rossiyskaya Gazeta. 1995. No. 93).

160. Federal Constitutional Law of December 31, 1996 No. 1-FKZ “On the Judicial System of the Russian Federation” (Rossiyskaya Gazeta. 1997. No. 3).

161. Tax Code of the Russian Federation (Legal System Consultant Plus).

162. Civil Code of the Russian Federation (Legal System Consultant Plus).

163. Law of the Russian Federation of March 21, 1991 No. 943-1 "On the tax authorities of the Russian Federation" (Vedomosti SND i VS RSFSR. 1991. No. 15. Art. 492).

164. Law of the Russian Federation of December 27, 1991 No. 2118-1 "On the fundamentals of the tax system in the Russian Federation" (Rossiyskaya Gazeta. 1992. No. 56).

165. the federal law dated August 28, 1995 No. 154-FZ "On the general principles of organizing local self-government in the Russian Federation" (Collected Legislation of the Russian Federation. 1995. No. 35. Art. 3506).

166. Federal Law No. 69-FZ of December 21, 1994 "On fire safety"(Rossiyskaya gazeta. 1995. No. 3).

167. Decree of the Government of the Russian Federation of February 12, 2001 No. 100 “On the procedure for declaring as uncollectible and writing off arrears and debts on penalties for federal taxes and fees” (Collected Legislation of the Russian Federation. No. 8. 2001).

168. Resolution of the Constitutional Court of the Russian Federation of October 31, 1995 No. 12-P on the case of the interpretation of Article 136 of the Constitution of the Russian Federation (Rossiyskaya Gazeta. 1995. No. 217)

169. Resolution of the Constitutional Court of the Russian Federation of October 8, 1997 No. 13-P on the case of checking the constitutionality of the Law of St. land tax in St. Petersburg in 1995 ”(Rossiyskaya gazeta. 1997. 21 Oct. No. 204).

170. Ruling of the Constitutional Court of the Russian Federation of November 11, 1997 No. 16-P on the case of checking the constitutionality of Article 11.1 of the Law of the Russian Federation "On the State Border of the Russian Federation" (Collected Legislation of the Russian Federation. 1997. No. 46. St. 5339).

171. Resolution of the Constitutional Court of the Russian Federation of June 16, 1998 No. 19-P on the case of the interpretation of certain provisions of Articles 125, 126 and 127 of the Constitution of the Russian Federation (Rossiyskaya Gazeta. 1998. No. 121).

172. OAO Far Eastern Shipping Company and OOO Commercial Company Balis (Collected Legislation of the Russian Federation. 2003. 28 July No. 30. Art. 3100).

173. Ruling of the Constitutional Court of the Russian Federation of June 13, 2006 No. 274-0 “According to the complaints of the citizens of Akhalbedashvili Mamuka Guramovich and Moldovanov Konstantin

174. Viktorovich to the violation of their constitutional rights by subparagraph 10 of paragraph 1 of Article 333.19 of the Tax Code of the Russian Federation (Bulletin of the Constitutional Court of the Russian Federation. 2006. No. 6).

175. Resolution of the Plenum of the Supreme Court of the Russian Federation of October 31, 1995 No. 8 "On Certain Issues of the Application by the Courts of the Constitution of the Russian Federation in the Administration of Justice" (Bulletin of the Supreme Court of the Russian Federation. 1996. No. 1).

176. Decree of the Plenum of the Supreme Court of the Russian Federation of November 29, 2007 No. 48 “On the practice of consideration by courts of cases on challenging normative legal acts in whole or in part” (Rossiyskaya Gazeta. 2007. December 8. No. 276).

177. Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation of February 28, 2001 No. 5 "On some issues of application of the first part of the Tax Code of the Russian Federation" (Economy and Law. 2001. No. 6).

178. Information letter of the Supreme Arbitration Court of the Russian Federation dated January 18, 2001 No. 58 "Review of the practice of resolving disputes by arbitration courts related to the protection of foreign investors" (Bulletin of the Supreme Arbitration Court of the Russian Federation. 2001. No. 3).

179. Information letter of the Supreme Arbitration Court of the Russian Federation dated December 10, 1996 No. 9 “Overview of judicial practice in the application of legislation on value added tax” (Bulletin of the Supreme Arbitration Court of the Russian Federation. 1997. No. 3).

180. Information letter of the Supreme Arbitration Court of the Russian Federation dated November 14, 1997 No. 22 “Overview of judicial practice in the application of legislation on income tax” (Bulletin of the Supreme Arbitration Court of the Russian Federation. 1998. No. 1).

181. Information letter of the Supreme Arbitration Court of the Russian Federation dated May 31, 1999 No. 41 “Review of the practice of application by arbitration courts of legislation regulating the features of taxation of banks” (Bulletin of the Supreme Arbitration Court of the Russian Federation. 1999. No. 7).

182. comparison table No. 1 International agreements establishing general principles of taxation

183. International agreements governing the taxation of international transport

184. Italian companies engaged in transportation by sea are exempt in the Russian Federation from taxes on income, from all taxes on property related to the above activities.

185. Income from international transport derived by sea or air transport enterprises may be taxable only in the Contracting State in which these enterprises have their permanent residence.

186. Agreements on cooperation and mutual assistance in matters of compliance with tax laws

187. Comparative Table No. 4 Consular Conventions Including Taxation Provisions

188. International agreements for the protection of foreign investments, including provisions on taxation

189. International agreements on granted privileges and immunities, containing provisions on taxation1. Signature date1. Name

190 Contracting States

191. Tax relations regulated by the norms of the agreement December 15, 1925 May 1940 July 22, 1944

192. Treaty between the USSR and Norway on trade and navigation

193. Treaty on trade and navigation between the USSR and Yugoslavia

194. Articles of the Agreement of the International Monetary Fund1. USSR and Norway USSR and Yugoslavia

195. Both Parties agree to equally accord each other most favored state treatment in respect of export duties or other fees or taxes levied on the export of goods.

196. Agreement on trade and the USSR and Denmark navigation between the USSR and Denmark February 20 Agreement on trade and the USSR and Romania 1947 navigation between 1. USSR and Romania July 15, 1947

197

199. Treaty on trade and the USSR and the People's Republic of Bulgaria navigation between

200. Vessels of each of the Contracting Parties, their crews, passengers and cargo will be granted maximum

201. The Permanent Representatives of the Members of the Council of Europe, in the performance of their duties and when traveling to and from meetings, shall enjoy the privileges, immunities and facilities normally accorded to the diplomatic envoys of the country concerned.

202. The Contracting Parties grant each other the most favored nation treatment in everything related to customs matters, in particular with respect to: duties, taxes and other charges.

203. The Contracting Parties grant each other the most favored nation treatment in all matters relating to customs matters, in particular with respect to: duties, taxes and other charges.

204. The Contracting Parties grant each other the most favored nation treatment in all matters relating to customs matters, in particular with respect to: duties, taxes and other charges.

205. The Contracting Parties shall grant each other the most favored nation treatment in all matters relating to customs matters, in particular in respect of duties, taxes and other charges.

206. Mutual deliveries of weapons, military equipment and other material resources intended for the Armed Forces of the Parties are carried out without the collection of duties, taxes and other charges.

207. The Parties grant the right to military personnel and members of their families, as well as persons discharged from military service, leaving for permanent residence outside one of the Parties, to export personal property without the collection of duties, taxes, fees and other payments

208. Rent! OR does not make any other payments, taxes and fees to the Lessor in connection with the use of the Baikonur complex, including for the right to use water resources except for the rent.

209. Cargoes transported in transit through the territory of the Russian Federation to the Republic of Azerbaijan and intended for the extraction and transportation of oil are exempt from customs duties, taxes and customs clearance fees.

210. Judges of the European Court of Human Rights enjoy, in respect of themselves, their wives and minor children, the privileges and immunities, exemptions and benefits accorded under international law to diplomatic representatives.

211. The bodies of the EurAsEC are exempt from direct taxes and fees, duties and other payments levied on the territory of the host state, with the exception of those that are payment for specific types of services (services).

212. The Eurasian Development Bank, its income, property and other assets, as well as its operations and transactions carried out in accordance with the Charter in the territory of the member states of the Bank, are exempt from any taxes, fees, duties and other payments.

213. Salaries and remuneration of the Chairman of the Board of the Bank, Deputy Chairmen of the Board of the Bank, members of the Board of the Bank and employees of the Bank are exempt from taxation.

214. Comparative Table No. 7 Decisions of the Constitutional Court of the Russian Federation on the recognition of certain provisions of tax regulatory legal acts as inconsistent with the Constitution of Russia

215. Type of act of the Constitutional Court of the Russian Federation Date Number Name Norms that do not comply with the Constitution of the Russian Federation

216. of the Chelyabinsk Region "On sales tax ■" in connection with the request Arbitration Court Chelyabinsk region, complaints of Russian Troika LLC and a number of citizens

217. Decisions of the Constitutional Court of the Russian Federation, containing the interpretation of certain provisions of tax regulatory legal acts

218. Type of act of the Constitutional Court of the Russian Federation Date of act of the Constitutional Court of the Russian Federation Act number Name of the act of the Constitutional Court of the Russian Federation Interpreted norm Legal position of the Constitutional Court of the Russian Federation

219. of the Republic "On sales tax", the Law of the Kirov region "On sales tax" and the Law of the Chelyabinsk region "0 sales tax" in connection with the request of the Arbitration Court of the Chelyabinsk region, complaints of Russkaya Troika LLC and a number of business citizens.

220. Loyalty”, “Vita plus” and “Neva-Baltic transport company”, LLP “Joint Russian-South African Enterprise“ Ekont ”and citizen A.D. Chulkov

221. Arbitration Procedure Code of the Russian Federation of 1995, Article 29 of the Arbitration Procedure Code of the Russian Federation of 2002 and Articles 137 and 138 of the Civil Code of the Russian Federation of violated rights.

222. of the Russian Federation and the Family Code of the Russian Federation of title-establishing circumstances, in particular regarding the determination of the basis and moment of the emergence of the right of ownership to the relevant property of the taxpayer.

223. Legal positions of the European Court of Human Rights regarding the interpretation of legal norms

224. Name of the case before the ECtHR Date of decision No. Norm of the Convention for the Protection of Human Rights and Fundamental Freedoms applied by the ECtHR Legal position of the ECtHR

225. Lithgow and Others v. United 8 July 1986 Series A No. 102 Article 1 of Protocol No. 1 to the Convention Restrictions may not infringe on rights to such an extent that the rights lose their substance. Restrictive means must be proportionate to the purpose.1.I

226. Kingdoms (Lithgow and Others v. United Kingdom)

227 Gradinger v. Austria 23 October 1995 Series A no. 328-C Article 6 of the Convention The Court must be able to supervise the actions of the administrative authorities in matters of prosecution and sanctions.

228. Provincial Building Society, The Leeds Permanent Building Society and The Yorkshire Building Society v. The United Kingdom

229 Malige v. France 23 September 1998 27812/95 Article 6 of the Convention The Court must be able to supervise the actions of the administrative authorities in matters of prosecution and sanctions.

230 Ponsetti and Chesnel v. France 14 September 1999 36855/97, 41731/98 Article 4 of Protocol No. 7 to the Convention Repeated punishment for the same offense is unacceptable.

231 Dangeville v. France 16 April 2002 36677/97 Article 1 of Protocol No. 1 to the Convention The right of a taxpayer to a refund of overpaid tax is property within the meaning of Article 1 of Protocol No. 1

232 Mamidakis v. Greece 11 January 2007 35533/04 Article 6, Article 1 of Protocol No. 1 to the Convention Excessive fines are contrary to the balance of public and private interests.

233. Comparative table No. 10

234. Application of non-tax laws containing separate tax legal norms in the practice of Russian courts

235. View, date, died judicial act Region tax relations to which the norm of the “non-tax” law is applied (not applied) The norm of the “non-tax” law applied (not applied) Applied / not applied

236. Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of June 22, 2004 No. 2487/04 Income tax benefits for educational institutions in terms of ^entrepreneurial activity Clause 3 of Art. 40 of the Law of the Russian Federation of July 10, 1992 No. 3266-1 "On Education" Not applied

237. Resolution of the Ninth Arbitration Court of Appeal dated June 14, 2005 Case N 09AP-5371/05-AK Benefits on taxes and fees for educational institutions Clause 3 of Art. 40 of the Law of the Russian Federation of July 10, 1992 No. 3266-1 "On Education" Applied

238. Decree of the Federal Antimonopoly Service of the Volgo-Vyatka District of November 27, 2006 in case No. A29-10002/2005a Deferment of payments for the use of subsoil Article 40 of the Law of the Russian Federation of February 21, 1992 No. 2395-1 "On Subsoil" Applied

239. Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of 5 Exemption of educational institutions Paragraph 3 of Article 40 of the Law of the Russian Federation of July 10, 1992 Applied in June 2007 No. 1093/07 institutions from paying land tax 3266-1 "On Education"