Article 8 of the Tax Code of the Russian Federation. Concept of tax, fee, insurance premiums

Article 8 of the Tax Code of the Russian Federation. The concept of tax, fee, insurance premiums (current version)

The commented article establishes the concepts of tax and fee, thereby defining their common and different properties.

The Constitutional Court of the Russian Federation in its decisions has repeatedly addressed the constitutional concept of “legally established taxes and fees.” Revealing the content of this concept, he pointed out that a tax or fee can be established only by directly listing in the law the essential elements of the tax obligation (Resolutions of the Constitutional Court of the Russian Federation dated 04.04.1996 N 9-P and dated 11.11.1997 N 16-P).

However, this does not mean that the legal regulation of taxes and fees should be the same in everything. Taking into account the legal positions of the Constitutional Court of the Russian Federation, the federal legislator, when defining in the Tax Code of the Russian Federation the main principles of legislation on taxes and fees, proceeded from the fact that taxes and fees as obligatory payments to the budget have a different legal nature: if a tax is an individual gratuitous payment for the purpose of financial support for activities state and (or) municipalities, then a fee is a contribution, the payment of which by the payer is one of the conditions for the performance of legally significant actions in relation to him by state bodies, local governments and officials, including the granting of certain rights or the issuance of permits (licenses).

This difference also predetermines a different approach to establishing these mandatory payments: a tax is considered established only if the taxpayers and all elements of taxation listed in the Tax Code of the Russian Federation, including the tax rate, are identified (clause 1 of Article 17 of the Tax Code of the Russian Federation); when establishing a fee, its elements are determined individually, i.e. in relation to a specific type of payment (clause 3 of Article 17 of the Tax Code of the Russian Federation). Consequently, the question of exactly which elements of the fee should be enshrined in the law is decided by the legislator himself, based on the nature of the fee (Definition of the Constitutional Court of the Russian Federation dated 02/08/2001 N 14-O).

The Constitutional Court of the Russian Federation also introduces a distinction between a tax and a fee based on the legal consequences of their non-payment (Definition dated December 10, 2002 N 283-O). Namely, non-payment of tax entails forced collection of arrears and the application of sanctions, while non-payment of the fee means refusal of the relevant government body to perform legally significant actions necessary for the person (the payer of the fee).

Finally, the Constitutional Court of the Russian Federation calls individual remuneration a distinctive feature of collection. He understands it as receiving for a fee the opportunity to satisfy the payer’s interest, which consists in acquiring any advantages or benefits.

Thus, the consequence of paying a fee, in contrast to a tax, can be considered to be gaining access to a right or receiving the right itself, or gaining the opportunity to exercise the right.

It should be added to the above that in paragraph 1 of Article 5 of the Tax Code of the Russian Federation there is no indication of the tax period. This means that the payment of tax presupposes a certain regularity, systematicity and periodicity, that is, the most important element of the tax is the tax period, at the end of which the tax base is established and the amount of the tax itself is calculated, hence the fee is one-time in nature, paid in strictly defined cases when the payer there is a need to receive from the state any public legal services in which he is individually interested: granting rights, issuing a license, carrying out registration or other legally significant actions in favor of the payer. Accordingly, the payment of the fee is not directly related to a particular period of time, but is determined by the payer’s desire to enter into public legal relations with the state (see Resolutions of the Federal Antimonopoly Service of the Central District dated 09/07/2005 N A08-11197/04-21 and dated 03/30/2004 N A23-2716/03A-5-281, Federal Antimonopoly Service of the West Siberian District dated June 23, 2004 N F04/3436-422/A67-2004).

In connection with the introduction of a trade fee into the system of taxes and fees, the commented article also points to such a feature of the fee as the conditionality of its payment by the implementation of certain types of business activities within the territory in which the fee is introduced.

The provisions of the Tax Code of the Russian Federation defining the concepts of tax and collection are important in practice.

In the Resolution of the Arbitration Court of the East Siberian District dated April 29, 2015 N F02-1313/2015 in case N A33-8699/2014, the court indicated that, as follows from the content of Article 128 of the Civil Code of the Russian Federation and Article 8 of the Tax Code of the Russian Federation, tax (regardless of whether it was paid to the budget or not) does not apply to objects of civil law. Accordingly, the amount of personal income tax not received by the budget does not fall under the civil law concept of losses and cannot be recovered from the arbitration manager if, when paying wages to employees during the bankruptcy proceedings, personal income tax was not withheld and transferred to the budget.

In the Ruling of the Supreme Court of the Russian Federation dated October 28, 2015 N 5-APG15-62, the court rejected the argument for introducing a fee not provided for by the Tax Code of the Russian Federation, noting that the use of a paid parking lot (parking space) located on public roads is expressly provided for in Article 12 Federal Law of November 8, 2007 N 257-FZ. Charging a fee for the use of parking is not subject to regulation by tax legislation, since the specified fee is not a tax or tax fee in the sense defined in Article 8 of the Tax Code of the Russian Federation. Payment for the use of parking lots is regulated by legislation in the field of relations arising in connection with the use of highways, including on a paid basis, and the implementation of road activities.

In the Resolution of the Fifteenth Arbitration Court of Appeal dated September 21, 2015 No. 15AP-13613/2015 in case No. A32-27526/2014, the court came to the conclusion that the organization should not collect port dues, noting the following.

In accordance with Part 2 of Article 19 of the Federal Law of November 8, 2007 N 261-FZ “On seaports in the Russian Federation and on amendments to certain legislative acts of the Russian Federation,” port dues are payable to the administration of seaports, the business entity that provided the relevant services at the seaport.

Part 3 of Article 19 of the Federal Law of November 8, 2007 N 261-FZ in the seaport can establish the following port dues: ship dues; channel; icebreaker; pilot; lighthouse; navigation; mooring; ecological; transport safety of the seaport water area.

In the Determination of the Constitutional Court of the Russian Federation of January 17, 2013 N 37-O, these payments were indirectly qualified as fees corresponding to Art. 57 of the Constitution of the Russian Federation, which provides for the obligation of everyone to pay legally established taxes and fees.

In relation to the port of Novorossiysk, during the disputed period, ship, lighthouse, navigation, pilotage, and environmental dues were approved.

Based on the provisions of Part 2 of Article 19 of Law No. 261, port dues are payable to the seaport administration, that is, to the business entity that provided the relevant services in the seaport.

Collection of port dues, with rare exceptions, is carried out only by government agencies. Accordingly, their collection, including berthing dues, is not carried out by the organization (joint-stock company).

Comment source:

“ARTICLE-BY-ARTICLE COMMENTARY TO PART ONE OF THE TAX CODE OF THE RUSSIAN FEDERATION” (UPDATE)

Yu.M. Lermontov, 2016

Article 8. Concept of tax, fee, insurance premiums

Cassation ruling of the Judicial Collegium for Administrative Cases of the Supreme Court of the Russian Federation dated October 2, 2017 N 4-КГ17-46 In accordance with paragraph 1 of Article of the Tax Code of the Russian Federation, a tax is understood as a mandatory, individually gratuitous payment levied on organizations and individuals in the form of alienation of property belonging to them on the right of ownership, economic management or operational management of funds for the purpose of financial support for the activities of the state and (or) municipalities.

Ruling of the Supreme Court of the Russian Federation dated 01/09/2020 N 308-ES19-25127 in case N A32-6922/2019

Satisfying the stated requirements, the courts, having assessed the evidence presented in the case materials, guided by the provisions of Articles 9, 18.1, 39 of the Federal Law of July 26, 2006 N 135-FZ “On the Protection of Competition”, Articles 21, 23 of the Federal Law of July 13, 2015 N 220- Federal Law “On the organization of regular transportation of passengers and luggage by road and urban ground electric transport in the Russian Federation and on amendments to certain legislative acts of the Russian Federation”, Article 40 of the Budget Code of the Russian Federation, Articles of the Tax Code of the Russian Federation, Article 3 of the Federal Law of June 23 .2003 N 76-FZ “On Amendments and Additions to the Federal Law “On State Registration of Legal Entities”, we came to the conclusion that the department did not have legal grounds for making a decision and order due to the lack of proof of the presence of alleged violations in the actions of the ministry.

Ruling of the Supreme Court of the Russian Federation dated March 24, 2017 N 305-KG17-1496 in case N A41-18711/2016

Refusing to satisfy the stated demands, the courts of three instances, having examined and assessed the evidence presented by the parties in the case materials, guided by the provisions of articles , , , , of the Tax Code of the Russian Federation, came to the conclusion that the disputed obligation to pay tax cannot be considered fulfilled.

Cassation ruling of the Judicial Collegium for Administrative Cases of the Supreme Court of the Russian Federation dated February 26, 2020 No. 5-KA19-85

Along with this, a tax is understood as a mandatory, individually gratuitous payment levied on organizations and individuals in the form of alienation of funds belonging to them by right of ownership, economic management or operational management for the purpose of financial support for the activities of the state and (or) municipalities (clause 1 of Article Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation).

Ruling of the Supreme Court of the Russian Federation dated March 17, 2020 N 301-ES19-26978 in case N A39-5635/2018

The cassation court did not agree with the above conclusions of the courts, pointing out the incorrect interpretation and application of articles , , , 207 of the Tax Code of the Russian Federation, as well as article 3 of Law No. 54-Z. According to Article 3 of Law No. 54-Z (as amended on June 1, 2016), in particular, organizations engaged in the design, development of technical documentation and production of cars for various purposes and other rolling stock as their main activity are exempt from paying corporate property tax, components, equipment and materials for their manufacture, if this type of activity constitutes at least 40 percent of the total volume of work (paragraph 5 of paragraph 1 of Article 2 of the Law).

Cassation ruling of the Judicial Collegium for Administrative Cases of the Supreme Court of the Russian Federation dated February 19, 2020 No. 5-KA19-54

Ruling of the Supreme Court of the Russian Federation dated 02/06/2018 N 305-KG17-23490 in case N A41-17088/2017

Refusing to satisfy the stated requirements, the courts of the first and appellate instances, having assessed the evidence presented in the case materials, guided by the provisions of articles , , , , of the Tax Code of the Russian Federation, came to the conclusion that the tax authority had proven a set of circumstances indicating the absence of legal grounds for recognizing the obligation to payment of value added tax for the 1st and 2nd quarters of 2015 in the total amount of 12,300,000 rubles executed.

Ruling of the Supreme Court of the Russian Federation dated 04/05/2018 N 309-KG18-2050 in case N A50-4143/2017

Having assessed the evidence presented in its totality and mutual connection, guided by the provisions of Articles 7, 8, 12, 18, 58, 58.2 of the Federal Law of July 24, 2009 N 212-FZ, , 12, , , 58.2 of the Federal Law of July 24, 2009 N 212-FZ Federal Law, Article 346.15 of the Tax Code of the Russian Federation, Articles 45, 52, 53, 55 of the Federal Law of April 12, 2010 N 61-FZ “On the Circulation of Medicines”, the courts of the first, appellate and cassation instances came to the conclusion that there were no grounds for invalidation contested decision of the fund.

Ruling of the Supreme Court of the Russian Federation dated July 09, 2018 N 305-KG18-8541 in case N A40-91985/2017

In accordance with paragraph 1 of Article of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code), a tax is understood as a mandatory, individually gratuitous payment levied on organizations and individuals in the form of alienation of funds belonging to them by right of ownership, economic management or operational management for financial purposes. ensuring the activities of the state and (or) municipalities.

Cassation ruling of the Judicial Collegium for Administrative Cases of the Supreme Court of the Russian Federation dated 02/05/2020 N 5-KA19-66

Cassation ruling of the Judicial Collegium for Administrative Cases of the Supreme Court of the Russian Federation dated March 25, 2020 No. 5-KA19-76

Tax is understood as a mandatory, individually gratuitous payment levied on organizations and individuals in the form of alienation of funds belonging to them by right of ownership, economic management or operational management for the purpose of financial support for the activities of the state and (or) municipalities (clause 1 of Article of the Tax Code of the Russian Federation). Federation (hereinafter referred to as the Tax Code of the Russian Federation).

Article 8 of the Tax Code of the Russian Federation. Concept of tax and fee

The commented article establishes the concepts of tax and fee, thereby defining their common and different properties.

The Constitutional Court of the Russian Federation also introduces a distinction between a tax and a fee based on the legal consequences of their non-payment (Definition dated December 10, 2002 N 283-O). Namely: failure to pay a tax entails forced collection of arrears and the application of sanctions, while failure to pay a fee means a refusal by the relevant government body to perform legally significant actions necessary for the person (payer of the fee).

Thus, the consequence of paying a fee, in contrast to a tax, can be considered to be gaining access to a right or receiving the right itself, or gaining the opportunity to exercise the right.

The provisions of the Tax Code of the Russian Federation defining the concepts of tax and collection are important in practice.

In the Ruling of the Supreme Court of the Russian Federation dated October 28, 2015 N 5-APG15-62, the court rejected the argument for introducing a fee not provided for by the Tax Code of the Russian Federation, noting that the use of a paid parking lot (parking space) located on public roads is expressly provided for in Article 12 of the Federal Law of November 8, 2007 N 257-FZ. Charging a fee for the use of parking is not subject to regulation by tax legislation, since the specified fee is not a tax or tax fee in the sense defined in Article 8 of the Tax Code of the Russian Federation. Payment for the use of parking lots is regulated by legislation in the field of relations arising in connection with the use of highways, including on a paid basis, and the implementation of road activities.

In relation to the port of Novorossiysk, during the disputed period, ship, lighthouse, navigation, pilotage, and environmental dues were approved.

Commentary on Article 8 of the Tax Code of the Russian Federation

This article of the Code defines a tax, according to which its characteristics are:

1) obligation.

Article 57 of the Constitution states: “Everyone is obliged to pay legally established taxes and fees.”

The tax is established by an act of a public authority, which presupposes its unconditional payment by persons, following the authoritative instructions of such a normative act;

2) individual gratuitousness.

The taxpayer is obliged to independently fulfill the obligation to pay the tax, unless otherwise provided by the legislation on taxes and fees.

The tax has a unilateral nature of its establishment. This feature of the tax is based on the unidirectional movement of funds - from the payer to the state. The state, receiving taxes into the budget as part of the regulation of taxation relations, does not assume any reciprocal obligations to the taxpayer. At the same time, the payer, by paying the tax, does not acquire any rights. But this does not mean that taxpayers do not receive any benefits from the state at all. Free education and medical care, protection by law enforcement, subsidies for utilities, etc. - benefits provided to taxpayers by the state;

3) alienation of funds belonging to organizations and individuals under the right of ownership, economic management or operational management.

In this case, the obligation to pay tax is fulfilled in the currency of the Russian Federation. Only in cases of insufficiency or absence of funds in the accounts of the payer (or tax agent) does the tax authority have the right to collect tax from other property of the taxpayer in accordance with Art. Art. 46, 47 Tax Code of the Russian Federation;

4) financial support for the activities of the state (for example, for the defense of the country, emergency response, etc.) and (or) municipalities (aimed at supporting housing and communal services, building roads, schools, etc.).

This article also defines a fee.

A fee is a mandatory contribution levied on organizations and individuals, the payment of which is one of the conditions for state bodies, local governments, other authorized bodies and officials to carry out legally significant actions in relation to fee payers, including the granting of certain rights or the issuance of permits (licenses). ).

In accordance with this definition, the characteristics of collection are:

1) mandatory, which implies power relations between the parties: subordination of the fee payer to the relevant government body and unconditional payment to them;

2) the fee is a compensatory payment, since it gives the payer the right to demand that government bodies perform certain legal actions (including granting certain rights or issuing permits (licenses), etc.). On the other hand, Art. 8 of the Tax Code of the Russian Federation also allows for the gratuitous nature of the contribution (in cases provided for by a specific regulatory act).