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Judgment of the Plenary Session of the Supreme Commercial Court of 30 July 2013 № 57 “Оn Certain Issues Arising at the Application by Courts of Part One of the Tax Code of the Russian Federation"

In these extensive guidelines the Plenary Session assayed to embrace all major issues relating to the general part of the Tax Code. Some paragraphs merely repeat interpretations given in previous guidelines (2001), but there are also some novelties. Here are the most essential ones:

- tax agent who had an opportunity to withhold and remit to the State budget the amount of a tax (for instance, when making payments to foreign person) but failed to do so, may as a consequence be obligated to pay not only the amount of tax, but also penalties and fine; at the same time, the compulsory recovery of the tax from him is permissible only if the tax has been actually withheld but not remitted to the budget (paras 2 and 21);

- the actions of a representative of a taxpayer may not exonerate the taxpayer from liability, because actions of representative or his failure to act are considered as those of the taxpayer himself. However, he may subsequently bring his representative to liability under the rules of civil, family or labour law (para 3);

- the statute of limitations for the purposes of tax liability runs from the last day of the period within which the payment of tax ought to have been made, that is, the period successive to the one within which the arrears have been accrued (para 15);

- taxpayer may be partially exonerated for his failure to pay tax if by the moment the tax inspection adopted a decision against him it was found that he had earlier overpaid the same tax which partially covers the amount of tax arrears (para 20);

- the inspection of premises and a territory belonging to the taxpayer may not be carried out outside the framework of a field tax inspection (para 24);

- tax bodies may use as a proof of tax offences the results of special investigation activities if the latter have been carried out and formalized in accordance with the law (para 45), and also proofs received by tax bodies prior to the start of the inspection (para 27);

- tax bodies are obliged after the carrying out of additional tax control measures to send the related documents to the taxpayer who may present his objections; in the course of such measures the tax bodies are prohibited from collecting proofs concerning new offences that have not been previously reflected in the act (findings) of the inspection (para 38);

- courts must suspend proceedings in a case if the taxpayer challenged the decision of the tax body through a pre-trial procedure, that is, in a superior tax body (para 62); furthermore, a delay in consideration of this complaint by the tax body may serve as a ground for challenging its failure to act in court (para 71);

- parties to tax dispute should divulge proofs to each other prior to court proceedings; they may present to court new proofs but the lack of weighty reasons for such delay may be assessed as an abuse of procedural rights, with litigation expenses being recovered from the abusing party (para 78);       

- notification of a person on the measures of tax control in relation to him should not necessarily be made by way of a registered letter, but may be performed through other means, like a cable or an electronic message, etc (para 41);

- by law the demand to pay tax if sent by a registered letter is considered to be received upon the expiry of 6 days after the date of sending, and therefore the respective tax procedure is considered to be complied with regardless of whether it has been received or not by the tax payer or its representative (para 53);

- if the decision based on the file of inspection has been adopted not by the same tax official who had been examining the file, there is a material breach of procedure for consideration, because the person with regard to whom the tax inspection took place turns out to be unable to give explanations about the conclusions of the inspection to the same official who adopted the decision  (para 42);

- a superior tax body, when repealing a wrong decision, must adopt a new one, without remanding the case for new consideration (para 69);

- tax body may shift to compulsory recovery of tax at the expense of non-monetary assets of a taxpayer only upon taking proper measures for recovery of the tax at the expense of his monetary means (para 55).

Earlier guidelines on the same subject (Judgment of the Plenary Session № 5 for the year 2001) was deemed ineffective.

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