Judgment of the Constitutional Court of 31 March 2015 № 6-П upon the petition of JSC “Gazpromneft”

Legislation in question: Article 2 (Part 4, paragraph 1) of the Federal Constitutional Law “On the Supreme Court of the Russian Federation” and Article 342 (Passage 3 of subparagraph 1 of paragraph 1) of the Tax Code.

Legal issue: Is it admissible that interpretations of the Federal Tax Service not allowed to be disputed in court, since they are not technically considered regulatory legal acts?

Ratio decidendi: Since by virtue of the principle of the vertical subordination territorial tax authorities are obligated in their interactions with the taxpayers be guided by the interpretations issued by the Federal Tax Service on the rules of the Tax Code, such documents indirectly through employee actions of the local tax authorities earn the status of mandatory rulings for an undetermined number of taxpayers. If the document in question issued by the Federal Tax Service has the features allowing its use as a mandatory instruction of general nature, then the fact that it is issued as merely an interpretation is not sufficient to claim that it is not allowed to be analyzed for its compliance with the federal law. Such interpretation issued as an explanation of the regulations, mandatory for the tax authorities and its employees, being a detailed clarification of the instructions, nevertheless could contradict their intent and therefore, in fact establish general rules for the taxpayers, addressed to the undetermined number of persons and aimed at repeated application, therefore having regulative impact on the taxation matters. Refusal of the judicial review of the interpretation documents, being used in the regulative capacities but not considered regulating acts, as a matter of fact, prolongs their use in the legal taxation practice as an official regulatory interpretation of relevant laws, which may contradict their real meaning and, besides, is applicable to the undetermined number of parties. Given the fact that such interpretations became a common place in the daily activities of the tax authorities, their inspection under the current laws covering the disputed non-regulatory acts (i.e. rulings, having legal consequences only for particular citizens and organizations) under given circumstances cannot be considered sufficient to allow for the complete and effective court protection of the rights and freedoms as an essential element of the constitutional-legal regime, based on the principles of the supremacy of the law and rule-of-law State. Therefore the regulation in question contradicts with the Constitution. In order to fill such a gap in the legal regulation the federal legislator has to make changes to existing law, specifying the methods of hearing the cases regarding the review of normative acts of federal bodies of the executive powers, including the interpretations of the Federal Tax Service, containing interpretations of the tax law, which are not formally considered regulatory legal acts, but in fact possess such qualities.

Dissenting opinion:
  • The petitioner has received an unfavourable ruling regarding hearing of the case not because of the fact that an interpretation of the FTS is not a regulatory act, but because the issue at stake was related to the commercial activity, and thus was under the jurisdiction of the arbitrazh court, and not the court of general jurisdiction. The dispute regarding compliance of the letter, issued by the Federal Tax Service with the rule of the federal law it interpreted was settled in the arbitrazh court system. Petitioner's disagreement with the decision in principle, which was made based on court’s analysis of the facts, determined and investigated during the hearing, does not mean that his right to be protected by the court has not been realized.

  • The judgment is wrong. Constitutional Court uses arguments of general nature and makes conclusions not only regarding the acts of the Federal Tax Service, but other federal bodies of executive power, including the Ministry of Finance. All such acts the legislator, and consecutively the law enforcers consider as being non-regulatory acts. They can be invalidated even under the current legislation, which effectively protects the rights of the persons, whose activity is affected by those acts. Such protection is executed by the lower branches of the judicial system, and this is exactly the circumstance that annoys the petitioner; however, transferring such duty to the Supreme Court of Russia, as the present judgment of the Constitutional Court invites the legislator to do, can have negative consequences, in particular, overburdening the Constitutional Court with work.

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Subject area:
Public Law judicial review tax authorities