The draft provides for (in order that transportation services were equally provided to population in all regions, in which case the social support measures are within the purview of the RF and Russian Federation’s subjects) allocation, in the first quarter of 2005, of Rb 2 mlrd as subsides to support measures on ensuring balance of the RF budgets. The above funds are suggested to be sent to the Russian Federation’s subjects for settlements with transportation organizations for provision of social passage tickers – one for federal and regional beneficiaries, or other forms of ensuring availability of transportation services.
According to the data of the Ministry of Finance of Russia, a total Rb 8.5 mlrd will be needed this year for these purposes. It is planned that shortage of funds will be provided to regions from the fund balance stipulated in Article 43 of the Federal Law “On the Federal Budget for 2005”, and also be found during execution of the current year Federal Budget, and introducing appropriate changes to the said Federal Law.
A review of regulatory documents concerning taxation, which were made public in January of In accordance with articles 21 and 34.2 of the RF Tax Code, taxpayers should have the right to be informed in writing by the RF Finance Ministry, financial authorities of RF subjects, tax agencies in the jurisdiction of which the taxpayers are registered about the problems of enforcement of the RF legislation on taxes and charges and respective regulatory acts, the procedures governing the calculation and payment of taxes and charges, etc.
According to article 111 of the RF Tax Code, in the case a taxpayer or a tax agent acted in compliance with the written explanations concerning the tax legislation issued by the authorized state authorities or competent officials thereof, such a taxpayer or a tax agent should be considered not guilty in tax offences. In such circumstances, the person is not responsible for tax offences.
In this connection, alongside with monitoring of innovations introduced in the texts of regulatory and legal acts, there should be paid attention to the formation of databases of written explanations sent by the authorized authorities to taxpayers. In many cases, taxation is determined by concrete contents and rules of registration of transactions based on civil law; it is affected by the regulations set forth by specific branch legislation regulating the issues of conduct of economic operations in different branches and spheres of activities. Therefore, the written explanations issued by the authorized authorities with respect to specific issues of enforcement of tax legislation are the necessary condition of a flexible tying of the tax legislation to the changing conditions of activities of economic agents. Taking into account the aforementioned facts, the written explanations of the authorized authorities with respect to tax legislation should be included in monthly surveys alongside with legislative acts, judicial rulings, and bylaws issued by the federal executive authorities.
Below, there will be analyzed certain explanations issued by the authorized bodies, which were published at the end of 2004 and in the beginning of 2005 in relation to the changes in the tax legislation entering into force since January 1, 2005.
1. In relation to the enactment of certain provisions of the RF Tax Code concerning the privileges relating to taxation of property owned by legal entities, the RF Tax Service requested the RF Finance Ministry to explain the procedures governing the application of tax privileges concerning the tax on the property owned by organizations with respect to the objects of social and cultural sphere used for the needs of culture, arts, education, physical culture and sports, health care, and social security.
As concerns the aforementioned request, the RF Finance Ministry issued its explanation as its letter No. 03.-06-01-04/65 of October 20, 2004, which, as FTS letter No. 21-4-04/9 of January 11, 2005, was sent to the tax authorities for the use in their work.
In particular, the RF Finance Ministry explained the following issues. In article 30 “Tax on property of organizations” of the RF Tax Code there is no concept of objects of social and cultural sphere used for the needs of education, physical culture, health care, and social security.
In spite of the fact that in the same document (the RF Tax Code), although in another article concerning the profit tax, the objects of health care, culture, objects of preschool education, summer camps for children, sanatoriums, boarding houses, tourist centers, objects of physical culture and sports (including tracks, hippodromes, stables, tennis courts, golf fields, badminton courts, rehabilitation centers), objects of non-production types of consumer services rendered to the population (bath houses and saunas) are defined as the objects of social and cultural sphere, the RF Finance Ministry referring to the absence of direct indications in other branches of the legislation (on health care, physical culture and sports in the Russian Federation, the principles of social servicing of the population of the Russian Federation) that the tourist centers, boarding houses, camps for children, etc. are objects used for the needs of culture, arts, education, physical culture, sports, health care, and social security explains that the privileges related to the tax on the profit of organizations may be granted only in the case the respective organizations use these properties for the purposes indicated in their bylaws.
It should be noted that this position of the RF Financial Ministry and the RF Tax Service allows different interpretations of the same term in the framework of the same law (the RF Tax Code). Codification of the tax legislation in the framework of one document was carried out with an aim to exclude different interpretation of the same term for the calculation of different taxes, what earlier created technical problems and complications.
The clearly pronounced trend towards domination of budget legislation over the tax legislation in the sphere of taxation results in the fact that budget organizations have unjustified heavy tax burden in comparison with commercial organizations involved in entrepreneurial activities. This situation is at variance with the principle of equal tax burden not depending on the organizational and legal form of the taxpayer set forth by the RF Tax Code. Thus, in accordance with the aforementioned explanation of the RF Finance Ministry, the object of property tax as concerns budget organizations is the initial value of the property, while commercial organizations pay the tax calculated on the basis of depreciated value of their properties. Different tax bases (and respective tax burden) is explained by the consideration that the property granted for free should not be the subject of depreciation. However, it should be reminded that wear and tear are taken into account in other cases, for instance, in the course of determination of the tax base of the profit tax. Commercial organizations (in contradistinction to budget organizations) have the right to deduct the amount of depreciation from the profit tax base;
therefore they can recover the means spent by them earlier and equalize the tax burden. At the same time, too high property tax burden on budget organizations has no economic justification whatsoever.
2. Letter of the FTS No. 09-0-10/5985 of December 27, 2004, was issued in relation to the enactment of article 366 of the second section of the RF Tax Code on January 1, 2005, and in relation to the amendments made to article 29 of the RF Tax Code. The letter explains the issues of registration of taxpayers paying the tax on gambling at the location of the object of taxation. The RF Tax Service prepared its draft order concerning the registration of the payers of the tax on gambling in the respective tax agencies. After the approval of the draft order by the respective structural units of the RF Tax Service, this order will be submitted for approval of the RF Finance Ministry.
Until the order is approved, since January 1, 2005, the registration of the taxpayer should be carried out on the basis of the taxpayer application for registration of the object (objects) of taxation submitted in accordance with the procedures set forth in paragraph 2 of article 366 of the RF Tax Code supplemented with the documents indicated in the draft order (if such documents are available).
3. Federal law No. 198 FZ of December 9, 2004, amends article 1 of federal law No. 82 FZ of June 19, 2000, “On minimal wage” to the effect that the minimal monthly wages and salaries should be set at:
• Rub. 720 per month since January 1, 2005;
• Rub. 800 per month since September 1, 2005;
• Rub. 1 100 per month since May 1, 2006.
4. Federal law No. 207 FZ of December 29, 2004, sets forth the insurance tariffs related to the mandatory social insurance as concerns accidents at work and professional illnesses.
5. Letter of the RF Tax Service No. 04-4-09/1273 of December 29, 2004, explains the procedures governing the registration of payment documents as concerns the payment of the stamp tax, which in 2005 should be entered in the accounts of the Federal Treasury agencies in its full amount.
6. Resolution of the RF Government No. 857 of December 27, 2004, abolishes the minimal and maximal rates of payments for the use of water objects set forth by Resolution of the RF Government No. 826 of November 28, 2001, due to the enactment of article 25.2 of the RF Tax Code “Water Tax.” The tax rates should be directly set forth by the RF Tax Code.
7. Letter of the RF Tax Service No. ShS-6-10/8 of January 14, 2005, explains the procedures governing the transfer of tax related payments made by bank customers to the budget system of the Russian Federation on the part of crediting organizations. The letter concerns the transfer of taxes, charges, and other payments registered prior to January 1, 2005, and entered in the database of the documents not executed within the established terms. In accordance with letter No. 08-17/5677 of December 31, 2004, of the Central Bank of the Russian Federation, the aforementioned payment documents should be executed by the crediting organizations in accordance with the stipulations of the Bank of Russia Rules No. 2-P of October 3, 2002, “On non-cash payments in the Russian Federation” being in force at the moment of registration of the payment documents and should not be reregistered by crediting organizations.
The issue of the possibility for banks to introduce changes in the payment documents of taxpayers is very urgent, since, on the one hand, he RF Tax Code includes a direct stipulation (article 45) that the tax should be considered as paid on the date of submission of the respective payment document to the bank on condition that the taxpayer has sufficient funds on its bank account. At the same time, the Constitutional Court explained (No. 138-O of April 25, 2001) that this stipulation should be applicable only to conscientious taxpayers. Since in each concrete case only the court may establish if the taxpayer is conscientious, the failures of banks to execute such documents often result in tax offences and respective fines imposed on the taxpayers. In fact, the explanation issued by the RF Constitutional Court has returned the situation existing prior to the banking crisis of 1998, when taxpayers had no means of protection against the actions of tax authorities.
As concerns the establishment of the date of the payment of the tax by the customer, in accordance with the banking legislation, the transfer of money from the corresponding account of the payer’s bank to the corresponding account of the beneficiary’s bank is executed by a payment document issued by the bank on the date of actual transfer of the funds from its account. At the same time, the original tax payment document filled in by the customer is supplemented to the bank payment document. Banks have no right to make changes in the customer’s document. The real problem is that tax authorities still can not switch to control over the movement of payment documents in bank databases. Therefore, tax authorities, (infringing on the tax legislation stipulations) register the tax payments on the basis of notifications from the Federal Treasury that the necessary amount was entered in the account of budget revenues, and until that moment continue to hold the taxpayer responsible for delay of tax payments. The failure of tax authorities to organize proper monitoring of the movement of payment documents in the framework of in the bank – taxpayer system results in unjustifiable high administrative costs borne by taxpayers with respect to the payment of taxes, while the risks associated with unjustified actions on the part of tax authorities turn out to be too high. It seems probable that exactly this factor had the key impact on the worsening of the investment climate in the Russian Federation.
L. Anisimova A review of economic legislation: January of In late December and January there were introduced the following changes in the legislation currently in force: enactment of the new Housing Code of the Russian Federation; the minimal wage was set at Rub. 720 since January 1, 2005; the tax deduction for each child was increased from Rub. 300 to Rub. 600; there were approved the Provisional Rules governing the investigation of deliberate and fraudulent bankruptcy by the bankruptcy commissioner; the Tax Service brought to the notice of all concerned parties the data used for the calculation of the mineral extraction tax rate on oil in December of 2004; the Tax Service brought to the notice of all concerned parties the rates of excise taxes on excisable goods imported to the customs territory of the Russian Federation applicable since January 1, 2005.
I. FEDERAL LAWS of the Russian Federation 1. “ON ENACTMENT OF THE HOUSING CODE OF THE RUSSIAN FEDERATION” No. FZ of December 29, The RF Housing Code enters into force on March 1, 2005. At that time, there should be abolished the Housing Code of the RSFSR, regulatory legal acts introducing amendments to the Housing Code of the RSFSR, and there should be introduced the respective amendments to certain normative legal acts regulating the legal relations in the housing sphere.
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