This page contains brief annotations of court decisions on the topic under consideration and links to files with the full text of the court decision.

Note:

Court decisions in favor of the audited organization are indicated by index (a);

Court decisions in favor of the supervisory authority are indicated by the index (b).

(a) FSBN TU revealed misuse of the subsidy for state support small and medium-sized businesses - allocation of funds legal entity that carries out the production alcoholic products, i.e. not entitled to receive financial support from these funds, due to the restrictions established by Part 4 of Article 14 of Federal Law N 209-FZ.
The court found that Part 4 of Article 14 of Federal Law N 209-FZ imposes a ban on subsidizing only small and medium-sized businesses that produce and sell excisable goods at the same time. The link of the TU FSBN to the letters of the Ministry of Economic Development of Russia of December 10, 2008 N D05-5638, of July 27, 2009 N D05-3697, of April 14, 2010 N D05-1084 is rejected by the district court, since these letters are informational character.
P-VVO61

(b) Recalculation of the cost of construction and installation works performed by the contractor into current prices must be made using the indices established in the letters of the Federal Agency for Construction and Housing and Communal Services, since these letters are acts of a public authority, official mandatory for an indefinite circle of persons (regardless of their form and other conditions - state registration, publication in the official journal).
P-VSO30

(b) Letter No. 02-05-10/1191 of the Ministry of Finance of the Russian Federation dated March 12, 2009 is for informational purposes, with reference to the obligatory nature of management in this case, the Instructions on the procedure for applying the budget classification of the Russian Federation. The letter is interpretive, contains the position of the executive body on the interpretation of the norm of the law and was reasonably not regarded by the court of appeal, based on the meaning of Article 311 of the Arbitration Procedure Code of the Russian Federation, as a newly discovered circumstance.
P-SZO66

(a) Conclusions TU FSFBN: The institution approved misappropriation of federal funds. The policy has been paid CASCO for the insurance of the vehicle leased by the Institution.
The court found:
- insurance under a voluntary insurance contract for a leased vehicle against damage and theft (CASCO) is a legal way to insure only the property of the treasurysubject of the Russian Federationin accordance with its market value;
- in order to properly fulfill contractual obligations, the Lessee is obliged to carry out comprehensive voluntary insurance of the vehicle as an object of property of the Tyumen region. Only the presence of OSAGO and CASCO policies is the proper way to executeinstitutioncontractual obligationsrent.
The reference of the TU FSFBN to the letter of the Ministry of Finance of Russia of December 13, 2011 N 14-01-07 / 151-1301-1455 is not accepted by the court, since the said letter is not a regulatory legal act and is advisory (informational) in nature.
P-ZSO88

(b) TU FSBN when checkingmonthly recipient information monetary compensation(EBC), assigned to military personnel, citizens called up for military training, and members of their families, whose pensions are provided by the Pension Fund of the Russian Federation,determined that the centerunreasonablyrefused to appoint an EBC to citizen Z. and citizen K., in connection with which these citizens did not receive an EBC.

Atwhen submitting the application, Z. presented, among other things, a certificate issued in the Republic of Ukraine, establishing for the first time a disability of the second group due to a wound at the front during the Second World War.
FROMudy concluded that a certificate issued in the Republic of Ukraine should be accepted on the territoryRFas confirmation of the right to social benefits.Gr. Z. had the right to receive an EBC from the date of submission of the certificate rejected by the Center.
The courts also confirmed that Mr. TO.is a family member of a deceased participant in the Great Patriotic War and a disabled person of the 1st group of the Great Patriotic War and had the right to receive an EDC from 01/01/2012.
The reference in the complaint to the letter of the Ministry of Labor of Russia dated July 24, 2014 N 13-7 / B-757 is untenable, since it is not a regulatory legal act, but is of a recommendatory nature.
P-SZO90

(b) The Head of the Department was brought to administrative responsibility under Art. 15.15.7 of the Code of Administrative Offenses of the Russian Federation for violation of the procedure for accounting for budget obligations.
The court found the following. The arguments that the operations for compiling and providing information about the obligation do not relate to the operations for accounting for the budget obligation, with reference to the letters of the Ministry of Finance of the Russian Federation, are untenable. The letters of the Ministry of Finance of the Russian Federation are not regulatory legal acts that determine the procedure for accounting for budget obligations and are only advisory in nature. Arguments that the organs executive power the obligation to account for budgetary obligations is not assigned, are based on an incorrect interpretation of substantive law.
R-SOYU61

(b) The conclusions of the TU FS FBN, confirmed by the courts: federal budget funds allocated to the Office under BCC 244.225 "Works, services for the maintenance of property" were used for expenses provided for under BCC 243.225 "Procurement of goods, works, services for the purpose of major repairs state property", which, in accordance with Article 289 of the RF BC, is misappropriation of funds.
The courts also found the following. The reference of the Office to the letter of the Ministry of Regional Development of the Russian Federation dated 05.07.2013 N 11921-vl / 10 is not accepted by the court, since the Ministry of Regional Development of the Russian Federation does not have the right to replace the functions of the Ministry of Finance of the Russian Federation and explain the possibility of applying the Regulations on the conduct of scheduled preventive maintenance of industrial buildings and structures. In addition, this letter is for informational purposes and is not a regulatory legal act that is binding.
P-APS14

(b) Conclusions of the TU Rosfinnadzor. The institution does not comply with the principle of efficient use budget funds, namely: when calculating the initial (maximum) cost of a government contract, their value is overestimated as a result of the incorrect application of cost change indices to basic level prices, which resulted in additional spending of federal budget funds in the amount of 66.1 million rubles. The Arbitration Court of the East Siberian District recognized as legitimate the conclusions of the courts of previous instances on illegal use budget funds in the amount of 66.1 million rubles.
The courts found that the Institution applied the indices adjusted by the letter of the Ministry of Economic Development of the Russian Federation dated August 21, 2007 No. 12529-GG / DOZ, while for the formation of the initial (maximum) bidding price in the preparation of tender documentation, the indices of change in the estimated cost specified in quarterly letters are subject to application Ministry of Regional Development of the Russian Federation.
Arguments about the absence of the TU FSFBN the right to exercise control over the justification of the initial (maximum) price of the contract, about the calculation of the initial (maximum) price of the contract in accordance with the provisions of Law N 94-FZ, that the letters of the Ministry of Regional Development of the Russian Federation do not apply to laws or other regulatory legal acts were rejected by the Supreme Court of the Russian Federation.

LETTERS FROM EXECUTIVE AUTHORITIES: PROBLEMS OF DEFINITION, LEGAL NATURE AND CORRELATION WITH REGULATIONS

L.A. ALIEV

Regulatory legal act (hereinafter referred to as NLA) in modern Russia is the main source of legal regulation of public relations. There is no legislative definition of legal acts, but within the framework of this article, it seems quite appropriate to use the definition given in the Order of the Ministry of Justice Russian Federation dated 04.05.2007 N 88 "On approval of the Explanations on the application of the Rules for the preparation of regulatory legal acts federal bodies executive power and their state registration". In accordance with this act, "a normative legal act is a written official document adopted (issued) in a certain form by a law-making body within its competence and aimed at establishing, changing or repealing legal norms. In turn, a legal norm is usually understood as a generally binding state prescription of a permanent or temporary nature, designed for repeated use.

It would also not be superfluous to note that Decree of the Government of the Russian Federation of August 13, 1997 N 1009 "On approval of the Rules for the preparation of regulatory legal acts of federal executive bodies and their state registration" (hereinafter - Government Decree N 1009) states that "normative legal acts of federal executive bodies are issued only in the form of resolutions, orders, instructions, rules, instructions and regulations." It is also noted that "the publication of regulatory legal acts in the form of letters and telegrams is not allowed."

Before proceeding to a more detailed consideration of the problem, it is worth listing the main features of the NPA. So, M.N. Marchenko in his textbook on the theory of state and law gives the following list of signs of legal acts:

"1. Without exception, all regulatory legal acts are state in nature.

2. They are issued or sanctioned only by state bodies and have a volitional character.

3. They contain and through them the state will is refracted.

4. The onset of criminal law, civil law and other legal consequences is associated with the violation of the decrees contained in regulatory legal acts.

Also, to these features, one can add the non-personalized nature of legal acts (their addressing to an indefinite circle of persons); the fact that they are created for multiple use and are aimed at regulating social relations; have a certain procedure for adoption, publication and entry into force.

The issue of signs in this article is of great importance, since the definition of a letter and its characteristic features absent in modern jurisprudence. And taking into account the fact that these documents are issued by executive authorities and de facto have some signs of legal acts, it is worthwhile to figure out whether they are such or not.

In theory, the judicial practice related to the contestation of letters issued by various executive authorities should help resolve the issue. But she is very controversial. This can be illustrated by the following examples.

In one of the cases considered in the Supreme Court of the Russian Federation (hereinafter referred to as the Supreme Court) in 2014, citizen D.N. Irkhin (hereinafter referred to as the applicant) was deprived of the position of a cadastral engineer by the attestation commission in connection with a gross violation of the requirements for processing the documents necessary to obtain a qualification certificate for the right to carry out cadastral activities. Moreover, the basis for such a decision of the commission for attestation of cadastral engineers was not those gross violations that are listed in the Federal Law "On the State Real Estate Cadastre" (hereinafter referred to as the Cadastre Law), but those contained in the letter of the Ministry economic development of the Russian Federation dated 27.07.2010 "On the grounds for the annulment of the qualification certificate of a cadastral engineer". The Supreme Court, after analyzing this act, came to the conclusion that “the letter is a normative legal act, since it contains legal norms (rules of conduct) binding on an indefinite circle of persons, designed for repeated use, aimed at regulating public relations arising in connection with maintenance of the state real estate cadastre, implementation of state cadastral registration of real estate and cadastral activities.

After establishing this letter as an NLA, the Supreme Court indicated that this letter was not submitted for state registration to the Ministry of Justice of the Russian Federation (hereinafter referred to as the Ministry of Justice of Russia) and was not published in the manner prescribed by law, violated clause 2 of Government Decree N 1009, stating that "the publication of regulatory legal acts in the form of letters and telegrams is not allowed" . And, as a result, he satisfied the requirements of the applicant and invalidated the mentioned letter of the Ministry of Economic Development of Russia, thereby prohibiting its application in practice.

The second example, although it refers to the branch of tax law, and yet the events there received a completely different development than in the first case. We will talk about taxation on the extraction of minerals in terms of their regulatory losses.

By general rule established by the current tax legislation, the tax rate in this case is 0% (rubles). Abs. 3 p. 1 h. 1 art. 342 of the Tax Code of the Russian Federation establishes that if for the first period of the next calendar year taxpayers do not have approved loss standards for this year, then those standards that were approved earlier are applied (and for newly developed fields - loss standards established by technical project) .

On August 21, 2013, the Federal Tax Service (hereinafter referred to as the FTS) published letter N AS-4-3/15165 "On the Mineral Extraction Tax" (hereinafter referred to as the FTS letter "On the MET"). In it, in addition to what was written in the paragraph above, the Federal Tax Service establishes a rule for recalculating the amounts of mineral extraction tax in the event that loss standards are approved for the next calendar year during this or the next calendar year. It doesn't matter if these rates go up or down. By the way, in the second case, the taxpayer will not be able to determine in advance the amount of his expenses, which is not in the best way affect its activities.

All this was the reason for the filing of an application by JSC "Gazprom Neft" (hereinafter - "Gazprom Neft") to the Supreme Court. By a ruling dated 12/17/2013, the Supreme Court refused to accept the application of Gazprom Neft to invalidate the letter of the Federal Tax Service "On the severance tax". At the same time, the Supreme Court indicated in its Ruling that the consideration of questions on contesting the NLA of the Federal Tax Service is within the jurisdiction of the arbitration court.

Now, remembering the previous example (about the cadastral engineer), where the letter was recognized by the NPA, one can only wonder about the unity judicial practice, which, it turns out, does not exist at all. Moreover, all this took place within the framework of one court, which is even more surprising. Now you can continue the course of the story.

After the second refusal to consider the case by the Supreme Arbitration Court of the Russian Federation, Gazprom Neft appealed to the Constitutional Court of the Russian Federation (hereinafter referred to as the Constitutional Court) challenging the norms of the Federal Constitutional Law of February 5, 2014 "On the Supreme Court of the Russian Federation" and the above paragraph . 3 p. 1 h. 1 art. 342 of the Tax Code of the Russian Federation. But, taking into account the subject of this article, the main attention will be paid to the reasoning and decisions of the Constitutional Court related to the legal force of the letter mentioned above.

The Constitutional Court explained that “... the basis for the admissibility of verification in this procedure of an act of the Federal Tax Service as a federal executive body should, first of all, be the presence of normative properties in this act (whether it has a general regulatory effect on public relations whether it contains instructions on the rights and obligations of a personally indefinite circle of persons - participants in the relevant legal relations, whether it is designed for repeated use) ". That is, it is not easy to carry out the procedure for compliance with the formal features of the NPA, which was carried out by the Supreme Court in a very contradictory way when considering cases, mentioned above, namely the ability of legal acts to influence social relations, have a non-personal character and be designed for multiple use.

Thus, since 2015, acts of executive authorities that are not formally legal acts, but have regulatory properties, are considered in the manner established for challenging regulatory legal acts. But since March 2016, this "transitional" procedure will undergo changes, since the Federal Law of February 15, 2016 N 18-FZ "On Amendments to the Arbitration Procedure Code of the Russian Federation and the Code of Administrative Procedure of the Russian Federation in terms of establishing the procedure for judicial review" was adopted cases on contesting certain acts". According to this Federal Law, arbitration cases challenging acts of executive authorities that have regulatory properties and contain explanations of the law will be considered if this category of cases is assigned by the Arbitration Procedure Code of the Russian Federation to the competence of the Court for Intellectual Property Rights. Moreover, amendments have been made to the Code of Administrative Procedure that determine the jurisdiction of cases regarding challenging the acts of the above bodies, clarifying the provisions of the law and having regulatory properties, as well as the procedure for proceedings in administrative cases challenging these acts.

Returning to the analysis of the decision of the Constitutional Court, the following shortcomings can be identified in it:

1. Despite the well-founded position of the Constitutional Court, which focused on the normative properties of the letters of the Federal Tax Service, it is not entirely correct to ignore the formal features. Still, there are requirements and conditions established by the Constitution (part 3, article 15) and a number of other legal acts (the form of the document itself, the proper subject of publication, the procedure for adoption and entry into force, etc.), which allow us to define the document as a normative legal Act.

Very interesting in this case are the Dissenting opinions of the judges of the Constitutional Court Yu.M. Danilova and G.A. Zhilin, who equally agreed that these acts are not normative legal and are subject to challenge in an arbitration court in accordance with Chapter 24 of the Arbitration Procedure Code of the Russian Federation.

2. First of all, the letters of the Federal Tax Service were given a special status. On the one hand, they are not legal acts in the direct meaning of this term. But they can no longer be called non-normative acts, since they will be considered by the courts on a par with cases of contesting legal acts. Does it promote consistent law enforcement practice? Does it increase the effectiveness of the administration of justice? Incredible...

In general, the issues of the correlation of acts of interpretation with normative acts have acquired particularly acute significance at the present time. This obviously follows from the examples cited, where even in the highest judicial instances there is no unanimity of opinion on the issues that have arisen. Of course, the Resolution of the Constitutional Court brought more clarity to the resolution of these issues, but not without drawbacks, which were also described above.

At the same time, it seems that ignoring this problem in no case is it possible, since in the acts that were originally issued by the executive authorities in order to clarify a specific law (law norms), norms began to appear that were not provided for by law, but created certain requirements, rules of conduct. And if a citizen (organization) has a situation (for example, as in the case of citizen Irkhin) associated with such acts, then the body that issued it demanded the fulfillment of the instructions indicated in them (otherwise, this often threatened with negative consequences). And if the same citizen (organization) went to court, then the executive authorities declared that these acts, by their nature, do not have legal force, but only explain the provisions of the law, thereby "washing their hands." It turns out very efficient scheme, in which the executive authorities can engage in a kind of "rule-setting", while bypassing the judicial mechanisms of influence on such activities. And the logical results of such "law-making" are:

1) violation of the rights of citizens and organizations when participating in certain legal relations;

2) a kind of "pulling" the functions of adopting generally binding legal norms by the executive branch, which ultimately leads to a distortion of the very essence of the legislative authorities and the principle of separation of powers in general;

3) the impossibility of the judicial branch of power to effectively influence such activities.

Speaking about the ways to overcome these violations and summing up the study, it seems possible to note the following. Undoubtedly, the above-described changes made by the legislator to the Arbitration Procedure Code and the Code of Administrative Procedure are very positive, since now the contestation of these acts acquires a stricter procedural order, which increases the ability of the judiciary to really influence the "lawmaking" of the executive branch and, most importantly, , the effectiveness of protecting the rights of citizens and organizations from this activity.

But, in addition to procedural regulation, it is also necessary to issue a so-called substantive law, which would establish the types of legal acts, their relationship in legal force to each other, interpretation, etc. In this light, it seems quite reasonable and relevant to adopt the Federal Law "On Normative Legal Acts", the draft of which is currently in the Ministry of Justice of Russia and which should significantly help in resolving the problems (both theoretical and practical) highlighted in this article. For example, what is the NPA, what can be its forms, what essential features it should have. Also regulate the issues of adoption, modification and loss of legal force of NLAs, their official interpretation (clarification), etc. But while this project remains such, the study of the issues of the legal nature of various normative and non-normative acts generates and will generate new questions that will require a more thorough and in-depth research.

Bibliography:

1. Resolution of the Constitutional Court of the Russian Federation of March 31, 2015 N 6-P "On the case of checking the constitutionality of paragraph 1 of part 4 of Article 2 of the Federal Constitutional Law "On the Supreme Court of the Russian Federation" and paragraph three of subparagraph 1 of paragraph 1 of Article 342 of the Tax Code of the Russian Federation in connection with the complaint of the open joint-stock company Gazprom Neft // Russian newspaper. No. 6648. April 13, 2015
2. Federal Law of July 31, 1998 N 146-FZ "Tax Code of the Russian Federation" (as amended on October 1, 2015) // Collection of Legislation of the Russian Federation. 1998. N 31. Art. 3824.
3. Decree of the Government of the Russian Federation of August 13, 1997 N 1009 "On approval of the Rules for the preparation of regulatory legal acts of federal executive bodies and their state registration" (as amended on August 27, 2015) // Rossiyskaya Gazeta. No. 161. 21.08.1997.
4. Order of the Ministry of Justice of the Russian Federation of 04.05.2007 N 88 "On Approval of Explanations on the Application of the Rules for the Preparation of Normative Legal Acts of Federal Executive Authorities and Their State Registration" // Rossiyskaya Gazeta. No. 4371. May 24, 2007.
5. Decision of the Supreme Court of the Russian Federation of July 10, 2014 N AKPI14-735 "On invalidating the letter of the Ministry of Economic Development of the Russian Federation of July 27, 2010 N 13293-IM / D23 "On the grounds for the annulment of the qualification certificate of a cadastral engineer" // Rossiyskaya Gazeta. No. 244. 24.10.2014.
6. Marchenko M.N. Theory of State and Law: Textbook. 2nd ed., revised. and additional M.: Prospekt, 2013. 656 p.

References (transliterated):

1. Postanovlenie Konstitutsionnogo Suda Rossiiskoi Federatsii dated 03/31/2015 N 6-P "Po delu o proverke konstitutsionnosti punkta 1 chasti 4 stat" i 2 Federal "nogo konstitutsionnogo zakona "O Verkhovnom Sude Rossiiskoi Federatsii" i abzatsa tret "ego podpunkta 1 punkta 1 stat "i 342 Nalogovogo kodeksa Rossiiskoi Federatsii v svyazi s zhaloboi otkrytogo aktsionernogo obshchestva "Gazprom neft"" // Rossiiskaya gazeta. No. 6648. April 13, 2015.
2. Federal "nyi zakon dated 07/31/1998 N 146-FZ "Nalogovyi kodeks Rossiiskoi Federatsii" (v red. dated 10/01/2015) // Sobranie zakonodatel "stva Rossiiskoi Federatsii. 1998. N 31. St. 3824.
3. Postanovlenie Pravitel "stva Rossiiskoi Federatsii ot 13 August 1997 g. N 1009 "Ob utverzhdenii Pravil podgotovki normativnykh pravovykh aktov federal" nykh organov ispolnitel "noi vlasti i ikh gosudarstvennoi registratsii" (v red. ot 08/27/2015 Rossii gazeta) // No. 161. 21.08.1997.
4. Prikaz Ministerstva Yustitsii Rossiiskoi Federatsii dated 04.05.2007 N 88 "Ob utverzhdenii Raz" "yasnenii o primenenii Pravil podgotovki normativnykh pravovykh aktov federal" nykh organov ispolnitel "noi vlasti i ikh gosudarstvennoi registratsii" // Rossiiskaya gazeta. No. 4371. May 24, 2007.
5. Reshenie Verkhovnogo Suda Rossiiskoi Federatsii dated 10.07.2014 N AKPI14-735 "O priznanii nedeistvuyushchim pis"ma Ministerstva ekonomicheskogo razvitiya RF dated 27 iyulya 2010 N 13293-IM/D23 "Ob osnovaniyakh annulirovaniya kvalifikatsionnogo attestata kadastrovogo inzhenera" // Rossiiskaya gazeta. No. 244. 24.10.2014.
6 Marchenko M.N. Teoriya gosudarstva i prava: Uchebnik. 2nd ed., pererab. i dop. M.: Prospekt, 2013. 656 s.

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Letters of the Ministry of Health of Russia and Orders of the Ministry of Health and Social Development of Russia are what? Letters from the Ministry of Health of Russia are...? Orders of the Ministry of Health and Social Development of Russia are...? Are regulations binding? Or are they abnormal? Are they equal to the normative legal act of ministries and departments? Regulatory or other act (non-normative)?

Answer

Taxpayers and professionals working in the field accounting and taxation, study the letters of the Federal Tax Service and the Ministry of Finance. To follow the recommendations of the tax authorities or not - everyone chooses for himself.

The reason for considering the status of the letters of the Federal Tax Service was the Resolution of the Constitutional Court of the Russian Federation of March 31, 2015 N 6-P "On the case of checking the constitutionality of clause 1 of part 4 of article 2 of the Federal constitutional law "On the Supreme Court of the Russian Federation" and the third paragraph of subparagraph 1 of clause 1 of article 342 of the Tax Code of the Russian Federation in connection with the complaint of the open joint-stock company "Gazprom Neft" (hereinafter - Resolution of the Constitutional Court of the Russian Federation N 6-P). This decision has every reason to become an important stage in the difficult path of taxpayers' struggle for their rights. But before moving on to its consideration, let us recall the provisions of the current tax legislation on the application of letters from the Federal Tax Service and the Ministry of Finance.

Current legislation

According to Art. 21 of the Tax Code of the Russian Federation, taxpayers have the right to:
- receive free information (including in writing) from the tax authorities at the place of its registration on the applicable taxes and fees, legislation on taxes and fees and regulations adopted in accordance with it, the procedure for calculating and paying taxes and fees, the rights and duties of taxpayers, the powers of tax authorities and their officials, as well as to receive forms of tax declarations (calculations) and explanations on the procedure for filling them out;
- receive from the Ministry of Finance written explanations on the application of the legislation of the Russian Federation on taxes and fees, from the financial authorities of the constituent entities of the Russian Federation and municipalities- on the issues of applying, respectively, the legislation of the constituent entities of the Russian Federation on taxes and fees and regulatory legal acts of municipalities on local taxes and fees.
At the same time, the tax authorities are obliged (clause 1 of article 32 of the Tax Code of the Russian Federation):
- inform free of charge (including in writing) taxpayers, payers of fees and tax agents about applicable taxes and fees, legislation on taxes and fees and regulations adopted in accordance with it, the procedure for calculating and paying taxes and fees, rights and obligations taxpayers, payers of fees and tax agents, the powers of tax authorities and their officials, as well as submit forms of tax declarations (calculations) and explain the procedure for filling them out;
- be guided by the written explanations of the Ministry of Finance on the application of the legislation of the Russian Federation on taxes and fees.
In turn, the Ministry of Finance gives written explanations on the application of the legislation of the Russian Federation on taxes and fees (clause 1, article 34.2 of the Tax Code of the Russian Federation):
- tax authorities;
- taxpayers, a responsible member of a consolidated group of taxpayers, payers of fees and tax agents.

Note. According to Art. 111 of the Tax Code of the Russian Federation, circumstances excluding the guilt of a person in committing a tax offense are recognized, among other things, the fulfillment by a taxpayer (payer of a fee, tax agent) of written explanations on the procedure for calculating, paying a tax (fee) or on other issues of applying the legislation on taxes and fees given to him or to an indefinite circle of persons by a financial, tax or other authorized body of state power within its competence, and (or) the implementation by the taxpayer of a reasoned opinion of the tax authority sent to him in the course of tax monitoring.

Thus, the current tax legislation establishes the right of the taxpayer to receive information on the application of tax legislation (at the same time completely free of charge) both from the tax authorities and from the Ministry of Finance. Accordingly, the Ministry of Finance and the tax authorities are obliged to provide this information to taxpayers. At the same time, the explanations of the Ministry of Finance are binding on the tax authorities.

The practice of applying the norms of the Tax Code of the Russian Federation

In practice, representatives of the Ministry of Finance and the Federal Tax Service regularly issue clarifications in the form of letters in which they express their opinion on the application of the current tax legislation. And often the interpretation of these norms is contrary to the current legislation, especially when the norms are not spelled out clearly enough. It should be noted that at least in recent years, the position of the Federal Tax Service and the Ministry of Finance on tax issues has become coordinated.
The Ministry of Finance gives written explanations on the merits of the questions raised by the applicants in connection with the performance of their duties as taxpayers, payers of fees, tax agents, taking into account specific circumstances. At the same time, appeals from citizens and organizations regarding the assessment of specific economic situations are not considered.
These written explanations of the Ministry of Finance are of an informational and explanatory nature, are not sent to an indefinite circle of persons, and are not regulatory legal acts that are binding on applicants.
The officials authorized to sign the written explanations of the Ministry of Finance are the Minister of Finance of the Russian Federation and his deputies. Written clarifications from the Tax and Customs Tariff Policy Department are signed by the director and his deputies.
Representatives of the Ministry of Finance on the application by tax authorities and taxpayers of written explanations on tax legislation given by the department note the following (Letter of the Ministry of Finance of Russia dated November 25, 2013 N 03-05-06-02 / 50830):
- on the basis of paragraphs. 5 p. 1 art. 32 of the Tax Code of the Russian Federation, the tax authorities are obliged to be guided by the written explanations of the Ministry of Finance on the application of the legislation of the Russian Federation on taxes and fees;
- letters from the Ministry of Finance with explanations of tax legislation, prepared at the request of taxpayers, are not regulatory legal acts and have an informational and explanatory nature of the application of the legislation of the Russian Federation on taxes and fees and do not prevent one from being guided by the norms of legislation on taxes and fees in an understanding that differs from the interpretation set forth in letters from the Ministry of Finance.
The last remark is well known to taxpayers: it accompanies all letters from the Ministry of Finance.
As we have already said, in addition to taxpayers, the Ministry of Finance gives written explanations of the legislation on taxes and fees to the tax authorities, which are sent by the Federal Tax Service to be brought to the attention of the territorial tax authorities.
On the official website of the Federal Tax Service, letters of the service are posted, agreed with the Ministry of Finance.
In the Letter of the Federal Tax Service of Russia of September 23, 2011 N ED-4-3 / [email protected] Attention is drawn to the need for strict application by the tax authorities of the letters of the Federal Tax Service, posted in the section "Explanations of the Federal Tax Service, mandatory for use by the tax authorities" of the website of the Federal Tax Service.
Thus, the Ministry of Finance and the Federal Tax Service issue clarifications in the form of letters on tax legislation. Some of these letters are posted on the official website of the Federal Tax Service, they are mandatory for use by the territorial tax authorities. At the same time, each letter of the Ministry of Finance contains an indication that the letters of the Ministry of Finance with explanations of tax legislation, prepared at the request of taxpayers, are not regulatory legal acts and are of an information and explanatory nature.

Judicial history

The story that led to the issuance of Resolution of the Constitutional Court of the Russian Federation N 6-P began with an ordinary Letter of the Federal Tax Service of Russia dated 08.21.2013 N AS-4-3 / 15165 "On the tax on the extraction of minerals" (hereinafter - Letter of the Federal Tax Service of Russia N AS-4 -3/15165). For taxpayers who are not familiar with this Letter, we will explain its essence.
According to paragraphs. 1 p. 1 art. 342 of the Tax Code of the Russian Federation, the taxation of MET in the extraction of minerals in terms of standard losses of minerals is carried out at a tax rate of 0% (rubles). At the same time, it was established that if, at the time of the due date for the payment of the MET for the first tax period of the next calendar year, the taxpayer does not have approved loss rates for the next calendar year, until the approval of these loss rates, the loss rates approved earlier in the prescribed manner are applied, and for newly developed deposits - loss standards established by the technical project.
In this regard, according to the Federal Tax Service, if the taxpayer does not have approved standards for the loss of minerals for the next calendar year, the loss standards established earlier are applied until the approval of the loss standards. If the loss rates are approved for the next calendar year during this or the calendar year following it, then the taxpayer is obliged to recalculate the amounts of mineral extraction tax payable to the budget, starting from the first tax period of the calendar year for which these (new) loss rates are approved. At the same time, such a recalculation should be made regardless of whether the newly approved standards exceed the previously existing ones or not.
This position has been agreed with the Ministry of Finance. The document is posted on the official website of the Federal Tax Service.
Let us clarify that the norm of Art. 342 of the Tax Code of the Russian Federation does not provide for any recalculation of the amounts of severance tax backdating. And since this Letter is posted on the website of the Federal Tax Service, the territorial tax authorities began to be guided by it when conducting audits.
And one of the taxpayers - JSC "Gazprom Neft" - decided to invalidate the provisions of the said Letter of the Federal Tax Service regarding the obligation to recalculate the amounts of the mineral extraction tax.
The taxpayer applied to the Supreme Court of the Russian Federation with an application to invalidate the indicated provisions of the Letter of the Federal Tax Service, but it was refused, since the contested Letter of the Federal Tax Service, contrary to the applicant's assertion, does not meet the requirements for regulatory legal acts.
The taxpayer applied to the Supreme Arbitration Court with the same requirement (Determination of the Supreme Arbitration Court of the Russian Federation dated April 10, 2014 N VAC-898/14). The society argued that the Letter is a normative legal act, since it contains legal norm- a universally binding prescription of a permanent nature, designed for repeated application, and affects the rights and legitimate interests of an indefinite circle of MET payers when applying a 0% tax rate to actual losses of minerals within the previously approved loss standards if, at the time of the tax payment deadline, the loss standards have not been approved for the current year. In justification, the company referred to the publication of the Letter on the official website of the Federal Tax Service (www.nalog.ru) in the section "Explanations of the Federal Tax Service, mandatory for use by the tax authorities", as well as in the journal "Documents and Comments" (N 18, September 2013 ).
The Company pointed out that the Letter establishes the obligation of the taxpayer to change (recalculate) the amount of tax liabilities for MET for completed tax periods, in respect of which the tax liabilities of the taxpayer have been duly fulfilled, not provided for by the tax legislation.
The Federal Tax Service, in turn, insisted that the Letter does not belong to the category of normative legal acts and the norms of the disputed Letter correspond to the current legislation. The Ministry of Finance, in its response to the statement, essentially supported the position of the Federal Tax Service.
The WAC noted the following:
- in the current system of legal regulation, the Federal Tax Service is not entitled to adopt (issue) regulatory legal acts in the field of taxes and fees;
- the disputed Letter is an explanation posted on the official website of the Federal Tax Service in connection with the appeals of the tax authorities on the issue of determining the norms for the loss of minerals in order to pay the mineral extraction tax, which cannot be attributed to the regulatory legal acts of the federal executive authorities. At the same time, according to clause 2 of the Rules for the preparation of regulatory legal acts of federal executive bodies and their state registration, approved by Decree of the Government of the Russian Federation of August 13, 1997 N 1009, the publication of regulatory legal acts in the form of letters and telegrams is not allowed;
- The letter does not establish legal norms (rules of conduct) binding on an indefinite circle of persons, which is a mandatory feature of a normative legal act.
Thus, the SAC supported the Federal Tax Service and the Ministry of Finance in a controversial issue.
The transfer of the judicial act to the Presidium of the Supreme Arbitration Court for review by way of supervision was refused (Determination of the Supreme Arbitration Court of the Russian Federation dated May 30, 2014 N VAC-6969/14 in case N VAC-898/14).
The taxpayer decided to go all the way - to the Constitutional Court. In this case, the supreme court was asked whether the following provisions correspond to the Constitution of the Russian Federation:
1) paragraph 1, part 4 of Art. 2 of the Federal Constitutional Law of 05.02.2014 N 3-FKZ "On the Supreme Court of the Russian Federation" (hereinafter - the Federal Law N 3-FKZ), which refers to the powers of the Supreme Court of the Russian Federation as a court of first instance the consideration of administrative cases challenging the regulatory legal acts of the President Russian Federation, the Government of the Russian Federation, federal executive authorities, the Prosecutor General's Office of the Russian Federation, the Investigative Committee of the Russian Federation, the Judicial Department under the Supreme Court of the Russian Federation, the Bank of Russia, the CEC of the Russian Federation, state off-budget funds, including PFR, FSS RF, FFOMS, as well as state corporations;
2) par. 3 pp. 1 p. 1 art. 342 of the Tax Code of the Russian Federation.
We note right away that the Constitutional Court of the Russian Federation terminated the proceedings under paragraph 2 and, in fact, did not consider it.
But on the first one he made a simply revolutionary decision. But first things first.
Violation of paragraph 1 of part 4 of Art. 2 of Federal Law N 3-FKZ, the Constitution of the Russian Federation, the taxpayer saw that this statute restricts the right to judicial challenge of acts of the Federal Tax Service, which establish for taxpayers not provided for by the Tax Code of the Russian Federation, namely paragraphs. 1 p. 1 art. 342 of the Tax Code of the Russian Federation, duties, that is, they are, in fact, regulatory legal acts. This complaint was found to be admissible.
Having studied the norms of the current legislation, the Constitutional Court of the Russian Federation came to the conclusion that the right of the Federal Tax Service to adopt information and explanatory acts in order to ensure the uniform application of tax legislation by tax authorities throughout the Russian Federation is not excluded. Such acts are addressed directly to the tax authorities and officials applying the relevant legal provisions. The obligatory nature of the clarifications contained in them for taxpayers is not normatively fixed. At the same time, since, by virtue of the principle of departmental subordination, territorial tax authorities are obliged in their legal relations with taxpayers to be guided by the explanations of tax legislation coming from the Federal Tax Service, such acts indirectly, through law enforcement officials of the tax authorities acquire, in essence, a mandatory character for an indefinite circle of taxpayers.
At the same time, the legality of normative legal acts of federal executive bodies implies not only the presence in them of a certain normative content that does not contradict the law ( general rule), but also compliance with the proper legal form, procedure for adoption and publication.
If the contested act of the Federal Tax Service has properties that allow it to be used as a binding general prescription, then its dressing in the form of an explanation cannot in itself serve as a sufficient basis for recognizing the inadmissibility of its verification for compliance with federal law.
As indicated by the Constitutional Court of the Russian Federation, the absence in the current legislation of a clear definition of the grounds and conditions for judicial contestation by interested parties of acts of federal executive bodies that have regulatory properties and clarify prescriptions federal laws, led to conflicting practices in resolving the issue of the meaning of the formal side of the characteristics of such an act (the procedure for issuing, publishing, registering by the Ministry of Justice, etc.). As a result, the possibility of contesting the acts of the Federal Tax Service clarifying the prescriptions of tax legislation in the procedure provided for challenging regulatory legal acts, without being supported by direct regulatory instructions, is largely situational in nature.
Taking into account the fact that such clarifications have become widespread in the practice of the tax authorities, their verification only in the manner prescribed by the current legislation for challenging non-normative acts (that is, decisions that have legal consequences only for specific citizens and organizations), under such circumstances, cannot be recognized as sufficient to ensure full and effective judicial protection of rights and freedoms as a necessary element of the constitutional and legal regime based on the principles of the rule of law and the rule of law.
At present, neither the grounds and conditions, nor the procedural procedure for contesting acts of federal executive bodies by interested parties, which are acts of clarification of certain legal provisions and have regulatory properties, are clearly established as necessary elements of legal regulation of the relevant mechanism of judicial protection. This prevents effective judicial challenge of such acts and worsens the position of de facto subject persons due to improper rule-making by the state (or legal regulation is such that it requires clarification by clarifying acts, or an act formally clarifying the legislation was adopted without complying with the requirements that ensure its legality and accessibility, including registration by the Ministry of Justice, official publication, etc.).
The Constitutional Court of the Russian Federation obliged the federal legislator, in order to eliminate the corresponding gap in legal regulation, to introduce amendments to the current legislation that determine the specifics of considering cases on contesting acts of federal executive bodies, including acts of the Federal Tax Service containing explanations of tax legislation, which formally are not normative legal acts, but in fact they have normative properties.
Pending the introduction of appropriate changes to the current legal regulation, consideration of cases on contesting acts of the Federal Tax Service containing explanations of tax legislation, which formally are not regulatory legal acts, but actually have regulatory properties, should be carried out in the manner prescribed by the procedural legislation for challenging regulatory legal acts.
By the way, the judicial acts issued in respect of this taxpayer are subject to revision in the manner determined by the Constitutional Court of the Russian Federation for the implementation of this Resolution, if there are no other obstacles to this.

Let's summarize.
The current tax legislation establishes the right of the taxpayer to receive information on the application of tax legislation from both the tax authorities and the Ministry of Finance. This norm corresponds to the obligation of the Ministry of Finance and the Federal Tax Service to give appropriate explanations.
In practice, the clarification of tax legislation in the form of letters from both the Ministry of Finance and the Federal Tax Service has become widespread. Some of these letters are posted on the official website of the Federal Tax Service, they are mandatory for use by the territorial tax authorities.
The taxpayer, having passed the Supreme Court of the Russian Federation, the Supreme Arbitration Court and having reached the Constitutional Court of the Russian Federation, defended his right to challenge the letters of the Federal Tax Service.
The Constitutional Court of the Russian Federation came to the conclusion that the right of the Federal Tax Service to adopt information and explanatory acts in order to ensure the uniform application of tax legislation by tax authorities throughout the Russian Federation is not excluded. These acts are addressed directly to the tax authorities and officials who apply the relevant legal provisions. And, although the binding nature of the clarifications contained in them for taxpayers is not normatively fixed, they become, in fact, binding for an indefinite circle of taxpayers.
The Constitutional Court of the Russian Federation obliged the federal legislator to introduce amendments to the current legislation that determine the specifics of considering cases on contesting acts of federal executive bodies, including acts of the Federal Tax Service containing explanations of tax legislation, which formally are not normative legal acts, but actually have regulatory properties.

One of the most pressing issues of tax legislation is the status of letters from the Russian Ministry of Finance. Can taxpayers consider them regulatory legal acts?

If the answer to this question is positive, then it means that taxpayers have the right to demand recognition of letters as invalid when they contradict the law. If the answer is no, then the letter, no matter what instructions it may contain, is only the opinion of an official, and, therefore, any requirement to recognize it as invalid will be simply absurd.

Since the legislation is silent on this matter, it is up to the judiciary to resolve the problem. And the judicial authorities have repeatedly spoken out on this issue, considering the status of letters from the Ministry of Finance, the Ministry of Taxes and the Federal Tax Service of Russia. But their points of view are often directly opposite (see "Pros and Cons").

The last time the Supreme Arbitration Court of the Russian Federation spoke on this issue was in Decision No. 15182/06 of March 6, 2007. Despite the fact that it was issued back in March, its text was made public only recently.

This time, the Supreme Arbitration Court of the Russian Federation took the side of the taxpayers, recognizing that in certain cases letters from the authorities may be normative acts subject to appeal in arbitration courts (see “Arguments of the Supreme Arbitration Court of the Russian Federation”).

The Ministry of Finance disagrees with the arbitrators

Although the Supreme Arbitration Court of the Russian Federation has clearly stated the possibility of recognizing the letters of the Ministry of Finance of Russia as normative acts, the latter has a different opinion on this matter. In Letter No. 03-02-07/2-138 dated August 7, 2007, the financial department indicated that it issues regulatory legal acts in the form of an order or in another form established by federal law in accordance with the Rules for the preparation of regulatory legal acts ... approved by Decree of the Government of the Russian Federation dated 08/13/97 No. 1009. Paragraph 2 of the said Rules establishes that the publication of regulatory legal acts in the form of letters and telegrams is not allowed.

Written explanations of the Ministry of Finance of Russia on the application of legislation on taxes and fees do not contain legal norms and are not aimed at establishing, changing or repealing legal norms, are not regulatory legal acts, and therefore they are not subject to mandatory publication. The publication of these letters is carried out in an informal manner. This applies both to answers to questions from taxpayers and to letters addressed to the Federal Tax Service of Russia.

Answers prepared at the request of taxpayers are not binding on tax authorities and taxpayers. The published written explanations of the Ministry of Finance should be taken "along with other publications of specialists in this field."

The explanations sent by the financial department to the Federal Tax Service are also not regulatory legal acts and do not contain legal norms. They are not aimed at establishing, changing or abolishing legal norms and are not subject to preparation and registration in the manner prescribed for regulatory legal acts.

As you can see, unlike the Supreme Arbitration Court of the Russian Federation, the ministry denies the very possibility of recognizing the letter as a normative act. However, from a practical point of view, the position of judges on this issue is much more important for taxpayers.

PROS AND CONS

The letter of the Ministry of Finance is not normative act

The letter is a normative act and can be challenged in court

As follows from Letter No. 03-02-5/2/35 of June 10, 2004 of the Ministry of Finance of Russia, this document contains explanations of tax legislation that do not oblige anyone to anything. It does not establish rules of conduct binding on an indefinite circle of persons, therefore it is not of a normative nature and, therefore, cannot have legal significance and give rise to legal consequences for an indefinite circle of persons.

In these circumstances, the application for invalidation of para. 7 of the said Letter is not subject to consideration.

Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 19, 2006 No. 13322/04

The letters disputed by the applicant are not normative legal acts, since they do not establish legal norms, and also did not undergo state registration with the Ministry of Justice of Russia, which is mandatory for normative legal acts.

In addition, Letter No. 03-05-01-05/54 of the Tax and Customs Tariff Policy Department of the Russian Ministry of Finance dated May 3, 2005, disputed by the applicant, is a response to the request.

Determination of the Supreme Court of the Russian Federation of December 27, 2005 No. GKPI05-1625

Letter No. 09-0-10/4223 of October 26, 2004 of the Federal Tax Service of Russia establishes rules of conduct that are mandatory for an indefinite circle of persons and are designed for repeated use. Failure to comply with this requirement may result in legal consequences in the form of a denial of state registration based on the submission to the registration authority of an application signed by an unauthorized person, which is a violation of the rights and legitimate interests of economic entities in the field of entrepreneurial activity and impose additional responsibilities on them.

Decision of the Supreme Arbitration Court of the Russian Federation dated May 29, 2006 No. 2817/06

Letter No. 04-2-06/127 dated February 17, 2004 of the Ministry of Taxation of Russia contains signs of a regulatory legal act. The court indicated that this Letter was addressed to the tax authorities and aimed at establishing a uniform procedure for taxing daily income tax individuals, which, at the direction of the Ministry of Taxation of Russia, should be brought to the lower (subordinate) tax authorities, which distinguishes this Letter from clarifications on specific issues of taxpayers.

Decision of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 26, 2005 No. 16141/04

ARGUMENTS OF YOU RF

The joint-stock company applied to the Supreme Arbitration Court of the Russian Federation with a request to invalidate the Letter of the Ministry of Finance of Russia dated January 16, 2006 No. 03-04-15 / 01, referring to the fact that, guided by it, the tax inspectorate unlawfully charged additional VAT to the company.

The court concluded that by Letter No. 03-04-15/01 dated 16.01.2006, the Ministry of Finance of Russia established a legal norm binding on an indefinite circle of persons, which is a sign of a normative legal act. Consequently, the company reasonably applied to the Supreme Arbitration Court of the Russian Federation with a statement to invalidate the provision this letter violating his rights.

The provision of the Letter, violating the tax legislation, was declared invalid. The court motivated its position with the following arguments:

the Ministry of Finance of the Russian Federation is vested with the authority to issue regulatory legal acts on issues of taxes and fees;

tax authorities in accordance with sub. 5 p. 1 art. 32 of the Tax Code of the Russian Federation are obliged to be guided by written explanations of the Ministry of Finance of Russia on the application of legislation on taxes and fees;

it follows from the text of the disputed Letter that the provision contained in it establishes mandatory rules for the formation of the tax base when taxpayers perform construction and installation works for their own consumption;

The Federal Tax Service sent a Letter from the Ministry of Finance of Russia dated 16.01.2006
No. 03-04-15/01 to lower tax authorities for use in their work and to inform taxpayers about it;

the contested provision of Letter No. 03-04-15/01 of the Russian Ministry of Finance dated 16.01.2006 was actually applied to the joint-stock company during an in-house tax audit.

OPINION OF THE SPECIALIST

The decision of the Supreme Arbitration Court of the Russian Federation was commented by the candidate of legal sciences, partner law firm Pepeliaev, Goltsblat & Partners Rustem AKHMETSHIN:

- The Supreme Arbitration Court of the Russian Federation has repeatedly spoken out about the status of letters from the Ministry of Finance and the Federal Tax Service of Russia. Moreover, the point of view of the judges on this issue has repeatedly changed - judicial acts have been passed both for and against considering the letters as normative acts.

It must be said that Letter No. 03-04-15/01 of the Russian Ministry of Finance dated January 16, 2006 is not the most “convenient” document for appeal. There are several points that testified not in favor of the fact that it should not be considered a normative act:

· it is signed by the director of the department, not by the minister;

· it has not been officially published;

· This Letter is an answer to a private question.

Nevertheless, the arbitrators decided that the above difficulties do not exclude the possibility of challenging the Letter as a normative act in court. After all, the director of the department has the right to give explanations of the legislation on behalf of the ministry. Although the Letter was not published, the Supreme Arbitration Court of the Russian Federation decided that the possibility of its recognition as a normative act does not depend on compliance with formal requirements. And the fact that it deals with a special case also does not prevent it from being challenged by the taxpayer, to which its provisions were applied.

Referring to the Tax Code of the Russian Federation, the judges pointed out that the clarifications of tax legislation coming from the Ministry of Finance are mandatory for employees of the Federal Tax Service of Russia. And the Tax Service brought the Letter dated 16.01.2006
No. 03-04-15/01 to the attention of taxpayers, thereby ensuring its repeated application. The judges considered that this clearly indicated its normative nature.

At the same time, the Supreme Arbitration Court of the Russian Federation still did not make an unambiguous conclusion that any letter, by definition, is a normative act. Decision No. 15182/06 dated March 6, 2007 states that this issue should be resolved taking into account all the circumstances of the case. Therefore, the question of whether this or that letter of the ministry can be challenged in the arbitration court should be decided separately for each application of the taxpayer.

On the whole, we can say that the Supreme Arbitration Court of the Russian Federation made a decision that was useful for taxpayers. True, this decision was made in the first instance, and it cannot be ruled out that it will be appealed in the supervisory procedure.