29.10.2010
Complaint to the Constitutional Court requesting that the words "in
the amount of 30 percent" in article 224, section 3 of the Tax Code of
the Russian Federation, as applied to nonresident citizens of the
Russian Federation, be declared unconstitutional
29 October 2010
Constitutional Court of the Russian Federation
Address: 190000, Saint Petersburg, Senatskaya ploschad', 1
Complainant:
Address:
Representative: counsel
Address:
Statute being contested: the words "in the amount of 30 percent" in
article 224, section 3 of the Tax Code of the Russian Federation, as
applied to nonresident citizens of the Russian Federation
Published in the following editions:
Sobranie Zakonodatel'stva RF ("Collected Legislation of the Russian
Federation"), 5 December 1994, No. 32, article 3301
Rossiyskaya Gazeta ("Russian Newspaper"), Nos. 238-239, 8 December
1994
Statute adopted by:
State Duma of the Federal Assembly of the Russian Federation
Address: Moscow, Okhotnyy Ryad, 1
Complaint
requesting that the words "in the amount of 30 percent" in article
224, section 3 of the Tax Code of the Russian Federation, as applied
to nonresident citizens of the Russian Federation, be declared
unconstitutional
I am a citizen of the Russian Federation and my place of permanent
residence is in Russia. From 1 October 2005 to 18 July 2009 I was
enrolled in a course of study in the United Kingdom of Great Britain
and Northern Ireland. I returned to Russia in April 2008 for the
purpose of delivering a course of lectures in the Ural Institute of
Economics, Management, and Law. In calculating my wage for the course
that I taught, a 30 percent income tax was withheld, with reference to
article 224, section 3 of the Tax Code of the Russian Federation
(hereinafter: Tax Code). I believe that this was a violation of my
right to use of property and discrimination against me on the basis of
my place of residence.
The reason for my application to the Constitutional Court of the
Russian Federation is the uncertainty as to whether the words "in the
amount of 30 percent" in article 224, section 3 of the Tax Code of the
Russian Federation (hereinafter: Tax Code), as applied to nonresident
citizens of the Russian Federation, comply with the Constitution of
the Russian Federation and the Convention for the Protection of Human
Rights and Fundamental Freedoms.
According to the aforementioned rule, the rate of taxation applied to
all income of natural persons who are not tax residents of the Russian
Federation is set at the amount of 30 percent, while the income tax
rate applicable to resident citizens of the Russian Federation under
section 1 of the same article is 13 percent.
I believe that the words "in the amount of 30 percent" in article 224,
section 3 of the Tax Code, as applied to nonresident citizens of the
Russian Federation, contradicts article 15, part 1; article 19;
article 35, part 2; and article 55, parts 2 and 3 of the Constitution
of the Russian Federation.
1. VIOLATION OF PROPERTY RIGHTS
The disputed standard restricts my property rights secured under
article 35, part 2 of the Constitution of the Russian Federation and
article 1 of Protocol 1 to the Convention for the Protection of Human
Rights and Fundamental Freedoms (hereinafter: Convention).
The 30 percent tax was withheld in violation of the Constitution of
the Russian Federation, the Convention for the Protection of Human
Rights and Fundamental Freedoms, and principles of tax law. This
amounts to a violation of my property rights.
The imposition of the income tax at the 30 percent rate instead of the
13 percent rate deprived me of the right to use the 17 percent part of
my wage that was withheld per section 3, article 224 of the Tax Code.
Depriving me of the right to use 17% of my wage is an unlawful
withholding of my funds, and inevitably affects the interests of
society.
The law's restriction of my right to use my property must be
proportionate. In Sporrong and Loennroth v. Sweden, 23 September 1982
(A 52 (1982)), the European Court of Human Rights (hereinafter: ECHR)
formulated the following important principle regarding the
justifications for intervention: "The court must determine whether a
fair balance between the interests of society and the conditions
necessary for protection of the individual's fundamental rights was
observed. . . . An aspiration to achieve such a balance is peculiar to
the Convention for the Protection of Human Rights and Fundamental
Freedoms as a whole, and is also reflected in the structure of article
1 of Protocol 1 of the Convention."
Deprivation of the right to use 17 percent of my wage cannot be
considered a necessary condition for the defense of human rights.
Rather, it is a violation of human rights, and it does not further the
objective of achieving a fair balance between the requirements of
society's interests and the conditions necessary for the protection of
the fundamental rights of the individual.
2. VIOLATION OF THE RIGHT TO EQUAL TREATMENT
Article 19, part 2 of the Constitution of the Russian Federation
establishes that "the state guarantees equality in rights and freedoms
of persons and citizens regardless of . . . their place of residence."
According to article 35, part 2 of the Constitution of the Russian
Federation, "Each person has the right to own property, to possess,
use, and dispose of it both individually and jointly with others."
According to article 55, part 3 of the Constitution of the Russian
Federation, "The rights and freedoms of persons and citizens may be
restricted by federal law only to the extent necessary for the purpose
of protecting the foundations of the constitutional order, morals, the
health, rights, and legal interests of other persons, the provision of
the country's defense and national security," but the disputed
standard does not pursue those goals indicated in the Constitution.
I am a citizen of Russia. A 30 percent income tax was imposed on me in
connection with my departure from the Russian Federation for the time
of my studies, which lasted over six months.
Thus, the criterion chosen by the legislature for distinguishing
persons by applying different tax rates depending on their place of
residence is discriminatory, since it is based not on an economic
criterion, but depends on location, and contradicts the Constitution,
as well as the provisions of the Tax Code, the principle of equality
of taxation established in article 3, sections 1 and 2 of the Tax
Code, which itself follows from article 8, part 2; article 19, part 1;
and article 57 of the Constitution of the Russian Federation.
The words "in the amount of 30 percent" in article 224, section 3 of
the Tax Code, as applied to nonresident citizens of the Russian
Federation, also violates article 14, "Prohibition of discrimination,"
of the Convention for the Protection of Human Rights and Fundamental
Freedoms. According to that article, "The enjoyment of the rights and
freedoms set forth in this Convention shall be secured without
discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin,
association with a national minority, property, birth or other
status."
The list of grounds for discrimination enumerated in article 14 of the
Convention is not exhaustive. This is particularly apparent from the
words "or other status." Discrimination on the basis of place of
residence amounts to discrimination on the basis of such "other
status."
"Article 14 (art. 14) is concerned with the avoidance of
discrimination in the enjoyment of the Convention rights in so far as
the requirements of the Convention as to those rights can be complied
with in different ways. The notion of discrimination within the
meaning of Article 14 (art. 14) includes in general cases where a
person or group is treated, without proper justification, less
favourably than another, even though the more favourable treatment is
not called for by the Convention." Case of Abdulaziz, Cabales and
Balkandali v. the United Kingdom, paragraph 82.
The legislature's discretion in determining tax control is not
unlimited. Discretion is applicable only for the purpose of ensuring
that taxpayers comply with their obligations. In particular, the
legislature cannot establish discriminatory conditions (e.g. permanent
residence in the Russian Federation) that impinge upon taxpayers'
constitutional rights (e.g. property rights).
The principal aim of the law in a democratic state based on the rule
of law is to secure justice. Other objectives are subordinate to this
principal aim. These include effective tax administration for which
the enactment of unjust laws is unacceptable. A law that
disproportionately restricts the basic rights of the individual and
property rights on the basis of temporary place of residence will be
considered unjust. Thus, a representative of the State Duma of the
Russian Federation must prove that the state's application of a legal
restriction to property rights by applying an income tax rate to
nonresident Russian citizens 17 percent higher than the rate imposed
on resident Russian citizens aims at a lawful purpose. A
representative of the State Duma of the Russian Federation must prove
that such a restriction is commensurate with its purpose and complies
with the principle of fair balance.
It follows from the foregoing arguments that my right to use my
property was violated under the tax law rule that causes the rate at
which citizens of the Russian Federation pay income tax to depend on
their place of residence. The words "in the amount of 30 percent" in
article 224, section 3 of the Tax Code, as applied to nonresident
citizens of the Russian Federation, violates not only my rights, but
also the rights of all persons subject to this rule. In other words,
the rule violates the rights of an unlimited number of people.
On the basis of the foregoing, pursuant to article 125, part 4 of the
Constitution of the Russian Federation, articles 3, 36, 74, 96, and 97
of the Federal Constitutional Law On the Constitutional Court of the
Russian Federation,
I hereby request that:
The words "in the amount of 30 percent" in article 224, section 3 of
the Tax Code of the Russian Federation, as applied to nonresident
citizens of the Russian Federation, be declared in violation of
article 8, part 2; article 15, part 1; article 19; article 35, part 2;
and article 55, parts 2 and 3 of the Constitution of the Russian
Federation, as well as article 1 of Protocol 1 to the Convention for
the Protection of Human Rights and Fundamental Freedoms in conjunction
with article 14 of the Convention for the Protection of Human Rights
and Fundamental Freedoms.
ATTACHMENTS:
1. Document confirming my presence from 1 October 2005 to 18 July
2009 in the United Kingdom of Great Britain and Northern Ireland
while I was enrolled in a course of study (3 copies).
2. Statement of income of natural person for 2008, from the
accounting department of the Ural Institute of Economics,
Management, and Law, indicating withholding of a 30 percent income
tax (3 copies).
3. Copy of complaint (3 copies).
4. Receipt of payment of state duty (100 rubles) (3 receipts).
5. Counsel's power of attorney (3 copies).
____________________, 2010
Добавить комментарий: