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Новости судебных дел

Судебное дело "Обжалование 30-ти процентного налога (дело в ЕСПЧ № 4985/12), которым облагаются нерезиденты-граждане Российской Федерации (вместо общеустановленного 13-ти процентного налога) "


DECISION by Constitutional Court of the Russian Federation Dismissing the complaint of Mr. ____________________ claiming violation of his constitutional rights under article 224, section 3 of the Tax Code of the Russian Federation.

 

14.07.2011

 

                                  DECISION

               Constitutional Court of the Russian Federation

   Dismissing   the   complaint   of  Mr.  ____________________  claiming
   violation of his constitutional rights under article 224, section 3 of
   the Tax Code of the Russian Federation.

   Saint Petersburg 14 July 2011

   The  Constitutional  Court  of  the  Russian Federation, consisting of
   Chairman  V. D. Zorkin, Justices K. V. Aranovsky, A. I. Boitsov, N. S.
   Bondar, G. A. Gadzhiyev, Yu. M. Danilov, L. M. Zharkova, G. A. Zhilin,
   S.  M. Kazantsev, M. I. Kleandrov, S. D. Knyazev, A. N. Kokotov, L. O.
   Krasavchikova,  S.  P.  Mavrin,  N.  V. Melnikov, Yu. D. Rudkin, O. S.
   Khokhryakova, V. G. Yaroslavtsev,

   Having considered, by demand of Mr. ____________________, the issue of
   the  possibility  of  considering  his  claim  in  a proceeding of the
   Constitutional Court of the Russian Federation,

   Has established as follows:

    1. In  his  complaint  to  the  Constitutional  Court  of the Russian
       Federation,      Mr.     ____________________     disputes     the
       constitutionality  of  the  words  "at  a  rate  of 30 percent" in
       section 3 of article 224, Tax Rates, chapter 23, Tax on the Income
       of Natural Persons, of the Tax Code of the Russian Federation.

   According  to the complainant, the imposition of a personal income tax
   at  the  rate  of 30 percent to citizens of the Russian Federation who
   are   not   tax   residents  of  the  Russian  Federation  amounts  to
   discrimination  on  the  basis  of  place  of residence, and causes an
   incommensurate  restriction on property rights, and therefore violates
   articles 8 (part 2), 15 (part 1), 19, 35 (part 2), and 55 (parts 2 and
   3)  of  the Constitution of the Russian Federation, as well as article
   14   of  the  Convention  for  the  Protection  of  Human  Rights  and
   Fundamental Freedoms and article 1 of Protocol 1 to said Convention.

    2. The Constitutional Court of the Russian Federation, having studied
       the  materials  presented  by  Mr.  ____________________, finds no
       grounds for accepting his complaint for trial.

   According  to the interconnected provisions of articles 8 (part 2), 19
   (parts 1 and 2), and 57 of the Constitution of the Russian Federation,
   the  regulation  of tax relations must comply with the requirements of
   the constitutional principle of equality. This means that the law must
   provide  legal  guarantees  that  equal persons subject to taxation be
   taxed  at  equal  rates.  The  Tax Code of the Russian Federation also
   follows  these requirements, providing that taxes and duties cannot be
   discriminatory  in  character,  and  may not be applied variously with
   reference  to  social,  racial,  national, religious, or other similar
   criteria,  and prohibiting the establishment of differentiated tax and
   duty  rates  and  tax  exemptions  depending  on  forms  of ownership,
   citizenship  of  natural  persons,  or place of origination of capital
   (article 3, section 1 and paragraphs 1 and 2 of section 2).

   At  the  same  time,  due  to the legal position of the Constitutional
   Court  of  the  Russian  Federation,  as  expressed in a number of its
   decisions,   including  Resolution  7-P,  dated  27  April  2001,  the
   principle  of  equality  does not exclude the possibility that various
   legal  conditions  may be established for various categories of rights
   bearers.   Applying   this   legal   position,   which  bears  general
   significance  for  all  areas of legal regulation, to the field of tax
   relations leads to the conclusion that the constitutional principle of
   equality  does not prevent the legislature from using a differentiated
   approach  to  establishing  various  systems of taxation for different
   categories  of  taxpayers,  as long as the differentiation is based on
   objective factors such as economic characteristics of the tax base and
   the peculiarities of the taxpayers qua taxpayers.

   The  legislature,  in setting personal income tax rates in article 224
   of  the  Tax  Code of the Russian Federation, varied them according to
   the  source  of  income and category of taxpayer: whether the taxpayer
   qualifies  as  a  tax resident of the Russian Federation. According to
   article  207  of the Tax Code of the Russian Federation, which defines
   payers of the personal income tax, a natural person's qualification as
   a tax resident of the Russian Federation does not depend on his or her
   citizenship:  natural  persons who are actually present in the Russian
   Federation  for  at  least  183  calendar  days  during  a  continuous
   twelve-month period qualify as tax residents. Furthermore, persons who
   are  not  tax residents of the Russian Federation qualify as payers of
   the  tax  only  for income from sources within the Russian Federation,
   while  tax residents of the Russian Federation are required to pay the
   tax on income from sources both within the Russian Federation and from
   sources  outside  the  Russian  Federation (article 207, section 1 and
   article 209 of the Tax Code of the Russian Federation).

   Thus,  in  this case the setting of differentiated personal income tax
   rates  is  based  on  an  objective criterion characterizing a natural
   person's   connection   with  the  tax  jurisdiction  of  the  Russian
   Federation,  and  may not be considered discriminatory toward citizens
   of  the  Russian  Federation on the basis of their place of residence.
   Therefore,  we  cannot agree with the complainant's assertion that the
   disputed legal provision violates his constitutional rights.

   On  the  basis  of  the  foregoing and pursuant to article 40, part 2;
   article  43,  part  1,  section 2; article 79, part 1; article 96; and
   article  97  of the Federal Constitutional Law, "On the Constitutional
   Court  of  the  Russian  Federation,"  the Constitutional Court of the
   Russian Federation hereby:

   Decides:

    1. To dismiss the complaint of Mr. ___________________ on the grounds
       that  it  does  not  comply  with  the requirements of the Federal
       Constitutional  Law,  "On  the Constitutional Court of the Russian
       Federation,"  under  which a complaint to the Constitutional Court
       of the Russian Federation may be considered acceptable.
    2. The decision of the Constitutional Court of the Russian Federation
       on this complaint is final, and is not subject to appeal.

   Chairman

   Constitutional Court of the Russian Federation V. D. Zorkin

   No. 949-O-O


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