Translated material
Blonde and dinosaur
Chairman of the Supreme Arbitration Court Anton Ivanov - The New Times
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Anton Ivanov -
Andrei Kolesnikov
Anton Aleksandrovich, the court of first instance, recognized as unjusting to the inclusion of PWC foreign consultants in the auditor's expenses, which was very negatively perceived by the business community. The Supreme Arbitration Court did not approve this decision and sent the case for a new consideration. The court of first instance found new arguments confirming the guilt of the company. How will this matter develop further?
I cannot speak out from these new arguments, since they have not yet been considered by us. I can only comment on the resolution of the Presidium of you, which served as the basis for sending the PWC case for a new consideration.
The main issue in that decree of the Presidium was the question of the distribution of the burden of proof. Who should prove that the costs of foreign companies were not economically justified? We expressed the following legal position: the taxpayer must submit documents that are required in accordance with the law to justify expenses. If these documents formally meet the requirements that are established, then the taxpayer fulfilled his obligation. There is something in the submitted documents, indicating economic unreasonableness, or not-the burden of proof lies already on the tax authority.
- too complicated right -
The resolution of the Plenum of you No. 53 obliges the tax authorities to prove the absence of a business goal among entrepreneurs, and not just mechanically start the persecution for tax failure. The resolution has been valid for a year. How are the relations between the tax authorities and the courts?
These relations in any country are difficult. This is especially true for courts that consider complaints about the actions of the tax authorities. (After all, in Russia there are practically no administrative procedures for reconciliation, and almost all cases go to court. And in Europe more than half of the cases ends before the court.) We resolutely oppose the attempts of some tax authorities to apply our powers to put pressure on the court. For example, tax authorities sometimes turn to qualification colleges demanding to deprive the judge of authority when they have not yet been considered. No party should be able to influence the activities of judges, and tax authorities are no exception.
As for the decree, thanks to him the situation has become more clear and determined for taxpayers and tax authorities. Previously, there were frequent cases when the tax authorities provided the court simply a set of facts without a special analysis of the activities of taxpayers and this was enough. Now this is excluded in terms of meaning, it is necessary to study the economic essence of the operation.
For this year, some statistics have accumulated, which allows us to talk about changing the behavior of judges?
The number of taxes on taxes decreased quite significantly. This is due to the fact that the cases of recovery of fines are gone. The general trend is that a decrease in the number of minor affairs has led to an improvement in the quality of consideration of more serious cases. Judicial analysis has become deeper.
Do you have such a feeling that tax law has been overly complicated in Russia?
Yes, there is complication. The texts of the articles of the Tax Code are outlined. This is the text of bureaucratic instructions, not a norm designed for widely used. The problem is that in Russia there has never been an analogue of the Tax Code. In the Russian Empire there were fragmented tax laws, there was no single code. In Soviet times, they did not attach any importance to tax law, with the exception of taxes from individuals.
The current Tax Code is too formalized. When priority is given not to the economic nature of relations, but to formal clues, references to other laws, this inevitably entails problems. In a single mode, no one agreed. When you refer to another law, and it also changes, contradictions appear. The casuist and formal approach of our tax law is facilitated by the legislation on accounting, based on Soviet standards. If international financial reporting standards are based on the analysis of the economic essence, and not on the formal record in the papers, then in our accounting accounting the opposite is true.
So there are several reasons for the excessive complication of tax law in Russia: comparative youth of the legislation, lack of practice on application, formalization of accounting and ignoring the economic essence.
As a rule, the fact that there are more appeals to the court is evaluated positively: trust in court has grown, legal culture is improving. But does this not indicate the opposite - the non -renovation of legal and economic relations?
It all depends on the category of cases in which citizens are going to court. If this is a classic civilian dispute between two private individuals, then a more frequent appeal to the court may indicate two things: that citizens refuse to protect their rights, and the deterioration of the economic situation. But often another situation arises. In some regions there was a low percentage of civil cases. And when new investment projects begin to be implemented there and economic growth begins, the number of cases increases. This is evident in the example of the courts of Eastern Siberia and the Far East, the republics of the North Caucasus. There this can be regarded as evidence of positive changes.
Another story that attracted the attention of the public is a request from the Supreme Arbitration Court to the Constitutional Court (COP) regarding the relatives of judges abroad. It turns out that if the judge has relatives abroad, then he may not be allowed to work with GOSTAYA, which means that he should not be appointed by the judge. And it was you who turned to the COP for clarification. Why?
The motive is to eliminate the inconsistency between the two acts: the law on the status of judges, which suggests that the appointed judge is allowed to the information of GOSTINA without special verification, and the law on GOSTINA, which suggests that if relatives abroad, the person may not be allowed to work as a judge.
Imagine that you are the deputy chairman of the court and have been working in this position for about 20 years. Your relatives left for Germany for permanent residence. You go to a new term, and you tell you that since there are relatives abroad, then maybe you should not appoint you? Until now, on these grounds, the Higher Qualification Collegium has not refused anyone to appoint, but there is a risk. We want the Constitutional Court to determine what to do in such situations: we need certainty.
That is, in this whole story there is no political subtext related to the deterioration of attitudes towards foreigners?
No. We are just for making clear and transparent rules.
- Independence under the threat -
You have repeatedly said that the level of corruption in the courts is greatly exaggerated. Confirmation of your position appeared?
I continue to adhere to this point of view. I do not want to say that there are no cases of corruption in the judicial environment at all. Of course they are. But there are much less of them than it seems. A fair share of talk about corruption of judges is caused not by real facts, but by attempts by other lawyers to fill their price. Alas, we see that the young generation of lawyers often departs from traditional ethics. Stories about how a lawyer can go to a judge and decide for the money a case in favor of the client have already become ordinary. But this was not in Soviet practice, there is no current Western. Ask lawyers to give at least one example when a lawyer would be deprived of authority for such stories. I think they will not bring one. In addition, such a lawyer, even taking the money from the client, does not guarantee a positive result, and in the event of a loss in court, he usually argues that the nasty side “brought” the judge more. As in a famous joke, when the blonde was asked what the probability of meeting Dinosaurus Street? She replied that the probability is 50 percent: "either a meeting or not." So with lawyers who say that they can solve the case in court for money, the situation is about the same.
Another problem is that court decisions are poorly executed or not executed at all. What is the reason?
One of the reasons for the current situation is the poverty of citizens from which funds are recovered. When you have income below the subsistence minimum, of course, the bailiff will not be able to get anything. On the other hand, when there are many signs of poverty, you can mimic it under it. In the situation with legal entities, another aspect comes to the fore. This is a special method of doing business in which assets are laid out separately from the main operating activity. Therefore, when claims arise under the agreements by which this operational activity is carried out, it turns out that there are no assets from which the funds can be recovered. This principle of separation of assets and operations is an almost general rule of conducting activities in our country. The reasons for this are not a very intelligible tax policy and the danger of raider seizures. Well, most importantly: we still have not moved to the influence of people through the banking sphere when a business reputation determines the possibility of borrowing in banks. And the possibility of borrowing determines the volume of benefits that can be purchased.
What problems do you personally seem to you fundamental for the judicial system?
The main problem of the judicial system is the independence of judges. The task is not to strengthen it, but to defend it. Because attempts to limit the independence of judges are constantly undertaken. There are different bills that run mainly in our law enforcement agencies. They would very much like to give mandatory instructions to our judges. And this can be done only by limiting the independence of judges. Our task is to defend this mechanism. We can be proud of them. Because our guarantees of independence are more serious than in many European countries or in the USA.
And the possibilities of their preservation are great?
There is a chance. As in a joke. Either cut out or not. And seriously, we will make every effort to maintain the independence of judges.
The Supreme Arbitration Court is the highest judicial body for the permission of economic disputes and other cases considered by arbitration courts, exercises trial for their activities and gives clarifications on judicial practice. It is included in the Unified Judicial System of the country along with the Constitutional Court of the Russian Federation and the courts of general jurisdiction led by the Supreme Court of the Russian Federation.
Resolution of the Plenum of the Supreme Arbitration Court No. 53 of October 12, 2006: “The judicial practice of resolving tax disputes proceeds from the presumption of the good faith of taxpayers and other participants in the legal relations in the field of economics. In this regard, it is assumed that the actions of the taxpayer, which have the result of the receipt of tax benefits, are economically justified, and the information contained in the tax return and financial statements is reliable ... Tax benefit cannot be recognized as reasonable if the taxpayer is obtained outside the implementation of real entrepreneurial or other economic activities. It should be borne in mind that the possibility of achieving the same economic result with a lower tax benefit obtained by the taxpayer by performing other operations provided or not prohibited by law is not the basis for recognizing the tax benefit unreasonable. ”
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