The trial has been going on for almost a year and a half, in which the owners of Moscow shopping centers are trying to challenge the Moscow government’s decree, which retroactively increased the cadastral value of 2,502 buildings and premises. Thus, the mayor’s office managed to charge additional taxes by 12.5 billion rubles.

Now the property owners were able to prove the illegality of this decision. On Thursday, the Supreme Court issued a ruling in which it considered the conclusions of the Moscow City Court, which considered the case in the previous instance, to be unfounded and decided to return the case to the court of first instance for consideration on the merits, a representative of the law firm Consul Group, which is leading a class action lawsuit, told Vedomosti. owners.

Owners of shopping centers have a chance to return overpaid property taxes for 2016. A representative of the Supreme Court did not answer Vedomosti’s questions.

In the last week of 2016, the Moscow government published a decree signed by Mayor Sergei Sobyanin: it provides a new cadastral value for capital construction projects in different districts. The resolution came into force from the moment of publication, which came as a surprise to the owners. The cadastral value of the objects was increased many times - from 3 to 15 times - and applied to the entire tax period of 2016, a representative of Consul Group noted.

The tax base for real estate is determined as their cadastral value as of January 1 of the year, which became the tax period, the Ministry of Finance recalled.

However, a technical error occurred; incomplete information about the objects was used during the cadastral valuation, a representative of the Moscow City Property Department explained the revision of the decision. “The Rosreestr information about real estate properties indicated their incorrect purpose,” said a representative of the Moscow Department of Economic Policy and Development. Because of this, elite office and retail properties in the Central Administrative District (“Nautilus” on Lubyanka Square, “Domnikov” on the Garden Ring) were taken into account as social objects or objects of unknown purpose, their cadastral value was underestimated several times and amounted to 18,000 rubles . for 1 sq. m.

“They paid like for basements, although for similar objects they paid taxes on the cadastral value, which was close to the market value, at 250,000–350,000 rubles. for 1 sq. m,” said a representative of the Department of Economic Policy. Having noticed the error, the authorities initiated a revaluation of the value of objects for taxation, and its results became known only at the end of the year.

Lawyers filed a lawsuit demanding that one of the clauses of the resolution, which allowed the application of the new cadastral value retroactively, be invalidated. The first instance discontinued the proceedings, considering that the decision did not affect the rights of the applicants - while the tax authorities assessed additional tax on this very point. The appeal to the court of appeal was also rejected. The lawyers filed a cassation appeal four times, the first three were returned to the applicant by the Moscow City Court, but on the fourth time the appeal was considered and rejected.

The outcome of the consideration of the case in the Supreme Court was determined by the position of the Ministry of Finance. The Ministry informed the tax service that the increased cadastral valuation of real estate cannot be the basis for determining tax in the current and previous tax periods - but if the recalculation has reduced the cadastral value, then it can be applied.

“Today’s victory is decisive in the dispute between the taxpayer and the tax service,” says Sergei Pivovarchik, managing partner of Consul Group. The courts routinely refuse taxpayers to dispute with the tax authorities, and now if the Supreme Court said that the Moscow government’s resolution affects the rights of taxpayers and its legality needs to be considered, and there is a direct violation of the law that the Moscow City Court must eliminate, then the courts will have to take this into account.

Determinations of the Supreme Court can be formative in judicial practice - they influence the position of lower courts, or unmotivated - when the court does not provide detailed arguments on a particular issue, the impact of this decision on other processes will directly depend on what the Supreme Court wrote and on what grounds returned the case for a new trial, explains Pepeliaev Group lawyer Alexey Konevsky.

The Supreme Court supported the owners of shopping centers in a dispute against Moscow