The Constitutional Court of the Republic of Belarus comprising the Presiding Officer – Chairman of the Constitutional Court of the Republic of Belarus P.P. Miklashevich, Deputy Chairman A.V. Maryskin, judges T.S. Boiko, T.V. Voronovich, S.Y. Danilyuk, V.P. Isotko, L.G. Kozyreva, V.V. Podgrusha, L.M. Ryabtsev, O.G. Sergeeva, A.G. Tikovenko, S.P. Chigrinov

according to part eight of Article 22 of the Code of the Republic of Belarus on Judicial System and Status of Judges

in the exercise of the right to submit proposals to the President of the Republic of Belarus, the chambers of the National Assembly of the Republic of Belarus, the Council of Ministers of the Republic of Belarus, other state bodies within their competence, on the need to make alterations and (or) addenda to the acts of legislation, to adopt new normative legal acts within the competence of the Constitutional Court,

considered in court session an application of the Supreme Economic Court of the Republic of Belarus concerning the practice of judicial appeal against interpretation of tax legislation to be applied given by state bodies upon the appeal of business entities.

The application pointed out the different approaches taken by economic courts and other state bodies when applying particular provisions of the Edict of the President of the Republic of Belarus of October 15, 2007 No. 498 «On Additional Measures when Considering Individuals’ and Legal Entities’ Appeals». Economic courts are filed with applications for nullification of legislation interpretations to be applied given by tax authorities upon the appeal of economic entities. In doing so the applicants allege subpoint 1.3 of point 1 of the named Edict of the President of the Republic of Belarus of October 15, 2007 No. 498, according to which the decision of an organisation upon the appeal may be challenged either in a higher parent state body or in another organisation, and the decision of a higher state body may be appealed to court.

In the opinion of the Supreme Economic Court, the interpretation of legislative rules to be applied given by an authorised body upon the appeal, is not a decision of this body, as it is not binding, does not impose rights and obligations on a particular person, and therefore is not subject to appeal in economic court proceedings, and economic courts are not entitled to official interpretation of legislation.

The Ministry of Taxes and Duties of the Republic of Belarus and the State Control Committee of the Republic of Belarus believe that the decisions of tax authorities on tax legislation to be applied may be appealed to court on the basis of the rules of subpoint 1.3 of point 1 of the Edict of the President of the Republic of Belarus of October 15, 2007 No. 498, and also point 17 of the List of state bodies and other organisations charged with consideration of appeals on the merits in certain spheres of social life, approved by the Edict.

Having analysed the rules of the Constitution, the General Part of the Tax Code of the Republic of Belarus (hereinafter - the Tax Code), the Economic Procedural Code of the Republic of Belarus, the Law of the Republic of Belarus «On Normative Legal Acts of the Republic of Belarus», the Law of the Republic of Belarus «On citizens' Appeals», Edict of the President of the Republic of Belarus of October 15, 2007 No. 498 «On Additional Measures when Considering Individuals’ and Legal Persons’ Appeals» (hereinafter - the Edict No. 498), other normative legal acts of the Republic of Belarus, the Constitutional Court found the following.

1. In accordance with Article 21 of the Constitution safeguarding the rights and liberties of the citizens of the Republic of Belarus shall be the supreme goal of the State; the State shall guarantee the rights and liberties of the citizens of Belarus that are enshrined in the Constitution and the laws, and specified in the state's international obligations.

Among the rights and freedoms guaranteed by the Constitution there is a right to file individual or collective appeals to state bodies (Article 40 of the Constitution).

One of the ways to ensure the rights and freedoms of the citizens of the Republic of Belarus is to protect them by a competent, independent and impartial court of law in the time specified in law (Article 60 of the Constitution).

These constitutional guarantees shall also apply to individual entrepreneurs and legal entities.

2. The rules of the Law «On Citizens' Appeals» and Edict No. 498 both define the mechanism for the exercise of the constitutional right of citizens to appeal to state bodies.

Point 2 of the Edict No. 498 approved the list of state bodies and other organisations charged with consideration of appeals on the merits in certain spheres of social life (hereinafter - the List).

The appeals regarding also interpretation of tax legislation, are to be considered on the merits by state bodies and other organisations specified in the List, if their issues lie in the relevant spheres of public relations.

In accordance with point 17 of the List, the state bodies charged to consider appeals on taxation (interpretation of tax legislation) are inspections of the Ministry of Taxes and Duties of districts, cities, city districts. According to part three of point 2 of the Edict No. 498 their decisions taken upon the appeals, may be challenged in higher parent state bodies: inspections of the Ministry of Taxes and Duties of regions, of the city of Minsk and the Ministry of Taxes and Duties. A decision of a higher state body may be appealed to court (subpoint 1.3, point 1 of the Edict No. 498).

Established in Edict No. 498, the procedure of consideration of appeals regarding interpretation of tax legislation by tax authorities has found further development in the Tax Code. The Law of the Republic of Belarus of 13 November, 2008 redrew the subpoint 1.5, point 1 of Article 82 of the Tax Code, and charged the tax authorities and their officials with giving written interpretations to payers (other liable parties) of acts of tax legislation to be applied.

3. According to Article 3 of the Law «On Normative Legal Acts of the Republic of Belarus» legal acts are not normative, if adopted (issued) in order to carry out specific (single), organisational, supervisory or regulatory activities or designed for another single application.

The legal analysis of decisions of higher tax authorities, taken upon appeals regarding interpretation of tax legislation, shows that they are characterised by the following features:

they are taken by authorised state bodies charged to consider the appeals;

they express the will of the state body for legal regulation of specific social relations;

they are individual in nature and designed for single application;

they entail certain legal consequences, as they may affect the rights and responsibilities of individuals.

According to the Constitutional Court, decisions of superior tax authorities, taken upon appeals regarding interpretation of tax legislation, are non-normative legal acts, which are designed for single application and are individual in nature.

4. According to Article 112 of the Constitution the courts shall administer justice on the basis of the Constitution, the laws and other normative legal acts adopted in accordance therewith.

The Economic Procedural Code establishes that economic courts shall consider in administrative proceedings economic (commercial) disputes arising from administrative and other public relations specified in Article 42 of the Code, as well as other cases, consideration of which under legislative acts come within the competence of economic courts.

The Constitutional Court believes that a decision of a superior tax authority, taken upon the appeal regarding interpretation of tax legislation, as a legal act of non-normative nature may be appealed to the Economic Court in accordance with the stated above provisions of the Economic Procedural Code in coherence with the provisions of point 1 and 2 of the Edict No. 498.

5. Pursuant to available materials on 19 May 2009 the Supreme Economic Court forwarded a letter to economic courts of the regions and the city of Minsk stating that, with respect to subpoint 1.3 of point 1 of the Edict No. 498 the interpretation of legislation to be applied given by a state body upon the appeal of an economic entity, is not a decision of this body and may not be appealed to the Economic Court.

The Constitutional Court notes that economic courts executing the order, contained in the letter of the Supreme Economic Court of May 19, 2009, are not provided with opportunities to exercise everyone’s constitutional right of access to justice.

The right of the Supreme Economic Court to give interpretation of legislation to be applied has been established in article 69 of the Code «On Judicial System and Status of Judges».

The Constitutional Court considers that so as the interpretations of the Supreme Economic Court, affecting the rights and legitimate interests of taxpayers, contain generally binding rules of conduct for them and economic courts, it is necessary to comply with requirements of legislation on the form and content of such interpretations.

In accordance with article 74 of the Code on Judicial System and Status of Judges the review of material of generalised judicial practice of resolving the economic (commercial) disputes and adopting resolutions on legislation to be applied in entrepreneurial and economic (commercial) activities, which are normative in nature, shall fall within the competence of the Plenum of the Supreme Economic Court of the Republic of Belarus.

Therefore in view of the foregoing pursuant to part eighth of article 22 of the Code of the Republic of Belarus on Judicial System and Status of Judges, the Constitutional Court of the Republic of Belarus

RULED:

1. In order to exercise everyone’s, including taxpayers, constitutional right to judicial protection, to recognise as necessary the opportunity to appeal to court against decisions of higher tax authorities, taken upon the appeals regarding taxation (interpretation of tax legislation).

2. To propose to the Supreme Economic Court of the Republic of Belarus to take a resolution of the Plenum of the Supreme Economic Court of the Republic of Belarus on this issue according to legislative acts.

3. The present Decision shall come into legal force from the date of its adoption.

4. To publish the present Decision in accordance with legislation.

Presiding Officer-

Chairman of the Constitutional Court

of the Republic of Belarus

P.P.Miklashevich