Acts of the Constitutional Court
DECISION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS
8 December 2004 № D-180/2004
On constitutionality of Decision of Postavy regional Council of deputies of 29 December 2003 No. 40 "On budget of region for 2004" in part of setting of local due from natural persons for use of objects of infrastructure and Decision of Pukhovichy regional Council of deputies of 18 February 2004 No. 43 "On budget of region for 2004" in part of setting of purpose due from natural persons for maintenance and development of infrastructure of region

     The Constitutional Court of the Republic of Belarus comprising of the Presiding Officer - Chairman of the Constitutional Court G.A. Vasilevich, Deputy Chairman A.V. Maryskin, judges T.S. Boiko, V.V. Podgrusha, A.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, G.B. Shishko, V.Z. Shuklin, on the grounds of part four of Article 122 of the Constitution of the Republic of Belarus, having examined application of citizens on lawfulness of setting by Postavy regional Council of deputies of the local due from natural persons for use of objects of infrastructure and by Pukhovichy regional Council of deputies of purpose due from natural persons for maintenance and development of infrastructure of region found the following.

 

     1. Article 121 of the Constitution of the Republic of Belarus enshrines that the local Councils of deputies shall have the exclusive competence to set in accordance with the law the local taxes and dues.

 

     The Constitutional Court emphasizes that in accordance with part two of point 3 of Article 10 of the Law "On budget of the Republic of Belarus for 2004" (hereinafter is also referred to as Law) the due from users shall be set by Minsk city Council of deputies, Councils of deputies of based territorial level and shall be entered the relevant budgets.

 

     Payers of the dues from the users shall be organizations, individual entrepreneurs and natural persons (except for individual entrepreneurs - payers of single tax from individual entrepreneurs and other natural persons, as well as individual entrepreneurs who conform to simplified system of taxation). Objects of those dues shall be: parking in specially equipped places; trading in the territory of relevant administrative and territorial units; having the dogs in ownership or their use in entrepreneur activities; use of local symbolism; holding of auctions; hunting and fishing; building of objects in the territory of the relevant administrative and territorial units; other types of use of infrastructure of the relevant administrative and territorial units specifying by Minsk city Council of deputies, Councils of deputies of based territorial level (sub-item 1.4 of point 1 of Article 10 of the Law).

 

     Purpose dues (transport due for renewal and renovation of passenger transport, busses of international service and maintenance of departmental city electric transport, due for keeping and development of infrastructure of the city (region) (sub-item 1.3 of point 1 of Article 10 of the Law) shall be set by oblast, Minsk city Councils of deputies and are entered the relevant budgets of oblasts and the city of Minsk (part one of point 3 of Article 10 of the Law).

 

     Payers of purpose dues shall be organizations and individual entrepreneurs (except for individual entrepreneurs - payers of single tax from individual entrepreneurs and other natural persons, as well as individual entrepreneurs who conform to simplified system of taxation). Objects of taxation of those purpose dues shall be carrying out entrepreneur activities in the territory of the relevant administrative and territorial units (sub-item 1.3 of point 1 of Article 10 of the Law).

 

     Under point 4 of Article 10 of the Law local Councils of deputies shall set local taxes and dues after enforcement of the given Law and shall specify the payers, objects of taxation, tax base, tax rates in accordance with point 1 of Article 10; privileges for certain categories of payers, procedure of calculation and payment, terms for payment of local taxes and dues in accordance with the legislation of the Republic of Belarus.

 

     2. Decision of Postavy regional Council of deputies of 29 December 2003 No. 40 "On budget of region for 2004" has set in the territory of the region the following local dues from the users: for parking in specially equipped places; for trading in the territory of the region; from the owners of the dogs; for the right of use of regional symbolism; for holding auctions; for hunting and fishing; for building of projects in the territory of the region; for use of objects of infrastructure while locating small-scale retailing network in rural settlements and urban centers; from natural persons for use of objects of infrastructure (point 6). The rate of the due from the natural persons for use of objects of infrastructure is fixed as 0,3 of the based unit per year from each tenant and from each landlord.

 

     By recognizing the right of Postavy regional Council of deputies to set the local due from users of infrastructure in the administrative territory of Postavy region, including specification of other than those directly listed in the Law types of use of infrastructure, as the right based on the provisions of Article 10 of the Law "On budget of the Republic of Belarus for 2004", the Constitutional Court shall pay attention to the following.

 

     Dues from the users set by Decision of Postavy regional Council of deputies of 29 December 2003 No. 40 "On budget of region for 2004", except for the due from the natural persons for use of objects of infrastructure shall have the specified by the legislation features of the local due from users, including the due for use of objects of infrastructure while location small-scale retailing network in rural populated areas and urban centers where the local Council of deputies has determined another type of use by infrastructure of the relevant administrative and territorial units which are not specified directly in the Law.

 

     According to point 1 of Instruction on procedure of calculation and payment of the due from natural persons for the use of objects of infrastructure approved by Decision of Postavy regional Council of deputies of 29 December 2003 No. 42 "On approval of Instruction on local dues" (hereinafter is also referred to as Instruction), the payers shall be the natural persons who reside in the territory of Postavy region and who have living accommodation and flats in their ownership, as well as tenants of departmental housing stock and housing resources of local Councils.

 

     Thus, the circumstance (juridical fact) with which Postavy regional Council of deputies connected the obligation of the natural person to pay the due for use of objects of infrastructure shall not be the fact of use of objects of infrastructure of Postavy region, but, to the point, the fact of possession, use of property or owned by the tax payer. This conclusion is also confirmed by the content of point 3 of the Instruction, which specifies the procedure of calculation and fixes the terms for paying the due. Thus, registration of the citizens and calculation of the due shall be carried out within the frames of the city of Postavy: by Inspection of the Ministry on Taxes and Dues of Postavy region - as regards the natural persons who are owners of dwelling accommodation in the city of Postavy; by Unitary Enterprise of Housing and Communal Services - as regards tenants of housing resources of local Councils and owners of privatized flats while calculating the rent, payment for technical and communal services; by economic entities which have departmental housing stock - as regards tenants and owners of flats who reside in their housing stock; in urban centres and rural settlements - by Rural Settlement Councils.

 

     The due in question, in the opinion of the Constitutional Court, is a compulsory payment which equally with immovable-property tax shall burden the property of citizens, and with respect to the payers it is in no way related to the concrete types of use by objects of infrastructure located in the territory of Postavy region.

 

     The Constitutional Court deems that such a specification of the object of taxation may not be considered as determined in accordance with sub-item 1.4 of point 1 of article 10 of the Law, since the Instruction does not fix which type of use of infrastructure of Postavy region shall be the object to taxation.

 

     Article 28 of the Common part of the Tax Code of the Republic of Belarus shall also stipulate the necessity of specification of the object of taxation. According to the given Article the objects of taxation shall be conditions with the presence of which the tax legislation makes reference to the origin of tax obligation (point 1); each tax, due (duty) shall have independent object of taxation (point 2).

 

     In addition, Instruction shall have no norm for setting of the tax base of the due from the user, but sub-item 1.4 of point 1 of Article 10 of the Law stipulates that the tax base shall be fixed depending on the object of taxation. Point 1 of Article 41 of the Common part of the Tax Code shall stipulate that the tax base is a valuable, natural or has other characteristics of the object of taxation; tax base and procedure of its specification (calculation) shall be fixed with respect to each tax, due (duty).

 

    Based on the content of Instruction and provisions of sub-item 1.4 of point 1 of Article 10 of the Law, the Constitutional Court finds no legal grounds for referring the due from natural persons for use of objects of infrastructure set by Decision of Postavy regional Council of deputies of 29 December 2003 No. 40 "On budget of region for 2004" the payers of which are natural persons who reside in the territory of Postavy region and who have in their ownership dwelling houses and flats, as well as tenants of departmental housing stock and housing resources of local Councils to the dues from users, where the competence to set them shall have local Councils of deputies of based territorial level in accordance with the Law.

 

    3. The Constitutional Court emphasizes that in accordance with part one of point 3 of Article 10 of the Law, the right to set the purpose due for maintenance and development of infrastructure of city (region) shall be the right of oblast, Minsk city Councils of deputies.

 

    The right in question is realized by Decision of Minsk oblast Council of deputies of 21 January 2004 No. 34 "On budget of oblast for 2004" (with alterations and addenda made by Decision of 28 April 2004 No. 70) which has introduced in the territory of Minsk oblast the purpose due for maintaining and development of infrastructure of city (region) (sub-item 18.2 of point 18). Rate of the due is fixed as 3,6 per cent of the sum of profit (income), which is remaining in disposition of organizations and individual entrepreneurs after taxation (except for individual entrepreneurs - payers of single tax from individual entrepreneurs and other natural persons, as well as individual entrepreneurs who conform to simplified system of taxation). Four per cent of the purpose due shall be centralized into oblast budgets with forwarding those means for buying under the prescribed procedure of ambulances, and the rest of resources shall be entered the budgets of regions and cities.

 

    Decision of Pukhovichy regional Council of deputies of 18 February 2004 No. 43 has also set the purpose due from natural persons for maintenance and development of infrastructure of region and approved the Provision thereof. The payers of the given due shall be the natural persons who reside in the territory of Pukhovichy region and who are at the age of 18 as of 1 January 2004, as well as natural persons who are temporal residents and who have the plot of land in the territory of the city of Marijana Gorka, of Rural Settlement Councils (point 2 of Provision). Point 3 of the Provision shall establish that the purpose due shall be paid once a year at the following rates: for the natural persons who reside in the territory of Pukhovichy region and who are at the age of 18 to the tune of 0,25 of based unit effective at the moment of payment; for the natural persons who are temporal residents and who have the plot of land in the territory of the city of Marijana Gorka, of Rural Settlement Councils, to the tune of 0,03 of the based unit effective at the moment of payment for 0,01 ha.

 

    By adopting its Decision of 18 February 2004 No. 43 on setting the purpose due from natural persons for maintenance and development of infrastructure of region and by approving the Provision thereof, Pukhovichy regional Council of deputies has gone beyond its competence. As it has been noted previously, according to part two of point 3 of Article 10 of the Law, the local Councils of deputies of based territorial level, Pukhovichy regional Council of deputies is also referred thereto, shall have, in particular the right to set the due from users (sub-item 1.4 of point 1 of Article 10 of the Law), the payers of which may be also natural persons, and the objects are parking in specially equipped places; trading in the territory of the relevant administrative and territorial units; having dogs in ownership and (or) their use in entrepreneur activities, use of local symbolism; holding of auctions; hunting and fishing; building of objects in the territory of the relevant administrative and territorial units; other types of use of infrastructure of the relevant administrative and territorial units specifying by Minsk city Council of deputies, Councils of deputies of based territorial level.

 

    Thus, Pukhovichy regional Council of deputies has had the right to set other (besides those listed in sub-item 1.4 of point 1 of Article 10 of the Law) types of use of infrastructure of region and to impose the local due for use of these types of infrastructure, but it had no right to set purpose due for maintenance and development of infrastructure of the region.

 

    In addition, the Constitutional Court notes that the payers of the purpose due for maintenance and development of infrastructure of the city (region) may be organizations and individual entrepreneurs, but not the natural persons, as it is envisaged in Provision.

 

    Guiding by part one of Article 116, part four of Article 122 of the Constitution of the Republic of Belarus, Articles 7, 36, 38, 40, 401 of the Law "On Constitutional Court of the Republic of Belarus", the Constitutional Court

 

RULED:

 

1. To find to be at variance with Article 121 of the Constitution of the Republic of Belarus and with sub-item 1.4 of point 1 of Article 10 of the Law of the Republic of Belarus "On budget of the Republic of Belarus for 2004":

 

point 6 of Decision of Postavy regional Council of deputies of 29 December 2003 No. 40 "On budget of region for 2004" in part of setting of local due from natural persons for use of objects of infrastructure and fixing of rate of the due, as well as point 1 of Decision of Postavy regional Council of deputies of 29 December 2003 No. 42 "On approval of Instruction on local dues" in part of approval of Instruction on procedure of calculation and payment of the due from natural persons for use of objects of infrastructure;

 

Decision of Pukhovichy regional Council of deputies of 18 February 2004 No. 43 "On budget of region for 2004" in part of setting of purpose due from natural persons for maintenance and development of infrastructure of region and approval of the Provision thereon.

 

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

 

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

 

Presiding Officer —

Chairman of the Constitutional Court

of the Republic of Belarus                                                                                               G.A. Vasilevich