15 September 2004 № D-177/2004
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, G.A. Vorobei, K.I. Kenik, V.V. Podgrusha, A.G. Tikovenko, V.Z. Shuklin, has examined on the grounds of part four of Article 122 and part one of Article 116 of the Constitution of the Republic of Belarus application of an individual entrepreneur on lawfulness of imposition by Novopolotsk city Council of deputies of local due for use of infrastructure while locating the object of trade, public catering and other entrepreneur activities in the territories within administrative subordination to city Council of deputies and executive committee.
Having analyzed the relevant provisions of the Constitution of the Republic of Belarus, General part of the Tax Code of the Republic of Belarus, the Law of the Republic of Belarus "On budget of the Republic of Belarus for 2004" and other acts of legislation, found the following.
The types of local taxes and dues, which may be imposed in the territory of the relevant administrative and territorial units in 2004 by oblast, Minsk city Council of deputies, Council of deputies of the based territorial level, are specified in Article 10 of the Law of the Republic of Belarus of 29 December 2003 "On budget of the Republic of Belarus for 2004" (hereinafter is referred to as the Law).
Sub-item 1.3 of point 1 of Article 10 of the Law shall envisage imposition of the purpose due (transportation due for renewal and restoration of city, local passenger transport, buses of intercity service and maintenance of departmental city electrical transport, due for maintenance and development of infrastructure of a city (region)).
The 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 apply the simplify system of taxation).
The object of taxation by purpose dues shall be entrepreneur activities in the territory of the relevant administrative and territorial units, and the tax rates shall be fixed to the tune of not more (in the aggregate) than 4 per cent of the tax base.
Point 7 of Decision of Vitebsk oblast Council of deputies of 27 December 2003 No. 39 "On budget of oblast for 2004" has imposed in the territory of Vitebsk region for 2004 the purpose due for maintenance and development of infrastructure of the city (region) with the rate of 2 per cent of the sum of profit (income) which shall be at payer's disposal. Purpose due for maintenance and development of infrastructure of the city (region) shall be entered at the rate of 20 per cent in oblast budget and 80 per cent in city and region budgets.
Instruction on procedure of calculation and payment of the purpose due for maintenance and development of infrastructure of the city (region) approved by Decision of Vitebsk oblast Council of deputies of 27 December 2003 No. 41 stipulates that the payers of the due shall make its calculation monthly by progressive sum total based on the profit (income) at their disposal; tax declarations (settlements) are submitted to the tax bodies according to the place of tax registration; the due shall be entered by the payers in the accounts of financial divisions of region (city) executive committees and the latter shall transfer 20 per cent of the sums entering in the account of financial department of Vitebsk oblast executive committee.
Sub-item 1.4 of point 1 of Article 10 of the Law envisages imposition of the dues from the users. Both organizations, individual entrepreneurs (i.e. the persons - payers of purpose dues) and natural persons who are not entrepreneurs are determined by the Law as the payers of the dues in question.
The objects of taxation shall be: parking in specially equipping places; conducting of trade in the territory of the relevant administrative and territorial units; owners of dogs and (or) their use in entrepreneur activities; use of local symbolism; selling at auctions; hunting and fishing; building of objects in the territory of administrative and territorial units; other types of use of infrastructure of the relevant administrative and territorial units, which are subjects to determination by Minsk city Council of deputies, by Council of deputies of the based territorial level. The tax rates shall be fixed depending on the object of taxation in percentage of the tax base and (or) to the tunes multiple of the base ratio.
Decision of Novopolotsk city Council of deputies of 30 December 2003 No. 41 has approved Instruction on procedure of calculation and payment of the local due for use of infrastructure while locating the object of trade, public catering or some other entrepreneur activities in the territories within administrative subordination of the city Council of deputies and executive committee (with alterations and addenda made by Decision of 30 January 2004 No. 57) (hereinafter is referred to as Instruction No. 41). Provisions of the Instruction shall specify as the payers of the due the organizations and individual entrepreneurs who have the objects for carrying out entrepreneur activities (retail trade, public catering, gambling institutions, objects of rendering tourist services, pay parking, filling stations); as the object of taxation shall be specified the use of operating systems and communications while locating the objects of trade, public catering, gambling business etc.
The Constitutional Court deems that Vitebsk oblast Council of deputies by imposing the purpose due for maintenance and development of infrastructure of the city (region) (hereinafter is also referred to as purpose due) and Novopolotsk city Council of deputies while imposing the due for the use of infrastructure in the territories within the administrative subordination of the said city Council of deputies and the relevant executive committee (hereinafter is also referred to as the due from the users) acted within the granted them powers.
The Constitutional Court emphasizes that imposition of the due from the users shall not violate the provisions of part two of Article 132 of the Constitution which enshrines pursuing a unified fiscal, tax, credit and currency policy in the territory of the Republic of Belarus, as well as is not at variance with point 3 of Article 28 of the General part of the Tax Code of the Republic of Belarus under which the same object may be liable to the fixed tax, due (duty) at single payer only once within the relevant tax period.
The object liable to the purpose due shall be entrepreneur activities, the due in question shall be paid according to the place of tax registration of a legal entity or an individual entrepreneur. The object liable to the due from the users (one of the objects) shall be placement of the objects of trade, the due in question shall be paid according to the placement of the said objects.
The Constitutional Court shall also pay attention that the absence of double taxation is also confirmed by the fact that organizations, individual entrepreneurs registered in the inspection of the Ministry of Taxes and Dues of the city of Novopolotsk, and paying the purpose due into the budget of the city, shall be exempted from the payment of the due from the users (Article 6 of Instruction No. 41).
The Constitutional Court finds no legal grounds for finding to be sound the arguments of the applicant that the due from the users specified by Instruction No. 41 should be of once-only nature. In the opinion of the Constitutional Court, the content of sub-item 1.4 of point 1 of Article 10 of the law envisaging the possibility of setting the due from the users not only in base ratio, but in percentage of the tax base, shall not exclude the right of local Councils of deputies to fix the periodical nature for the payment of the due in question.
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 Instruction on procedure of calculation and payment of local due for use of infrastructure while locating the object of trade, public catering and other entrepreneur activities in the territories within administrative subordination to city Council of deputies and executive committee approved by Decision of Novopolotsk city Council of deputies of 30 December 2003 No. 41 to be in line with Articles 121 and 132 of the Constitution of the Republic of Belarus and Article 10 of the Law of the Republic of Belarus "On budget of the Republic of Belarus for 2004".
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
of the