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, K.I. Kenik, V.V. Podgrusha, A.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, G.B. Shishko, having examined on the basis of Article 40, part one of Article 116 and part four of Article 122 of the Constitution of the Republic of Belarus complaint of public association “Belarusian Union of entrepreneurs” (complaint contains 498 signatures of individual entrepreneurs) concerning the issues of realization of goods (works, services) with use of checkout summing apparatuses or special computer systems. Having analyzed the relevant provisions of the Constitution, Decree of the President of the Republic of Belarus of 17 May 2001 No. 12 “On imposition of single tax from individual entrepreneurs and from other natural persons who carry out realization of goods, works (services) and on some issues connected with the activities in question” (hereafter referred to as Decree No. 12), the Law “On taxes and dues collected into the budget of the Republic of Belarus”, other enforceable enactments regulating issues of taking cash money while realizing goods (works, services) with use of checkout summing apparatuses, the Constitutional Court found the following. In accordance with point 2 of Article 8 of the Law “On taxes and dues collected into the budget of the Republic of Belarus” legal and natural persons, who deal with realization of production (works, services) in cash through stationary trade (service) points, shall be obliged to take money with use of checkout summing apparatuses or special computer systems registrated in a state tax inspection.

Relevant requirements to checkout summing apparatuses and to software of computer systems used for those purposes shall be subject to determination by the Government of the Republic of Belarus (part one). Use of checkout summing apparatuses or special computer systems while realizing production (works, services) in cash in non-stationary trade (service) points shall not be obligatory for natural persons who carry out entrepreneur activities without making a legal person and for whom oblasts and Minsk city Councils of deputies have set fixed rates of incomes tax (part three).

Thus, the Law “On taxes and dues collected into the budget of the Republic of Belarus” has geared the obligation of use of checkout summing apparatuses for individual entrepreneurs to the fact, what are the types of commercial (service) points where they carry out realization of production (goods, works) — stationary or non-stationary. Decree No. 12 has imposed single tax from individual entrepreneurs, foreign citizens and stateless persons while realizing for natural persons works (services), as well as retail realization for them through sale points (except for shops) of goods specified in the enclosing List of types of activities in the realization of which individual entrepreneurs and other natural persons shall pay single tax, as well as basic rates of single tax (paragraph two of point 1). Retail trade of non-food goods is also included in the specified List. In accordance with Decree No. 12 sale points shall be: points of small-scale retail trade network (stalls, kiosks, pavilions which have no selling area, mini-cafes, summer cafes, as well as retail delivery trade network); isolated trade places at the markets out of stationary trade network; isolated places provided in the procedure specified in the legislation by legal or natural persons for trade; isolated places on trade areas owned by individual entrepreneurs as property. Point 10 of Decree No. 12 has given the Ministry of Trade the right to give explanations on the issues of referring trade objects to the sales points and single goods to the groups of goods specified in the List attached to the Decree. According to point 5 of Decree No. 12 individual entrepreneurs while carrying out the activities specified in paragraph two of point 1 of Decree may take cash without use of coupons and checkout summing apparatuses. Thus, the given norm shall make it possible for individual entrepreneurs who realize non-food goods and who pay single tax to take cash without use of checkout summing apparatuses. At the same time, part two of point 5 of Decree No. 12 shall specify that taking cash without use of coupons and checkout summing apparatuses shall not release individual entrepreneurs from giving consumers goods, works (services) a sale receipt or another document which proves the purchase of goods, execution of works (rendering services).

The given norm is directed to the protection of the rights of consumers of goods (works, services), as well as to realization of provisions of the Law “On protection of the rights of consumers”. The Council of Ministers of the Republic of Belarus of 15 January 2002 has adopted Resolution No. 38 “On some issues of realization of goods (works, services) with use of checkout summing apparatuses or special computer systems”. In the opinion of social association “Belarusian Union of entrepreneurs” the given Resolution of the Council of Ministers is not in conformity with Decree No. 12 and with other acts of legislation. As it follows from point 1 of Resolution No. 38 of the Council of Ministers of 15 January 2002 the Government has agreed with the proposal of Brest, Vitebsk, Minsk, Mogilev oblasts executive committees and Minsk city executive committee, supported by the Ministry of Economy, Ministry of Trade, Ministry on Taxes and Dues, by other parties concerned on specification by the given executive committees of trade objects, as well as of legal persons and individual entrepreneurs in accordance with the provision who should secure taking cash while realizing goods (works, services) at the objects in question only with use of checkout summing apparatuses or special computer systems included in State register of the models (modifications) of checkout summing apparatuses and special computer systems used in the territory of the Republic of Belarus.

The Council of Ministers has also recommended the relevant oblasts executive committees and Minsk city executive committee to fix the following terms for legal persons and individual entrepreneurs who should secure taking cash while realizing goods (works, services) at trade objects specified in addendum to the given Resolution with use of checkout summing apparatuses or special computer systems: in the city of Minsk — till 1 July 2002, in oblasts centres — till 1 October 2002, in the others administrative and territorial units — till 1 January 2003 unless other terms have not been fixed by the legislation (paragraph two of point 2 of Resolution of the Council of Ministers of 15 January 2002 No. 38). Paragraph three of point 2 of that Resolution has given recommendations Gomel and Grodno oblasts executive committees to specify trade objects, as well as legal persons and individual entrepreneurs who should secure taking cash while realizing goods (works, services) at those objects only with use of checkout summing apparatuses or special computer systems included in State register of the models (modifications) of checkout summing apparatuses and special computer systems used in the territory of the Republic of Belarus, within the terms specified by the Resolution.

On the grounds of the analysis of the content of points 1 and 2 of Resolution of the Council of Ministers of 15 January 2002 No. 38 it is possible to make the conclusion that those norms are not the norms of direct effect. At the moment of its adoption it was effective Resolution of the Council of Ministers and of the National Bank of 9 January 2002 No. 18/1 “On taking cash while realizing goods (works, services) and on some issues of use of checkout summing apparatuses and special computer systems”. Sub-item 2.1 of point 2 of the given Resolution of the Council of Ministers and of the National Bank has envisaged that taking cash while realizing goods (works, services) in the territory of the Republic of Belarus through stationary trade (service) points unless otherwise is not envisaged by legislative acts of the Republic of Belarus should be carried out by legal persons, including the National Bank, banks, their branches and representations and individual entrepreneurs with use of checkout summing apparatuses and (or) special computer systems, the models (modifications) of which are included in State register. The specified sub-item of the given Resolution contains the provision — “unless otherwise is not envisaged by the legislative acts of the Republic of Belarus”.

Due to that the Constitutional Court pays attention to the fact, that part one of point 5 of Decree No. 12 individual entrepreneurs who realize goods and who pay single tax have been given the right to take cash without use of checkout summing apparatuses. With the aforestated taking into account, it should be admitted, that Resolution of the Council of Ministers of 15 January 2002 No. 38 “On some issues of realization of goods (works, services) with use of checkout summing apparatuses or special computer systems” had been adopted disregarding the relevant provisions of Decree No. 12. Under part three of point 5 of Decree No. 12 the right to specify the sales places, which shall realize goods with use of checkout summing apparatuses only, or the list of types of goods the realization of which shall be carried out only in specially assigned areas with use of checkout summing apparatuses, has been granted oblasts executive committees and Minsk city executive committee in co-ordination with the department on entrepreneur activities of the Ministry of Economy.

Decision of Minsk city executive committee of 19 February 2002 No. 184 “On procedure of taking cash at certain trade objects (points)” (hereafter referred to as Decision of Minsk city executive committee No. 184) has approved the list of trade objects (points) at which legal persons and individual entrepreneurs should secure taking cash while realizing goods (works, services) only with use of checkout summing apparatuses or special computer systems in accordance with the addendum. The list has been included 27 types of different trade objects (points) — that is trade centres, selling exhibitions, fairs, book fairs.

The Constitutional Court emphasizes, that Minsk city executive committee in accordance with part three of point 5 of Decree No. 12 has been granted the right to specify only the sales places which shall realize the goods with use of checkout summing apparatuses. However, Decision of Minsk city executive committee No. 184, except for the given issue, there have been specified other issues.

Thus, paragraph two of point 1 of Decision of Minsk city executive committee No. 184 has envisaged that legal persons and individual entrepreneurs who shall realize goods (works, services) at their own spaces or the leased areas at trade objects (places) in accordance with the list, shall secure since 1 July 2002 taking cash with use of checkout summing apparatuses or special computer systems which are included in State register of the models (modifications) of checkout summing apparatuses and special computer systems used in the territory of the Republic of Belarus. Sub-item 2.1 of point 2 of the given Decision organizers of selling exhibitions (fairs) has been ordered to inform in written form legal persons and individual entrepreneurs who realize goods (works, services), on imposition of taking and keeping cash with use of checkout summing apparatuses. In accordance with point three of Decision legal persons and individual entrepreneurs who realize goods (works, services) at trade objects (points) included in the list, in the term till 1 July 2002 are to register checkout summing apparatuses in a tax body in the place of registration as a tax payer. Resolution of the Ministry of Trade of 8 February 2002 No. 4 adopted in the fulfilment of Resolution of the Council of Ministers and the National Bank No. 18/1 has approved the list of stationary trade (service) points where legal persons and individual entrepreneurs carry out taking cash while realizing goods (works, services) with use of checkout summing apparatuses or special computer systems.

Equally with such a stationary trade objects as shops, trade centres and others the specified list have been also included trade (service) points which are to be determined by oblasts executive committees, Minsk city executive committee in accordance with point 5 of Decree of the President of the Republic of Belarus of 17 May 2001 No. 12 “On imposition of single tax from individual entrepreneurs and other natural persons who realize goods, works (services) and on some issues connected with the specified activities” (position No. 30). Thus, trade objects of 27 names included by Decision of Minsk city executive committee No. 184 in the list of trade objects (points) where legal persons and individual entrepreneurs should secure taking cash while realizing goods (works, services) only with use of checkout summing apparatuses or special computer systems, shall be referred to stationary trade (service) points. Due to that, traders at those objects are subject to all the rules of taking cash which are effective as regards stationary trade (service) points. The procedure of use of checkout summing apparatuses by the subjects who trade in stationary trade (service) points shall be specified in the Provision on the procedure of use by legal persons and individual entrepreneurs of checkout summing apparatuses or special computer systems for taking cash while realizing goods (works, services) approved by Resolution of the Ministry on Taxes and Dues of 8 February 2002 No. 11.

According to point 16 of the specified Provision legal persons and individual entrepreneurs who use checkout summing apparatuses and (or) special computer systems for taking cash while realizing goods (works, services) should monthly on or before 20th day of a month following the month under the review render to a tax body in the place of registration as a tax payer an account on the sums of cash taken with use of checkout summing apparatuses and (or) special computer systems while realizing goods (works, services) due to the form under addendum 5.

The Constitutional Court emphasizes that the rule of point 16 of the given Provision which shall envisage monthly submission by individual entrepreneurs of the account on the sums of cash taken with use of checkout summing apparatuses to a tax body is at variance with the content of part one of point 4 of Decree No. 12 under which individual entrepreneurs while carrying out activities specified in paragraph two of point 1 of the Decree shall keep records of receipts in a free form and after the end of a calendar year (on or before 1 February of the year following the year under the review) shall render in the place of tax registration the account on the rate of the receipts realized in the calendar year under the review in the form approved by the Ministry on Taxes and Dues. As it follows from the analyses of the provisions of the enforceable enactments regulating the issues of taking cash while realizing goods (works, services) with use of checkout summing apparatuses, certain norms of lower legal force shall practically rule out the effect of the norms of higher legal force.

Thus, point 1 of Decision of Minsk city executive committee No. 184 on points of fact shall deprive individual entrepreneurs, who pay single tax and who realize goods at trade objects included in the list attached to the Decision, of the right to take cash without use of checkout summing apparatuses as it is specified in part one of point 5 of Decree No. 12. The rights of individual entrepreneurs who shall pay a single tax are also restricted by point 16 of the Provision on procedure of use by legal persons and by individual entrepreneurs of checkout summing apparatuses and special computer systems for taking cash while realizing goods (works, services) since complying with the order of the given point shall also deprive individual entrepreneurs who pay a single tax of the right to keep records granted them in part one of point 4 of Decree No. 12.

The Basic Law enshrines that no one shall be compelled to discharge one’s duties that are not specified in the Constitution of the Republic of Belarus and its laws or renounce his rights (Article 58). Under Article 137 of the Basic Law the Constitution shall have the supreme legal force. Laws, decrees, ordinances and other instruments of state bodies shall be promulgated on the basis of, and in accordance with the Constitution of the Republic of Belarus. In accordance with the Law “On enforceable legal acts of the Republic of Belarus” the laws, decrees, ordinances shall have higher legal force as regards, in particular, to other enforceable legal acts (part four of Article 10); in case of collision between enforceable legal acts the subjects of law relations shall be obliged to be guided by the norm of the act of more higher legal force (part one of Article 71).

Grounded on the abovestated and guided by Article 40, part one of Article 116 and part four of Article 122 of the Constitution, Articles 7, 11, 36, 38, 40, 40¹ of the Law “On the Constitutional Court of the Republic of Belarus” the Constitutional Court

RULED:

1. To note that Resolution of the Council of Ministers of the Republic of Belarus of 15 January 2002 No. 38 “On some issues of realization of goods (works, services) with use of cash checkout summing apparatuses or special computer systems” is at variance with the relevant norms of Decree of the President of the Republic of Belarus of 17 May 2001 No. 12 “On imposition of single tax from individual entrepreneurs and other natural persons who realize goods, works (services) and on some issues connected with the specified activities” directed to creation of propitious conditions for the development of individual entrepreneur activities.

2. To propose the Council of Ministers of the Republic of Belarus to bring Resolution of 15 January 2002 No. 38 “On some issues of realization of goods (works, services) with use of checkout summing apparatuses or special computer systems” into line with Decree of the President of the Republic of Belarus of 17 May 2001 No. 12 and with the present Decision; Minsk city executive committee to bring Decision of February 2002 No. 184 “On procedure of taking cash at certain trade objects (points)” into line with the relevant provisions of Decree of the President of the Republic of Belarus of 17 May 2001 No. 12 and with the present Decision in order to realize by individual entrepreneurs who shall pay single tax the rights to take cash without use of checkout summing apparatuses, as well as to keep records of the receipts in a free form granted them by the Decree in question; Other state bodies to bring their enforceable enactments concerning the procedure of taking cash with use of checkout summing apparatuses into line with the provisions of Decree of the President of the Republic of Belarus of 17 May 2001 No. 12 and with the present Decision.

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                                                                                               G.A. Vasilevich