The Constitutional Court of the Republic of Belarus, comprising of the Presiding Officer - Chairman of the Constitutional Court G.A. Vasilevich, judges T.S. Boiko, K.I. Kenik, V.V. Podgrusha, A.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, G.B. Shishko, V.Z. Shuklin, has examined on the grounds of part one of Article 116, part four of Article 122 of the Constitution of the Republic of Belarus complaints of individual entrepreneurs of the city of Gomel on the issues connected with payment by them of single tax.

     The complaints specify that Decision of Gomel oblast Council of deputies of 28 March 2002 No. 153 fixed increasing coefficients from 1,2 till 2,0 as to the rates of single tax in instances where retail sale of goods is carrying out through detached places at market trade places the size of which shall exceed the size fixed by the owner of the market. Such a situation, in the opinion of the applicants, shall make provision of the possibility for the market owners to adjust the size of trade place at their own choosing downward and, thereby, practically to raise the tax rate.

     The Constitutional Court, having analyzed the relevant provisions of the Constitution, legislative and other enforceable legal acts, found the following.

     According to sub-item 3.2 of point 3 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 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), oblast and Minsk city Council of deputies shall set the rates of single tax within base rates of that tax which are specified in the List added to Decree No. 12 depending on:

     the populated locality where payers of single tax carry out their activities (the city of Minsk, cities of oblast and region subordination, semiurban centres, rural populated areas);

     the places for carrying out activities of those persons within the populated area (centre, outlying districts, road junctions etc.);

     the remoteness of that place from passenger transport stations;

     the working conditions (shift labour) of payers of the single tax;

     the type of trade point;

     other peculiarities and conditions for carrying out activities.

     Thus, while determining concrete amounts of the rate by Council of deputies there should be taken into account peculiarities and conditions for entrepreneurs' activities of tax-payers.

     Point 3 of Decision of Gomel oblast Council of deputies of 28 March 2002 No. 153 "On setting of rates of single tax from individual entrepreneurs and from other persons who carry out realization of goods, works (services) within base rates of single tax specified in List of types of activities, where individual entrepreneurs and other natural persons while their realization shall pay single tax, as well as base rates of single tax, approved by Decree of the President of the Republic of Belarus of 17 May 2001 No. 12 (hereafter referred to as Decision No. 153) for individual entrepreneurs who do not use wage labour by retail realization of goods through detached market trade places outside stationary trade network from the places the size of which shall exceed the size fixed by the owner of the market has determined the following increasing coefficients: 1,2 - while increasing twice the size of a trade place; 1,5 - while increasing thrice the size of a trade place; 2,0 - while increasing the size of a trade place four times and more. At the same time, rate of single tax with increasing coefficient shall not exceed maximum base rate of this tax approved by Decree No. 12

     While realizing the goods though other trade points specified in point 1 of Decree No. 12, as for the rates of single tax established in the addendum to Decision No. 153 there shall be applied thereto, depending on the total occupied space of trade points, increasing coefficients (but not higher than the most higher base rate of single tax approved by Decree No. 12): 1,2 - more than 10 up to 25 sq.m. (inclusive); 1,35 - more than 25 up to 50 sq.m. (inclusive); 1,5 - more than 50 sq.m..

     The Constitutional Court emphasizes that if, while realizing goods through other trade points, there is a prompt specification of criteria for application to the tax rate of increasing coefficients (occupied space in sq.m.), then while realizing goods through trade places at the markets there is the size of a trade place as the criterion which is subject to determination by the owner of the market.

     According to guiding document of the Ministry of Trade RD RB 8218.01-95 "Trade. Terms and notions" approved by Order of the Ministry of Trade of 14 December 1995 No. 80 "On standardization of terminology in the sphere of trade" (with alterations and addenda made by Orders of 5 November 1998 No. 145 and of 10 July 2001 No. 28) a market-place - a specially allocated place with created adequate conditions for sale by citizens and by economic entities of agriculture products, growing wild fruits and berries, non-food goods including home production (manufacture), as well as with created for citizens necessary facilities for their purchase.

     According to paragraph two of point 2 of Rules of trade at the markets of the Republic of Belarus approved by Order of the Ministry of Trade of 8 July 1998 No. 100 (hereafter referred to as the Rules of trade), a trade place - a part of trade counter, trade stall, table for placing goods or territory of the market for installation of mobile facilities or means of transportation which is necessary for laying-out and realization of goods with one seller and taking single stock of arrival and realization of goods. The concrete size of a trade place shall be specified by the owner of the market.

     In accordance with point 8 of the Rules of trade relations between the market and salespersons shall be determined by way of selling of monthly, ten-day period tickets or single (valid for one occasion) coupons for a trade place. The rate and procedure of collection of a single due and payment for the services shall be fixed by the owner or on his behalf by the administration of the market in accordance with the legislation. Location of places in the rows of stalls, tables and other facilities for the sale of goods shall be specified by the administration of the market taking into account the observance of sanitary and fire-prevention rules, goods neighbourhood, as well as provision of conveniences for salespersons and buyers (point 11).

     The legislation regulating legal relations in the field of sanitation (Law "On sanitary and epidemic well-being of population", Sanitary rules and veterinary rules approved by Resolution of the Ministry of Public Health No. 28, the Ministry of Agriculture and Foodstuffs No. 10 of 30 May 2000, Building Norms and Rules 2.07.01-89. Town-planning. Planning and building of city and rural settlements (with alterations of 1990), Building Norms and Rules 1.02.01-85. Instruction on composition, procedure of working out, adjustment and approval of design estimates for building enterprises, constructions, structures etc.) shall contain no directions as regards the size of a trade place on the markets.

     Rules of fire safety of the Republic of Belarus for trade fairs and for markets approved by Order of the Ministry of Internal Affairs of 25 June 1996 No. 35 shall specify minimum limits of space of fairs and markets per one person, as well as minimum floorspace of a trade place for each trader who is engaged in commerce without trade equipment and a number of other limitations which to a certain extent shall make it possible by way of calculation to find reference size of a trade place (sub-items 3.5-3.7 of point 3, sub-items 4.5, 4.6, 4.8-4.12, 4.15 of point 4). However, the concrete size of a trade place with the observance of the requirements of enforceable legal acts shall be fixed by the owner of the market, as it is envisaged by the Rules of trade.

     The Constitutional Court emphasizes that under Decree No. 12 selling points among other listed trade points shall be detached trade places at the markets outside stationary trade network. At the same time, part four of sub-item 3.5 of point 3 of Decree No. 12 shall stipulate that, while realizing in several selling points the goods specified in the List added to the given Decree, single tax shall be paid as for each selling point.

     According to point 10 of Decree No. 12 the right to give explanations on the issues of referring of trade objects to the selling points shall be granted the Ministry of Trade.

     Besides the definition of the notion "trade place at market" which is contained in the Rules of trade, sub-item 1.2 of point 1 of Resolution of the Ministry of Trade of 10 July 2001 No. 28 "On some issues of referring of trade objects to selling points envisaged by Decree of the President of the Republic of Belarus of 17 May 2001 No. 12" shall specify that the detached trade places at the markets outside stationary trade network shall be the points of peddle and delivery network, trade places in the rows of stalls. Trade place in the row of stalls - is a part of trade counter, trade stall, table for placing goods which is necessary for laying-out and realization of goods by one seller and taking single stock of arrival and realization of goods.

     Study of law applicable practice shall indicate that as a result of difference of given by the Ministry of Trade definitions of notions "trade place at market" individual entrepreneurs by occupying several adjoining trade places at the market shall pay the owner of the market the rental fee for each of those places, and, at the same time, while calculating single tax those several trade places are considered to be one trade place (selling point) and one rate of tax is paid into the budget.

     Gomel oblast Council of deputies has referred the instances, when for trade one trade place is allocated and the size of this trade place exceeds twice, thrice, four times and more the size which is fixed by the owner of the market, to other peculiarities and conditions for carrying out the activities.

     In the opinion of the Constitutional Court point 3 of Decision of Gomel oblast Council of deputies of 28 March 2002 No. 153, in part of determination of increasing coefficients to the rates of the single tax for individual entrepreneurs who do not use wage labour in retail trade through detached trade places outside the stationary trade network from the trade places the size of which shall increase the size fixed by the owner of the market, is in conformity with the Constitution and with the legislation of the Republic of Belarus.

     At the same time, the Constitutional Court considers that since the size of the trade place at the market is directly connected with determination by the lessor of the rental payment, the rate of which shall be specified by the lessor in accordance with the legislation, as well as since with a view to realize Decree No. 12 the above-mentioned trade places shall be referred to the selling places and depending on their quantity and the size there shall be determined the rate of the single tax, minimum size of the trade place is subject to normative regulation in order to secure protection of the rights and legitimate interests of citizens, in particular, the right to grant by the state of equal rights for carrying out economic and other activities, except for the activities which are not banned by the law (part two of Article 13 of the Constitution).

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

RULED:

1. To find Decision of Gomel oblast Council of deputies of 28 March 2002 No. 153 "On setting of rates of single tax from individual entrepreneurs and from other natural persons who carry out realization of goods, works (services) within base rates of single tax specified in List of types of activities where individual entrepreneurs and other natural persons while their realization shall pay single tax, as well as base rates of single tax approved by Decree of the President of the Republic of Belarus No. 12 of 17 May 2001, in part of determination of increasing coefficients for individual entrepreneurs who do not use wage labour by retail realization of goods through detached market trade places outside stationary trade network from trade places the size of which shall exceed the size fixed by the owner of the market, is not at variance with the Constitution and the legislation of the Republic of Belarus.

2. To propose the Council of Ministers of the Republic of Belarus, in order to secure more fully the protection of the rights and legitimate interests of individual entrepreneurs who realize goods through trade places at the markets, to determine minimum size of the trade places in question.

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

4. 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