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.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, G.B. Shishko, V.Z. Shuklin, has examined on the basis of Article 40 and part four of Article 122 of the Constitution of the Republic of Belarus complaint of citizens - owners of motor transport vehicles on the issue of lawfulness of collection of a local due for use of paid car parks in the city of Novopolotsk.

The Constitutional Court, having analyzed the relevant provisions of the Constitution of the Republic of Belarus, Laws "On budget of the Republic of Belarus 2001", "On taxes and dues collected into budget of the Republic of Belarus", "On local government and self-government in the Republic of Belarus", other enforceable legal acts, as well as practice of imposition by local councils of deputies in the territories of the relevant administrative-territorial units of dues for use of car parks and parking in specially equipped places, found the following.

Under Article 121 of the Constitution of the Republic of Belarus the setting of local taxes and dues in accordance with the law shall fall exclusively within the exclusive competence of the local councils of deputies. Article 10 of the Law "On budget of the Republic of Belarus 2001" shall contain exhaustive list of local taxes and dues which are imposed by oblasts, Minsk city Council of deputies, by Councils of deputies of the basic territorial level in the territory of the relevant administrative-territorial units. According to paragraph two of point 2 of the given Article Minsk city Council of deputies, Councils of deputies of the basic territorial level shall impose and enter to relevant budgets dues for use of car parks and parking in specially equipped places.

The Constitutional Court emphasizes that while establishing in the Law in question of the specification "for use of car parks and parking in specially equipped places" their have not been considered the requirements of Article 34 of the Law "On enforceable legal acts of the Republic of Belarus" raised to stylistic drawing up of the text of an enforceable legal act. In particular, it is impossible to make use in the text of an enforceable enactment of foreign borrowings in the presence of equivalent words and terms in Belarusian or Russian, as well as to use different notions (terms) in the same sense.

The terms "car park" (place where one is located for a time of stopping; place where motor transport vehicles are temporally situated) and "parking" (place for park; to park - to place a car in a parking-lot) are the same here in the meaning based on the definition of a park as a premeditated termination of traffic of a motor transport vehicle for the time period of more than 5 minutes by reasons which are not connected with (dis)embarkation of passengers or (un)loading of a motor transport vehicle which is specified in the Traffic Rules approved by resolution of the Cabinet of Ministers of the Republic of Belarus of 21 March 1996 No. 203. Local due for use of paid car parks in the city of Novopolotsk has been imposed by decision of Novopolotsk city Council of deputies of 21 December 2000 No. 12 "On budget of the city 2001". According to point 6 of that decision the specified due has been fixed at the rate of 0,025 of minimum wage in a twenty - four - hour period from each motor transport vehicle placed in the paid park. Due- payers shall be legal and natural persons placing their motor transport vehicles in the paid parks. In the opinion of the Constitutional Court Novopolotsk city Council of deputies in point 6 of the decision which is stipulated imposition of the due for use of paid car parks in spite of the difference of the given type of local due from the name specified in sub-item 1.1 of Article 10 of the Law "On budget of the Republic of Belarus 2001" (due for use of paid parks and parking in specially equipped places) has realized its right to setting local due since paid car parks may also be referred to the parks specifying in the Law in question.

At the same time, the Constitutional Court pays attention to the necessity of making clear legal differentiation between a due for use of parks in specially equipped places which is a component of the tax system which is regulated by the norms of public law nature and the pay for the services concerning storage of motor transport vehicles placing in parks which shall be made in fulfilment among the parties of the agreement of storage within the civil legal liability law relations. In particular, it is possible to observe such a differentiation of legal status of the pay made in connection with use of parks in decisions of Minsk city Council of deputies of 11 February 1997 No. 26 "On imposition of due for use of place for parking motor transport vehicles", of 13 December 2000 No. 141 "On making alterations and addenda into decision of 2nd session of Minsk city Council of deputies of 11 February 1997 No. 26 "On imposition of due for use of place for parking of motor transport vehicles" (there have been approved Provision on the procedure of collection of the due for parking motor transport vehicles in the street and road network system of the city of Minsk and in the territories administratively subordinated to Minsk city executive committee of 13 August 1999 No. 803 "On approval of the Rules of use of car parks" which shall specify the procedure of use of paid car parks for short-time and long-term storage of motor transport vehicles which are owned by citizens or by organizations. Point 7 of decision No. 12 of Novopolotsk city Council of deputies shall stipulate delegation of the powers to elaborate and approve provisions on the procedure of calculation and pay of local taxes and dues for use of paid car parks.

According to point 1 of the given provision due-payers shall be legal and natural persons, including owners of car parks, whose motor transport vehicles have been placed in paid parks in the territories of administrative subordination to Novopolotsk city Council of deputies and to the city executive committee. Inclusion of the owners of car parks into the circle of payers of the given due, in the opinion of the Constitutional Court, is not in compliance with the provisions of sub-item 1.1 of Article 10 of the Law "On budget of the Republic of Belarus 2001", since the right of use by the owners of those car parks shall belong to them in connection with the right of possession acquired on legal grounds. Moreover, 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, service activities, and on some issues connected with the specified activities" has included services on the storage of motor transport vehicles owned by citizens into the List of types of activities for carrying out of which individual entrepreneurs and other natural persons shall pay single tax, as well as into basis rates of single tax. In accordance with sub-item 3.1 of the specified Decree imposition of a single tax shall lead to the fact that the payers of that single tax are subject to be exempted from payment of local taxes and dues.

The Provision approved by decision of Novopolotsk city executive committee of 14 February 2001 No. 134 has also specified the procedure and terms of pay of due (point 4), privileges for certain categories of citizens (point 5), has determined that responsibility for the proper collection, completeness and timeliness of pay of local due for use of car parks shall be for the subjects of entrepreneur activities which maintain car parks and realize the services of paid car parks (point 6).

The Constitutional Court emphasizes that the responsibility for the observance of tax legislation, on local taxes and dues included, shall be for the payers of those taxes and dues except for the instances specified in the Law "On taxes and dues raised into budget of the Republic of Belarus" under which responsibility is imposed on third persons - sources of income for tax-payers. Article 9 of the Law "On taxes and dues raised into budget of the Republic of Belarus" shall directly specify about that. According to the given Article tax-payers shall be responsible under the legislation of the Republic of Belarus for proper calculation, duly payment into budget and observation of the effective legislation. Article 10 of the Law "On budget of the Republic of Belarus 2001" stipulates that responsibility for proper calculation, duly payment and the procedure of collection of local taxes and dues shall be determined in accordance with the Law "On taxes and dues raised into budget of the Republic of Belarus".

According to point 2 of Article 10 of the Law "On budget of the Republic of Belarus 2001" the right to specify independently tax basis and objects of taxation, concrete rates, payers, privileges, the procedure of calculation and term for pay of local taxes and dues is granted exactly to Minsk city Council of deputies and to the Councils of deputies of the basic territorial level. In pursuance of requirements of Article 14 of the Law "On local government and self-government in the Republic of Belarus" (in wording of the Law of 10 January 2000) the local Councils shall have the right to transfer part of their powers to executive and administrative bodies, to the bodies of territorial local self-government at the request or with the consent of those bodies, except for the powers enshrined in Article 121 of the Constitution of the Republic of Belarus.

Thus, Novopolotsk city Council of deputies had no legal grounds to delegate Novopolotsk city executive committee the powers on the approval of the provisions on the procedure of calculation and pay of local taxes and dues. Realization of those powers shall be in exclusive competence of the relevant local Councils of deputies. The specified legal position of the Constitutional Court on unconstitutionality of delegating by local Councils of deputies of their exclusive powers, enshrined in Article 121 of the Constitution, to local executive committees have been already specified in Decision of the Constitutional Court of the Republic of Belarus of 18 August 1999 "On decision of Grodno city executive committee of 4 March 1999 No. 185 "On imposition of local dues".

The Constitutional Court pays also attention to the fact that setting of local taxes and dues is regulated only by one Article of the Law on budget of the Republic of Belarus for a next year. Analysis of the content of the provisions of the norms of Article 10 of the Law "On budget of the Republic of Belarus 2001" signifies that the lawmaker shall not secure in full the regulations of relations in the sphere of local taxation and that leads in practice to various deviations from the requirements of the laws. Usage in the laws of similar terms and notions, which make it possible to interpret them broadly (for example, car parks, parking), leads to the fact that local representative and executive bodies shall fix additional payments as dues based only formally on the requirements of the law.

In that connection the Constitutional Court deems that it is necessary to secure more fully the regulation of relations in the sphere of local taxation, including usage of notions, determination of the rates, specification of subjects and objects of taxation, for the protection of the constitutional rights of citizens and their guarantees, for removal from inequality of tax-payers and from possible violations of the relevant provisions of the Constitution and the laws on the part of local Councils of deputies, executive and administrative bodies while setting of local taxes and dues.

Guided by Article 40, part one of Article 116, Article 120 of the Constitution, Articles 7, 36, 38 of the Law "On the Constitutional Court of the Republic of Belarus" the Constitutional Court 

RULED:

1. To note that point 6 of decision of 21 December 2000 No. 12 "On budget of the city 2001" Novopolotsk city Council of deputies has realized its right to setting in accordance with the law of local taxes and dues. At the same time, by specifying the due for use of paid car parks both Novopolotsk city Council of deputies and Novopolotsk city executive committee had made a number of violations, in particular, while delegating to the executive committee of the powers concerning approval of the provision on the procedure of calculation and pay of the due; while specifying due-payers; while imposing responsibility for proper calculation, timeliness of pay and the observance of the procedure of collection of the due.

2. For Novopolotsk city Council of deputies to bring decision of 21 December 2000 No. 12 "On budget of the city 2001" in part of imposition of local due for use of paid car parks and for Novopolotsk city executive committee to bring decision of 14 February 2001 No. 134, which has approved the Provision on the local due for use of paid car parks, into line with the Constitution of the Republic of Belarus, with the Laws "On budget of the Republic of Belarus 2001", "On local government and self-government in the Republic of Belarus", "On taxes and dues raised into budget of the Republic of Belarus", as well as with the present Decision.

3. To propose the National Assembly of the Republic of Belarus in order to secure the protection of constitutional rights of citizens and their guarantees, for removal from inequality of tax-payers and from violations of the requirements of the Constitution and the laws on the part of local Councils of deputies while setting of local taxes and dues to envisage more full regulation of relations in the sphere of local taxation; to fix in the Law "On budget of the Republic of Belarus 2002" the norms under which in future there will be excluded the possibility of collection of local due for use of paid car parks.

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

5. To publish the present Decision in accordance with effective legislation.

Presiding Officer —

Chairman of the Constitutional Court

of the Republic of Belarus                                                                                               G.A. Vasilevich