14 September 1999 № J-88/99
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 G.A. Vorobei, V.V. Podgrusha, A.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, V.I. Shabailov, V.Z. Shuklin
with participation of:
representatives of the Supreme Economic Court of the Republic of Belarus - E.A. Smirnov, E.P. Petukhova;
representatives of the State tax committee of the Republic of Belarus - V.A. Zhuk, G.N. Zmachinskaya;
has examined in open Court session the case "On the conformity between the Constitution, laws of the Republic of Belarus and explanation of the Main state tax inspection under the Cabinet of Ministers of the Republic of Belarus of 16 June 1995 "On return of excessively collected payments into the budget".
The Court session was attended by: I.A. Mironichenko - Deputy Chairman of the Supreme Court of the Republic of Belarus; M.V. Snegir - Deputy Procurator-General of the Republic of Belarus; V.G. Golovanov - Deputy Minister of Justice of the Republic of Belarus.
The proceedings were brought by the Constitutional Court of 19 July 1999 as a result of the constitutional motion of the Supreme Economic Court of the Republic of Belarus on the grounds of Article 116 of the Constitution of the Republic of Belarus, Articles 5 and 6 of the Law "On the Constitutional Court of the Republic of Belarus" and Article 43 of the Rules of Procedure of the Constitutional Court.
The subject to verification was explanation of the Main state tax inspection under the Cabinet of Ministers of the Republic of Belarus (at present - State tax committee of the Republic of Belarus) of 16 June 1995 No. 05/106 "On return of excessively collected payments into the budget" (hereafter - explanation of GGNI) published in "Natsionalnaya economicheskaya gazeta" of 12 July 1995 No. 28.
The specified explanation determines, in particular, that "sums of payments excessively collected into the budget as a result of checkings shall be returned to a payer with the calculation of the fine to the tune of the rate of the National Bank of the Republic of Belarus, which was effective at the moment of repayment of monetary funds into the settlement account of a payer for each day of all the period the day of return from the budget included. The procedure of return is worded in Methodical instructions of 1 July 1994 No. 110 "On the procedure of application of the Law of the Republic of Belarus "On taxes and dues collected into the budget of the Republic of Belarus" and the Law "On making alterations and addenda into the legislative acts of the Republic of Belarus on the issues of taxation" under which excessively collected payments into the budget shall be returned the next day after the adoption (reception) of the decision on the return owing to their wrong calculation as a result of the act of checking, but on or before 10 days term from the moment of applying by a payer on the return of excessively collected sums as a result of the act of checking and the decision adopted in accordance thereto. The fine shall be calculated to the sum of payments exclusively collected into the budget as a result of checkings. The fine shall not be calculated to the sums of excessively collected financial sanctions owing to their wrong calculation as a result of the act of checkings.
The Supreme Economic Court in its motion has specified that in accordance with explanation of GGNI the notion "sum of payments" does not include the notion "financial sanctions". In the opinion of the initiator of the motion such an approach towards the definition of the notion "sum of payments" is at variance with point 1 of the Provision on collection of taxes, dues and other compulsory payments approved by resolution of the Council of Ministers of the Republic of Belarus of 20 January 1999 No. 87 (hereafter - Provision) under which financial sanctions which are applying for the violation of the legislation on taxes and business undertaking are referred to compulsory tax payments. The Supreme Economic Court considers that taxes and non-tax payments including financial sanctions excessively collected into the budget as a result of checkings while returning from the budget are now unified sum of money, i.e. the sum to which the fine should be calculated.
Having heard judge-speaker, G.A. Vorobei, representatives as litigants, studied the materials of the case, analysed the provisions of the Constitution, laws of the Republic of Belarus and other enforceable enactments, the Constitutional Court held the following.
General procedure of collection into the budget of tax and non-tax payments and their return is envisaged in Article 10 of the Law "On taxes and dues collected into the budget of the Republic of Belarus" of 20 December 1991 with further alterations and addenda thereto. In accordance with the given procedure the sums of taxes, non-tax payments into the budget and financial sanctions which have not been paid in the specified period, as well as the sums of concealed (understated) profit (income) and taxes for another concealed object of taxation, fine for untimely making of payments, shall be collected for all the period of time of payment evasion under the order of tax organs in indisputable procedure from legal persons and judicially from natural persons (part one of point 1 of Article 10).
Part three of point 2 of Article 10 of the given Law specifies that sums of payments excessively collected into the budget as a result of chenkings shall be returned to a payer with calculation of fine to the tune of the rate of the National Bank of the Republic of Belarus which is effective at the moment of return of the monetary funds to the settlement account of a payer for each day of all the period of time the day of return from the budget included. The return shall be made during 10 days from the moment of filing application by payer.
As it follows from the analysis of the content of the abovestated norm, the lawmaker does not divide the sums of payments excessively collected into the budget as a result of checkings in any of their types and does not single out from them financial sanctions. Points 1 and 3 of Article 10 of the Law under analysis envisages financial sanctions as a type of payment equally with taxes and non-tax payments.
According to the Resolution of the Supreme Council of the Republic of Belarus "On the procedure of entry into force of the Law of the Republic of Belarus "On taxes and dues collected into the budget of the Republic of Belarus" the Council of Ministers of the Republic of Belarus has been charged to determine the procedure of entering the budget of the taxes and dues (point 4).
Effective Provision on collection of taxes, dues and other compulsory payments has made the classification of payments. Financial (economic, penalty) sanctions which are applying for the violation of the legislation on taxes and business undertakings, as well as other financial sanctions which are applying to the violators (legal persons and individual businessmen) are referred by state bodies exercising control, including those which are not authorized for their incontestable charge-off, to non-tax payments (sub-item 1.2).
According to paragraph three of point 35 of Provision the sums of payments excessively collected into the budget as a result of checkings shall be returned to a payer with calculation of fine at the rate specified in legislation which is effective at the moment of return of monetary funds on the settlement account of a payer for each day of all the period of time the day of return from the budget included.
The Constitutional Court also emphasizes, that Provision, conformably to the procedure of collection into the budget of the Republic of Belarus of the sums of financial sanctions which are using to the infringers of the law by other bodies exercising control which are not authorized for their incontestable collection, shall directly specify that in instance of abrogation by higher body exercising control or by the court of the resolution of the body exercising control on application of the financial sanction the return of the sums from the budget of the Republic of Belarus shall be made by the enforcement body on the grounds of the decision on the abrogation of the resolution with calculation of the fine in the procedure specified in part three of point 2 of Article 10 of the Law "On taxes and dues collected into the budget of the Republic of Belarus" (point 32).
Similar norms are contained in the instruction on application of Provision on collection of taxes, dues and other compulsory payments approved by order of State tax committee of the Republic of Belarus of 17 April 1999 no. 77 (hereafter - Instruction). Thus, point 2 of Instruction, as well as point 1 of Provision refer financial sanctions to compulsory non-tax payments. Point 59 of Instruction directly envisages the return of the sums of compulsory payments excessively collected as a result of checkings. Under the given point compulsory payments shall be returned to a payer with calculation of the fine at the rate specified in legislation which is effective at the moment of return of the monetary funds on the settlement account of a payer for each day of all the period of time the day of return into the budget included.
Thus, neither Provision nor Instruction shall exclude financial sanctions from the sums of payments which are subject to be returned and to which the fine shall be calculated as it was specified in the explanation of GGNI.
On the grounds of Article 7 of the Constitution of the Republic of Belarus the State, all the bodies and officials thereof shall operate within the confines of the Constitution and the laws enacted therewith.
In accordance with the Law "On the Council of Ministers of the Republic of Belarus and state bodies subordinated thereto" the republican administrative bodies subordinated to the Council of Ministers of the Republic of Belarus within their competence shall have the right to issue acts on the basis and with a view to observe the Constitution of the Republic of Belarus, laws of the Republic of Belarus, acts of the President of the Republic of Belarus, resolutions of the Council of Ministers of the Republic of Belarus (Article 12).
The Constitutional Court notes that acts of State tax committee should be in compliance with the Constitution of the Republic of Belarus, laws of the Republic of Belarus, acts of the President of the Republic of Belarus and resolutions of the Council of Ministers of the Republic of Belarus.
In this connection the Constitutional Court has come to the conclusion that explanation of GGNI of 16 June 1995 "On return of excessively collected payments into the budget" in the part where it is determined that the fine shall not be calculated to the sums of excessively collected financial sanctions owing to their wrong calculation as a result of the act of checking, is at variance with Article 10 of the Law "On taxes and dues collected into the budget of the Republic of Belarus", with the Provision on collection of taxes, dues and other compulsory payments approved by resolution of the Council of Ministers of the Republic of Belarus of 20 January 1999 No. 87 and the Instruction on application of the Provision on collection of taxes, dues and other compulsory payments approved by order of State tax committee of the Republic of Belarus of 17 April 1999 No. 77.
Based on the abovestated and guided by Article 116 of the Constitution of the Republic of Belarus, Articles 5, 6, 9, 38, 40 and 43 of the Law "On the Constitutional Court of the Republic of Belarus" the Constitutional Court
RULED:
1. To find to be at variance with the Constitution and the laws of the Republic of Belarus the explanation of Main state tax inspection under the Cabinet of Ministers of the Republic of Belarus of 16 June 1995 "On return of excessively collected payments into the budget" in part of specification that the fine shall not be calculated to the sums of excessively collected financial sanctions owing to their wrong calculation.
To consider the given norm to be null and void from the day of adoption of the present Judgment.
2. To publish the present Judgment within the term specified in legislation in "Narodnaya gazeta", "Zvyazda", as well as in "Vedamastsi Natsionalnaga skhodu Respubliki Belarus".
3. The Present Judgment shall come into force from the date of its promulgation, is final and subject to no appeal and protest.
Presiding Officer —
Chairman of the
of the