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clearing of payment of the customs duties concerning temporarily taken out Russian Courts of Admiralty as means of maintenance of realisation of functions of the customs duties

Clearing of customs duties payment is a system element of legal regulation of the duty, therefore research of theoretical and practical aspects of clearing is impossible in a separation from complete representation about functions, signs and the legal nature of the customs duties.

This question has demanded research in connection with absence of uniformity in scientific estimations in this occasion, presence in financially - legal theory of characteristics of the customs duties mismatching the legislation, and necessity of the permission of disputable aspects of the theory.

The customs duties are the basic economic tool of the state influence on foreign trade and an element tamozhennotarifnogo регулирования1, and also one of kinds of customs payments [113 [114].

Though from the beginning of reforming of the customs legislation has passed more than 20 years, in scientific community disputes concerning the legal nature of the customs duties do not stop: about possibility of reference of the specified payment to indirect taxes or to number of not tax incomes, that is to gathering of not tax character [115].

Many pre-revolutionary scientists (E.N.Berendts, V.A.Lebedev, S.I.Ilovajsky, I.I.Janzhul, D.M. Lvov, A.A.Nikitsky) held the opinion about the tax nature of the customs duties [116]. As specifies

T.A.Yakubov, in a pre-revolutionary science to number of supporters of such approach also concerned I.H.Ozerov, G.A.Vatsuro, S.A.Kotljarovskij1. Thus not only the idea of the tax nature of the customs duties was defended, but also the critical relation to the expression - "customs duties" as, according to scientists of that time, such payments it was necessary to call «the customs tax» [117 [118] [119] expressed, and expression "duty" is used exclusively owing to the established habit [120], «as before their collection was accompanied often by rendering of this or that service from the government, and then the duty named all that went from olden time» [121]. Now N.M.Artyomov also specifies, that the use of a word "duty" in the name of this external economic tax is a historical vestige, tradition [122].

For this reason the customs duties as a measure of customs-tariff regulation concerning the imported goods were traditionally considered as "indirect tax" which joined in final cost of the goods and "were shifted" on the consumer [123].

The basic arguments in favour of the tax nature of the customs duties are reduced to that it possesses the signs inherent in the tax: gratuitousness of payment, bezekvivalentnost, irrevocability, compulsion of payment, presence of basic elements of the taxation, alienation of money resources of payers in advantage бюджета1, security compulsory force of the state, absence of communication with the concrete State expenditure [124 [125].

It is not deprived common sense instructions that at obvious similarity of customs and state duties, last, unlike the first, admits payment of tax type [126].

According to V.G.Panskova and V.V. Fedotkina, the customs duties by all means it should be considered as the tax as in any competent classification of taxes it always is present at quality of the classical sample of the indirect taxation.

The tax nature of the customs duties is shown that with its help the state interferes with a national economy and regulates foreign trade activities [127].

Idea about that the customs duties have character of an indirect tax also support S.V.Halipov [128], V.D.Baranov [129], A.A.Gravina [130], So-called Troshkina [131]. The affinity of the legal nature of the customs duties to taxes and tax collections marks I.A.Tsindeliani [132]. Among supporters of the tax nature of the customs duties of R.N.Cherlenjakom are allocated also D.V.Vinnitsa, I.I. Drivers, G.P.Tolstopjatenko, V.P.Shavshina, E.V.Kudryashov, V.S.Chernyavsky [133].

Before acceptance of the Federal act from July, 29th, 2004 № 95-FZ «About modification of parts the first and the second the Tax code of the Russian Federation and a recognition become invalid for some acts (positions of acts) Russian Federation about taxes and tax collections» 1, and the legislator carried the customs duties to number of tax incomes of the federal budget. It directly followed from the subparagraph of point 1 of article 19 of the Law of the Russian Federation from December, 27th, 1991 № 2118-1 «About bases of tax system in the Russian Federation» and point 8 of article 13 of the Tax code of the Russian Federation.

Now [134 [135] customs duties are carried by point 1 of article 51 of the Budgetary code of the Russian Federation to number of not tax incomes of the federal budget. It is necessary to notice, that on the given question there is no uniform approach among member states EAES. So, a solidary position the Kirghiz Republic, carrying point 3 of article 18 of the Budgetary code occupies only [136] customs duties to number of not tax incomes of treasury. Byelorussia [137], Republic Kazakhstan [138] and Republic Armenia [139] take of a return position and define the customs duties as a part of tax incomes of the state budget.

Despite the approach of the Russian legislator, now sights of many supporters of the tax nature of the customs duties have not changed. By N.M.Artyomov obosnovanno it is noticed, that the reference to the legislation as, as is known, «three words of the legislator — and the whole libraries become paper for recycling» [140] cannot serve in dispute concerning the legal nature of the customs duties as considerable argument. In the literature artificiality of transfer of the customs duties in a category not tax платежей1 since its legal nature corresponds to the signs of the tax resulted in article 8 NK the Russian Federation [141 [142] is marked.

Concerning a position of supporters of not tax nature of the customs duties it is necessary to note the following.

For the first time the idea of reference of the customs duties to number of group of not tax incomes has been formulated in the seventies E.A.Rovinsky's XX-th centuries, further it by N.I.Himichevoj [143]. Occurrence of the theory of not tax nature of the customs duties in the Soviet years contacts weakening of fiscal function of the specified payment as a result of change obshchestvennopoliticheskogo a system as the basic source of incomes of treasury of the USSR were nenalogovye [144].

Now, supporting the legislator, many scientists carry the customs duties to number of public not tax incomes [145]. The basic arguments in protection of this approach are reduced to the following.

First, unlike the tax the customs duties do not have regularity sign as the duty of its payment arises only in case of the introduction of the subject into customs legal relation [146]. Secondly, there is a possibility to delegate payment of the customs duties to the third party that is excluded concerning taxes [147]. Thirdly, at the customs duties it is established vozmezdnost as as a result of its payment the right of import or export of the goods is given to the person, their movings through customs border [148].

Concerning N.M.Artyomov's these arguments it has been stated proved enough критика1, in support and which development following arguments are offered.

The sign of a regularity which is absent at the customs duties, also is absent and at the tax to the added value and the excises a part of customs payments and levied from the imported goods according to the selected customs procedure, assuming their payment. Moreover, the regularity sign is absent and at a State Tax which the legislator has defined as the tax income of the budget. However the given circumstance does not deprive of the tax nature the VAT, neither excises, nor a State Tax. As specify H.A.Andriashin, V.G.Svinuhov and V.V. Balakan, the legal nature of the VAT and excises is not called at all in question [149 [150] though the VAT and the excises levied by customs bodies, differ from the similar payments administered by the tax organ by the single character and absence of the tax period, that does not exclude their tax nature [151]. Fair statement I.A in this case is represented. TSindeliani about that modern taxes as a whole do not possess a regularity sign as as object of the taxation that does not answer criteria of a regularity [152] frequently acts.

Hence, absence at the customs duties of a sign of a regularity cannot form the basis for a conclusion about its not tax nature. Otherwise it is fair to recognise the VAT and the excises levied by customs bodies, or a State Tax also not possessing the tax nature.

Giving reason the for not tax nature of the customs duties, scientists often underline it vozmezdnyj character, connecting its payment with actions tamo - zhennogo body in advantage плательщиков1, actually identifying it with the custom charges or a State Tax.

The customs duties are usually paid before «release of the goods», i.e. action of customs body after which interested persons have the right to use the goods according to the declared customs procedure or is perfectly in order and on conditions which are established concerning the separate commodity classes which are doing not come under in conformity TK EAES to a premise under customs procedures. From this, at first sight, it is possible to draw a conclusion, that the customs duties really represent gathering for the action of customs body necessary for release of the goods.

However such conclusion contradicts not only to the scientific doctrine, but also the current legislation. In particular, the position of the doctrine concerning gathering is reduced to that they represent compensation for rendering by official bodies of services to the population and have the purpose a covering of costs for the maintenance of corresponding establishments. Only the part of expenses on their maintenance so that other part was paid extra from taxes thus should become covered, that is would be displayed on all population [153 [154].

Already only because the size of the customs duties depends not on volume made by officials of customs body of actions, and from quantity of the imported goods (its cost, etc.) and the applied rate of the customs duties, unreasonable its reference to a category of gathering and consideration as a payment for the actions made from customs bodies is represented.

Besides, some goods are imported with application to them of the zero rate of the customs duties. In this case the conclusion is possible, that customs bodies carry out in favour of persons who posess such goods, actions is gratuitous, that means unequal position of participants of foreign trade activities. In case of goods re-export the paid customs payments come under to return that is excluded in the event that they would be a payment for the actions made by customs bodies.

A.A.Gravina adheres to the similar point of view, noticing, that the customs duties are levied without reciprocative performance, i.e. do not represent a payment for services. Receipts from its payment are not intended for financing concrete state расходов1. E.N.Berendts specified, that the size of gathering (duties which represent the tax), values levied at transportation, is commensurated at all with the price of services of the customs bodies testifying, estimating or measuring brought subjects, and by these subjects or with their weight, volume, and then with those purposes for the sake of which custom charges [155 [156] are established. The similar conclusion also follows from chapter 7 TK EAES establishing an order and features of calculation of the size to coming under payment of the customs duties.

vozmezdnyj character of the customs duties also is often seen in a science that it is a payment for import or goods export.

Such approach takes the basis from a definition of the term "customs duties" which has been provided by the legislation in action of the Customs code of the Russian Federation (1993). According to point 19 of article 18 of the specified code the customs duties were understood as the payment which was levied by customs bodies of the Russian Federation at import of the goods on the customs territory of the Russian Federation or export of the goods from this territory and were the integral condition of such import or export.

By article 22 of the Customs code of the Russian Federation (1993) it has been provided, that moving of the goods and vehicles through customs border of the Russian Federation was made according to their customs modes. Thus in regulation existing earlier obvious communication between moving and customs modes was looked through, some of which provided payment of customs payments as a condition of a premise of the goods under their action. In subparagraphs 1 and 2 points 1 of article 319 of the Customs code of the Russian Federation (2003) have been directly specified, that the duty on payment of the customs duties arose at moving of the goods through customs border, namely: at import of the goods - from the moment of crossing of customs border, and at export of the goods - from the moment of giving of the customs declaration or fulfilment of the actions directly directed on export of the goods from the customs territory of the Russian Federation.

This legal basis allowed to approve, that the central place in the mechanism of customs-legal regulation belonged to customs modes, which defined an order of moving of the goods through customs border of the Russian Federation (depending on the moving purpose), and also others, connected with moving of the goods, условия1.

It is represented, that customs duties consideration as payments for granting (occurrence) of the right to import (export) of the goods or a condition of its import has been caused by that moving of the goods through customs border of the Russian Federation was supposed, as a matter of fact, only under condition of declaring by means of the statement to customs body subjects of foreign trade activities of all necessary data on the goods and the vehicles moved through customs border, about their customs mode, and also other data necessary for the customs purposes [157 [158].

Meanwhile, it appears, what even in action of Customs codes of the Russian Federation 1993 and it was impossible to recognise the approaches stated above proved enough and reflecting the actual facts connected with import of the imported goods 2003.

The customs duties are inconvenient for considering as a payment for import of the goods or for occurrence of the right to import of the goods in connection with the following.

According to article 34 of the Constitution Russian Федерации1 (further - the Constitution of the Russian Federation) belongs to everyone the right of free use of the abilities and property for enterprise activity, including in the external economic sphere that provides the law of persons on moving of the goods through border. Similar position is fixed in point 1 of article 9 TK EAES: all persons have with equal reason the right to moving of the goods through customs border of the Union as it should be and on conditions which are established by the specified code or according to it. Earlier it has been provided in point 1 of article 150 TK the HARDWARE.

In a science it is noticed, that specificity of customs regulation consists in a purposeful establishment the state of an order of moving of the goods, at which observance the goods as the moving subject, gets the properties necessary for the purpose of its moving [159 [160].

Legal equality of the rights to moving of the goods and vehicles admits for all persons irrespective of, they are proprietors of the goods, their buyers, owners or act in other quality, sufficient for fulfilment of the actions provided by the legislation. The essence of this principle consists that the state cannot establish a category of the persons having the right to moving of the goods. Officials of customs bodies cannot at own discretion, not leaning against the law to deprive the person of the right to import or export of the goods and vehicles of the international transportation [161].

If to consider the customs duties as a payment for import of the goods in that case it is necessary to recognise it as analogue of "appearance" - the duty levied in Ancient Russia for shown in customs товар1 that contradicts its essence and appointment. The similar sight at the customs duties nature is confuted if to consider a situation when it comes under to return. For example, if the person who is carrying out foreign trade activities, has imported the foreign goods, has carried out their declaring according to a customs procedure of release for internal consumption and has paid the customs duties, but subsequently, in connection with default by the counterpart of conditions of the transaction, being guided by subparagraph 7 of point 2 of article 238 TK EAES, has placed them under a re-export customs procedure, the customs duties come under to return. In spite of the fact that import has taken place, the right to import has been realised, and actions by officials are made, the brought payments come back to the participant of foreign trade activities. It does not allow to consider the customs duties as a payment for import of the goods or for the counter actions made by customs body, differently it would not come under to return.

System interpretation of articles 13, 14, 87 TK EAES allows to draw a conclusion, that import of the goods (crossing of customs border EAES by them) is not put in dependence on entering of customs payments. From what follows, that the right to import of the goods does not arise and cannot result from customs duties payment: it is guaranteed for all participants of foreign trade activities and does not depend on entering/nevnesenija of customs payments.

Customs duties payment also cannot be considered as a condition of import of the goods.

In the scientific environment payment of customs payments was always considered, how one of conditions of moving of the goods and vehicles through customs border of the Russian Federation [162 [163], that as it was specified above, was

It is caused by the legislation operating earlier. It was thus noticed, that if the goods according to norms of the customs-tariff legislation come under to taxation by the customs duties, it can be moved through customs border of the Russian Federation only after payment due customs платежей1.

Now it is impossible to recognise the similar approach proved enough in connection with the following.

According to subparagraph 27 of point 1 of article 2 TK EAES moving of the goods through customs border of the Union includes import of the goods on the customs territory of the Union or export of the goods from the Union customs territory. According to subparagraph 3 of point 1 of article 2 TK EAES import of the goods on the Union customs territory is fulfilment of the actions connected with crossing of customs border of the Union in which result the goods have arrived on the Union customs territory in any way, including transfer to the international items of mail, use of pipeline transport and transmission lines, before their release by customs bodies.

From here follows, that result of import of the goods is their arrival on the Union customs territory in any way.

Regarding 1 article 193 of the Federal act from November, 27th, 2010 № 311-FZ «On customs regulation in the Russian Federation» [164 [165] (further - FZ № 311) it is specified, that import of the goods to the Russian Federation should be carried out in arrival places. According to points 2 and 4 articles 10 TK EAES arrival places are places of moving of the goods through customs border of the Union which represent check points through frontiers of member states or other places defined according to the legislation of member states. According to article 11 of the Law of the Russian Federation from April, 01st, 1993 № 4730-1 «About Frontier of Russia - skoj Federations» 1 (further - the Law of the Russian Federation № 4730-1) the admission through Frontier of the Russian Federation (further - the Frontier Russian Federation) vehicles, cargoes, the goods consists in a recognition of legality of their moving through G osudarstvennuju border on territory of the Russian Federation. The basis for the admission through G osudarstvennuju border of the Russian Federation of cargoes, the goods is presence of the valid documents on vehicles, cargoes and the goods.

System interpretation listed above positions allows to draw a conclusion that the goods are considered imported from the moment of arrival of the goods on the Union customs territory, that is in a check point through frontier of member state on which they have arrived. However legally import of the goods admits made (including therefore it is resolved) after their admission through Frontier Russian Federation.

Owing to a part of 5 articles 11 of the Law of the Russian Federation № 4730-1 admission of vehicles, cargoes, the goods through Frontier Russian Federation includes realisation of the boundary and customs control, and also other kinds of the control in the cases provided by the legislation. Customs bodies carry out the customs, transport control, and also sanitarnokarantinnyj, the veterinary and quarantine phytosanitary control [166 [167] regarding carrying out of check of documents.

Thus according to article 12 TK EAES in interrelation with subparagraph 10 of point 1 of article 2 TK EAES at moving of the goods through customs border of the Union interdictions and restrictions, i.e. measures of not tariff, technical regulation, sanitary, veterinarnosanitarnye both quarantine phytosanitary and other measures should be observed. The similar norm existed and in point 1 of article 152 TK the HARDWARE.

Thus, as the basic condition for import of the goods on the Union customs territory necessity of passage listed above kinds of the control and observance of statutory interdictions and restrictions serves. For example, the decision on import podkarantinnoj production according to point 32 of the Governmental order of the Russian Federation from August, 13th, 2016 № 792 [168] is made out by the official of Federal service on veterinary and phytosanitary supervision (or its territorial body) by putting down on the phytosanitary certificate (at its presence) and the transport (transportation) document of a stamp «Import is resolved».

Hence, now for moving of the goods through customs border it is necessary to recognise as the basic condition observance of the interdictions provided by the legislation and restrictions, and also necessity of passage of corresponding kinds of the state control, instead of customs duties payment.

It is necessary to notice, that Customs code EAES provides some cases at which the duty on customs duties payment arises at crossing by the goods of customs border of the Union. However such cases or are not connected directly with the person who is carrying out foreign trade activities, or represent a measure, a way of reaction to its misbehaviour.

In particular, according to point 1 of article 91 TK EAES at arrival of the goods on the customs territory of the Union the duty on payment of the import customs duties and other obligatory payments arises at a carrier from the moment of crossing by the goods of customs border of the Union. That is after crossing by the goods of border and arrival in a check point the duty on customs duties payment arises at a carrier, instead of at the participant of foreign trade activities (for example, the proprietor of the goods). Moreover, in the resulted rule of law the moment of occurrence of a duty on payment of the customs duties, instead of term of its execution which, actually comes in the limited cases (for example if the goods are not delivered in an arrival place is underlined, are lost, etc.).

Besides, point 4 of article 91 TK EAES does not carry the admission of the goods through frontier (i.e. end of their import) to number of cases when the duty on payment of the customs duties comes under to execution by a carrier.

Duty on payment of the customs duties and term of its execution coincide with import of the goods only in case of illegal moving of the goods through customs border of the Union. According to article 56 TK EAES the duty on payment of the import customs duties at such moving arises at import of the goods on the Union customs territory, and term of its payment considers day of crossing the goods of customs border of the Union or day of revealing of the fact of illegal moving if day of crossing is not established.

However similar situations are faster an exception of normal practice of foreign trade activities and consequently they cannot be taken into consideration by consideration of communication of payment of the customs duties with import or export of the goods.

Therefore hardly it is possible to agree with a popular belief, that the legal relations connected with discharge of duty on payment of customs payments arise in connection with goods moving through границу1. Between actual import of the goods and payment of the customs duties - there is no direct communication (except for the subsequent customs registration assuming their payment). Therefore is A.N.goat proved opinion rina about necessity of allocation for separate group of the payments levied at customs registration which concern the customs duties, the VAT and the excise [169 [170].

It is represented, that customs duties payment is one of the conditions which observance is necessary for release of the goods according to this or that customs procedure providing its payment, rather than a payment for moving of the goods.

Well-known, that the selected customs procedure influences possibility of moving of separate commodity classes, 10 times customs registration and the customs control, for the size of the customs payments which are coming under to payment concerning the moved goods and vehicles, and also defines a circle of actions which can be carried out in the relation последних1. According to point 1 of article 118 TK EAES, release of the goods is carried out by customs bodies if conditions of a premise of the goods under the declared customs procedure (or the conditions established for the separate goods, doing not come under to a premise under procedures) are observed and custom charges are paid.

Earlier operating legislation (article 195 TK the HARDWARE) fixed payment of the customs duties as an independent condition for release of the goods, however, now it is meant in subparagraph 1 of point 1 of article 118 TK EAES since customs duties payment is carried to number of conditions of a premise of the goods under the declared customs procedure.

Thus customs duties payment is a condition of a premise of the goods only under some customs procedures: release for internal consumption (subparagraph 2 of point 1 of article 135 TK EAES), temporary import (the payment in part owing to subparagraph 2 of point 1 of article 220 TK EAES) etc. [171 [172]

Thus, not physical moving or arrival of the goods in a check point (an arrival place) attracts duty occurrence on customs duties payment, and a premise of the goods under this or that customs procedure for the purpose of their release by customs bodies according to it.

The stated confirms, that according to operating legal regulation there is no communication between physical import of the goods and duty occurrence on payment of customs payments. The concept definition «import of the goods on the Union customs territory» directly specifies border of this action - before release of the goods by customs bodies. The foreign goods can be imported, placed on a warehouse of time storage and on reaching a storage deadline, are taken out back within the limits of a customs procedure of re-export without customs duties payment. It testifies that the foreign goods are imported on territory EAES, crosses customs border, is in territory and is taken out without entering of corresponding payments.

In this connection it is represented, that the customs duties are fair for considering in wide and narrow sense. In a broad sense it can be considered, first, as a payment for release of the goods according to a customs procedure providing its payment; secondly, as a payment in cases of illegal import, losses of the goods by a carrier, the owner of a warehouse of time storage, non-observance of conditions of a customs procedure etc.

In narrow sense the customs duties can be considered from various positions as a payment for: acquisition by the foreign goods of the status of the goods of the Union - for the import customs duties (the termination of the status of the goods of the Union, acquisition of the status of the foreign goods and possibility of their export - for the export customs duties); unfair behaviour of a carrier, the owner of a warehouse of time storage etc.; the termination of the customs control; possibility to use the import goods on a level with the Union goods (possibility of unobstructed use, alienation of the goods outside of the Union).

According to point 1 of article 13 TK EAES after crossing by the goods of customs border of the Union and before their release there are certain restrictions in possession, using and (or) the order them. After release they can be used according to a customs procedure under which were located, i.e. there is a various volume of freedom in their uses depending on the applied customs mode (procedure) 1.

The position about that the customs duties can be considered and as a payment for clearing of state actions, from the customs control, is divided by many scientists. For example, A.A.Gravina noticed, that release of the goods in the free reference is understood as the order without the customs control on the customs territory of the Russian Federation or outside of this territory by the goods and the vehicles dropped through customs border without the obligation about their export [173 [174].

Considering stated, it is represented, that containing in subparagraph 33 of point 1 of article 2 TK EAES the definition of the term "customs duties" is enough wide (and even a little abstract) as from its close interpretation follows, that the customs duties are levied at any moving of the goods through customs border of the Union irrespective of the selected customs procedure that mismatches the validity, and also to existing legal regulation and can mislead the future participants of foreign trade activities planning fulfilment of export-import transactions.

With a view of specification of its given definition it is expedient to add with a phrase: «in the cases established by the present Code, necessary for release of the goods», having stated subparagraph 33 of point 1 of article 2 TK EAES in the following edition: «the customs duties - the obligatory payment levied by customs bodies in cases established by the present Code, necessary for release of the goods in connection with their moving through customs border of the Union» [175].

Briefing stated in this part of research, it is possible to conclude, that the customs duties have the certain signs, allowing to argue rather its tax nature, however with the account of that as a part of the customs duties there is no number of elements at which presence she undoubtedly would admit the classical tax, it is expedient to agree with O.J.Bakaevoj that the point of view, according to which is represented to the most preferable, the customs duties take a special place, certainly, concerning to fiscal payments of public mission.

Within the limits of an estimation of efficiency of clearing of payment of the customs duties concerning operations on repair and (or) to the maintenance service of the Russian Courts of Admiralty executed outside of territory EAES, it is necessary to address to a question on functions of the customs duties and legal means of their realisation. It is fairly noticed, that any phenomenon of the social validity can realise the appointment only in the event that will function. On what functions are carried out by this or that phenomenon how there is a realisation of these functions and to what efficiency, it is possible to judge the phenomenon, its basic lines, value in a society life, and also about prospects of its existence and development. Studying of functions is studying most явления1.

In the doctrine it is accepted to allocate two basic functions of the customs duties: fiscal and regulating which also often designate as for - shchitnuju [176 [177]. Similar division is the core in a science and is supported by many scientists. During N.I.Turgenev's pre-revolutionary time noticed, that despite seeming evidence of the purpose of introduction of the duty - only for income reception, the government, collecting money, sometimes connects it for the purpose of a direction (regulation) of the national industry [178].

Some authors allocate the specified functions as a whole at tamozhennotarifnogo the regulations which element are the custom duties necessary for definition of the size coming under payment customs on - шлин1. Thus customs duties functions are closely crossed directly with custom duties functions though it is considered, that at the last they are carried out by a complex of means, the core among which are the customs duties [179 [180].

Regulating function of the customs duties assumes achievement of some the purposes. First of all, this contribution to rise in price of the imported goods and protection of domestic manufacturers of the similar or interchangeable goods against an excessive foreign competition in home market [181]. About use of the customs duties as means with which help the price of the goods and, thereby raised, their sale decreased, that in turn complicated their competition to the goods of native (national) manufacture, also marked E.N.Berendts [182].

Besides it the purposes of regulating influence of the customs duties can be also: change of balance of import and export to the necessary party, allowing to choose priority areas of export, import and to regulate the general stream of the goods; increase of competitiveness of domestic manufacturers and exporters; maintenance of the state control over passage of cargoes through border; balancing, torgovopoliticheskuju [183] (N.I.Turgenev fairly noticed, that commercial treaties are not necessary when there is a good tariff [184]), and also control, static and other functions. However scientists notice, that any other classification also can be shown to two functions specified above [185].

Fiscal function of the customs duties is reduced to increase in incomes of the state budget. Fiscal function of custom duties is of great importance for Russia. In separate years of receipt from collection of customs payments provided to 50 % of a profitable part federal бюджета1. It is important to notice, that in the conditions of rather narrow base of incomes of the budget in Russia import duties are one of most reliable sources of replenishment of the state treasury.

However it is quite obvious, that the purposes of protection of this or that branch by means of rise in price of cost of the imported goods are reached at the expense of customs duties collection, i.e. realisation of its fiscal potential. It allows to note necessity of differentiation of concepts the purpose and function. As it is noted by M.B.Razgildievoj, researchers often do not spend distinction between them. According to data of philosophy the purpose is a represented and desirable future event or a condition, representation of result of our action [186 [187]. In the same foreshortening - as ideal representation of results of certain activity - is understood the purpose and jurisprudence [188]. Legal means is formed to be realised, carry out the function. From this it is possible to conclude, that function, being the characteristic of action of concrete legal means, acts as the integral property of its internal maintenance: Function of legal means is realised in each certificate of its action or application. While the purpose does not enter into properties of its internal maintenance, being that future condition or event which should come as a result of function realisation. That fact, that legal means is applied in set of circumstances, to unlimited set of subjects, defines negarantirovannost purpose achievements in each case of realisation of function, i.e. certain probability of result of action of legal means. The probability of result of action of legal means causes possibility of an establishment of its efficiency as parities between actual result of their action and those social purposes for which achievement these norms were приняты1.

On this basis it is possible to conclude, that protection of national economy by means of customs duties collection acts as the purpose in relation to its fiscal function. Other understanding forces to conclude, that fiscal and regulating functions of the customs duties coincide. However, it appears, that it not so. In the theory signs of regulating function are not shined, though authors argue on their differentiation.

So, scientists discuss what of the listed functions of the customs duties prevails over another. Supporters of prevalence of fiscal function notice, that duties are one of most reliable sources of replenishment of the state treasury [189 [190], and the care of filling of the state treasury considerably prevails in the customs policy of the Russian Federation.

On the other hand, for example, A.V.Zubach believes, what exactly prevalence of regulating function of the customs duties over fiscal, is the criterion distinguishing the customs duties from the tax [191]. Among supporters of a priority of regulating function of the customs duties over fiscal, it is possible to allocate I.F.Harisova, I.A.Tsindeliani, N.N.Zlobina and others.

So-called Troshkinoj it is noticed, that the priority of one function over another directly depends on a spent foreign trade course of the state (that is well looked through at separate stages of history) [192]. It is represented, that it is possible to agree with this opinion: certainly, the customs duties (as well as other obligatory payments which are incomes of budgetary system) the potential not only bears in itself maintenance of replenishment of the budget with incomes, but also regulating influence on branches of economy or its separate segments.

Regulating and fiscal functions are allocated not only at the customs duties, but also at the tax, the understanding in which relation at the last has developed a little bit more widely, than concerning customs duties functions. As tax and customs politicians represent branches of a financial policy (which in science of finances it is considered from various positions) 1 and are a component of economic policy of the state [193 [194] the maintenance of the listed functions as a part of specified above fiscal payments finds out certain similarity, including in approaches to definition of their parity.

Therefore in search of the answer to a question on signs of regulating function of the customs duties it is expedient to reveal displays of regulating function of the tax which probably to apply and in relation to the customs duties.

The idea of presence at the taxation of regulating function and necessity of its use is not new, and has been comprehensively shined by economists - theorists from end H! H century [195] Meanwhile, according to experts, for years of economic reforms in Russia and the optimum tax system, in a due measure carrying out fiscal function and at the same time promoting the expanded reproduction [196] has not been created.

As marks JU.N.Yerofeev, regulating function of taxes is directed on strengthening of the state intervention (there where it is necessary) to economic processes [197]. E.A.currant specifies, that the tax should create necessary conditions for economy development as a whole. Thus stimulating beginning should be put in pawn and in fiscal function of taxes [198]. O.V.Kachur notices, that regulating function is shown that taxes can either stimulate, or constrain rates of economic development so, in them it is inherent regulating функция1. N.D.Zaripova carries taxes to number of the main levers of regulation of economy which act as one of composed its successful development [199 [200]. R.K.Kostanjan believes, that regulating function is shown in regulation of social and economic processes in the country, and also in stimulation of development of certain branches, either restriction or restraint of any economic processes [201]. A.V.Bersenev [202] adheres to similar sights, etc.

According to O.V.Gordeevoj, observance of a principle of a prevalence of the regulating beginning of taxes over fiscal is a necessary condition of effective tax regulation [203]. At the same time P.I.Kuligin believes, that between regulating and fiscal function of taxes the optimum parity [204] should be provided. Thus, as correctly specifies O.V.Kachur, realisation of fiscal and regulating functions depends not only on such parity, but also from those purposes which are put by the state at a certain stage of development, considering real economic conditions [205].

From stated it is possible to conclude, that realisation of regulating function can be directed on stimulation of development of branch of economy or, on the contrary, restraint of its development. It is quite obvious, that restraint of development of branch of economy probably at the expense of strengthening of its taxation. It is thought, that fiscal function, instead of regulating will be shown in this case. Last will take place when the tax mechanism is used for maintenance of development of branch of managing that is possible at the expense of taxation decrease. Important E.M.Ashmarinoj's conclusion that as one of tools of regulation of any kind of activity or economy branch, and also for stimulation of their development act tax льготы1 is represented.

Thus, regulating function is carried out in a counterbalance fiscal, i.e. shown in the form of decrease in the size of obligatory payment, including customs duties. It is represented, that regulating function of the customs duties is capable to prove in privileges after its payment, partial or full clearing of it.

Privileges on payment of customs payments are one of elements (facultative) legal structure of customs payments and the important tool of customs-tariff regulation foreign trade is active - sti [206 [207]. With their help in one cases the legislator interests the subject of foreign trade in legislative behaviour, in others - encourages import (export) of the certain commodity classes favorably influencing development of a national economy, in the third - aspires to realisation of principles of international law, including a most favoured nation treatment, in the fourth - supports the persons requiring reception of advantages at moving of the goods through customs border [208].

Privileges on payment of customs payments are the effective tool of the government and play the important role in maintenance of stability of the foreign trade relations and efficiency of the decision of social and economic problems [209]. Moreover, privileges on customs payments are one of principal views of privileges at which financial costs of participants of foreign trade activities considerably decrease, that subsequently influences volumes of goods turnover and transfer of customs payments in the federal budget, and also promote improvement of investment appeal of the country [210].

In spite of the fact that granting of privileges to some extent involves decrease in public revenues, customs-tariff privileges play one of the important roles for achievement of the purposes of tariff regulation.

It is necessary to notice, that scientists repeatedly focused attention that one of the most widespread categories tamozhennopravovyh disputes is connected with the appeal of refusal of customs bodies in privilege application on payment of customs payments.

Thus, privileges on customs duties payment as display of its regulating function, despite their facultative character, have the important practical value and are effective controlling instrument of economy.

Let's underline, that is necessary to allocate regulation of economic processes as the purpose which can be reached means both fiscal, and regulating function of the customs duties. Owing to what customs duties collection is capable to provide balance of export of goods/import, protection of national manufacture against a foreign competition at the expense of rise in price of the imported goods, and also to promote development of separate branches of economy, conditioning for such development in the form of granting of corresponding financially-legal privileges, decrease in the size of the customs duties or others preferentsy.

It is represented, that the policy spent now in the Russian Federation in sphere of collection of the customs duties from ship-owners testifies to a prevalence of fiscal function over the regulating. It is shown, for example, that by the basic strategic target of development

Customs службы1 full receipt of incomes in the federal budget, i.e. 100 %-s' performance of the predicted task under incomes administered by customs bodies is federal. From the scientific message critical judgements of the relative given indicator [211 [212] already expressed.

The sum of collectings from ship-owners grows, for example, according to data of Far East operative customs in an interval with 2011 for 2014 80 checks by which results it has been imposed penalties for a total sum of 340,5 million rbl. that has constituted 43 % from the sum of voluntary paid customs duties and taxes have been realised; it is collected - 198 million rbl. is marked by Customs bodies stable growth of the amounts collected of the customs duties and taxes: in 2014 it is collected 72,1 million rbl. (in 2013 - 65,5 million rbl., in 2011 - 1,2 million rbl.) [213]. In 2015 customs payments in the sum of 1,5 billion rbl. have been shown to payment, that three times exceeded indicators of 2014 (502 million rbl.) [214]. In 2016 customs of Far East region on the facts of evasion from payment of customs payments at declaring of operations on repair of the Courts of Admiralty abroad Far East customs initiate 4 criminal cases and 31 business about administrative violation where the sum of evasion from payment of customs payments has constituted almost 82 million rbl., and for the first half of the year 2017 - 3 criminal and 6 administrative affairs, thus the size of non-payment of customs payments has exceeded 48 million rbl. [215]

Considering declared in the Sea doctrine of the Russian Federation of the purpose on development of ship-repair branch and creation of the favorable organizational and economic environment promoting development and maintenance of fleet, legal regulation of the customs duties concerning operations on repair (maintenance service) of temporarily taken out Courts of Admiralty should provide realisation and fiscal and regulating function. This conclusion is caused by that the ship-repair branch is not the payer of the customs duties from operations on repair (maintenance service), hence, the problem of its development can be realised by means of fiscal function of the customs duties, i.e. its collection from ship-owners.

Regulating function of the customs duties levied from operations on repair and (or) maintenance service of the Courts of Admiralty if they are executed outside of territory EAES, should be shown in clearings of its payment, given to ship-owners in the form of a financially-legal privilege (which now contains in article 277 TK EAES) when such operations have been caused by objectively necessary requirements of operation of a sea vessel. However practice testifies, that application of this privilege inconveniently: the legislation does not fix sufficiently clearness of the basis for its application, and customs bodies and degrees of jurisdiction interpret them narrowly, disregarding features of operation of the Courts of Admiralty.

The expediency of such clearings speaks not only with inability now the ship-repair enterprises to provide performance of works necessary for ship-owners, but also that the additional financial encumbrances caused by difficulties in realisation of the right to clearing, stimulate ship-owners to registration of vessels belonging to them in foreign jurisdictions that attracts behind itself a number of negative consequences both for the country budget, and for ship-repair branch.

It reduces efficiency of realisation both regulating, and fiscal functions of the customs duties from cost of the repair (maintenance service) of the Courts of Admiralty executed abroad. As a result of a re-registration of domestic vessels in jurisdictions of the foreign states and their operation under "convenient" flags, the state loses as incomes not only customs payments from such vessels, but also taxes from their operation, taxes to incomes of physical persons (members of crews), incomes of other obligatory payments, including in off-budget funds.

In connection with transfer of the Russian vessels under jurisdiction of the foreign states the ship-repair enterprises do not receive new orders for performance of repairs and maintenance service of the Courts of Admiralty, that in turn excludes possibility of creation of new workplaces, increases of employment of the population in the specified branch of manufacture, and also deprives the state of the income in the form of fiscal payments and the payments paid by employers of given sector of economy.

It testifies to low efficiency of customs regulation in this part which as fairly specifies A.P.Dzhabieva, speaks orientation on fiscal, instead of regulating функции1.

The research carried out this paragraph allows to formulate following conclusions.

The customs duties in system of the obligatory payments which are incomes of budgetary system, can be considered as special payment as its legal nature is characterised by signs inherent both to the tax, and not tax payments. It allows to assume, that at an establishment and customs duties collection the general principles of the taxation, as the principles defining the constitutional requirements to an establishment and collection of public payments [216 [217] should be considered developed in the doctrine and practice of the Constitutional Court of the Russian Federation.

Consideration of the legal nature of the customs duties has allowed to establish, that it is not a payment for import (export) of the goods or for vozniknove - nie the rights to import (export) of the goods; is not a condition of import of the goods; is not a payment for fulfilment of actions by customs body. The customs duties represent a payment for goods release according to the customs procedure providing its payment as a condition of a premise of the goods under declared procedure in this connection modification of its definition containing in subparagraph 33 of point 1 of article 2 TK EAES was offered.

Except fiscal, the customs duties levied from cost executed outside of EAES of operations on repair and (or) maintenance service of the Courts of Admiralty, also should carry out regulating function which is shown in clearing of ship-owners of its payment at fulfilment of such operations outside of EAES if it has been caused by features of operation of the Courts of Admiralty [218].

It is established, that the existing format of legal regulation and practice of clearing of payment of the customs duties concerning the repairs executed abroad and (or) maintenance service provides, basically, realisation of fiscal function of the customs duties. But despite it, achievement of the purpose of development of ship-repair branch remains ineffective. It is obvious, that action of this measure does not promote development and branch of sea navigation, that, as a whole contradicts not only to fiscal interests of the state, but also the problems of the state economic policy reflected in the Sea doctrine of the Russian Federation.

1.3.

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A source: MASLY Andrey Igorevich. FINANCIALLY-LEGAL REGULATION of CLEARING of payment of the customs duties Concerning TEMPORARILY TAKEN out VEHICLES of the INTERNATIONAL TRANSPORTATION (ON the EXAMPLE of the RUSSIAN COURTS OF ADMIRALTY). The dissertation on competition of a scientific degree of the master of laws. Saratov -. 2018

More on topic clearing of payment of the customs duties concerning temporarily taken out Russian Courts of Admiralty as means of maintenance of realisation of functions of the customs duties:

  1. Chapter 3. Problems of realisation of the right to clearing of payment of the customs duties concerning temporarily taken out Russian Courts of Admiralty
  2. the Financially-legal nature of clearing of payment of the customs duties concerning temporarily taken out Russian Courts of Admiralty
  3. principles of clearing of payment of the customs duties concerning temporarily taken out Russian Courts of Admiralty
  4. Clearing of payment of the customs duties at fulfilment of planned operations on current (average) repair and (or) to maintenance service of temporarily taken out Russian Courts of Admiralty
  5. Requirement for fulfilment of operations on repair and (or) to maintenance service, as a condition of clearing of payment of the customs duties concerning temporarily taken out Russian Courts of Admiralty
  6. the operations necessary for maintenance of a vessel in a condition in which it was at date of export as a condition of clearing of payment of the customs duties concerning temporarily taken out Russian Courts of Admiralty
  7. Chapter 1. Theoretical and legislative bases finansovopravovogo regulations of clearing of payment of the customs duties concerning temporarily taken out Russian Courts of Admiralty
  8. Formation of financially-legal regulation of clearing of payment of the customs duties concerning the Russian Courts of Admiralty
  9. Chapter 2. Conditions of realisation of the right to clearing of payment of the customs duties in the relation it is temporary vyvezennyhrossijskih the Courts of Admiralty
  10. MASLY Andrey Igorevich. FINANCIALLY-LEGAL REGULATION of CLEARING of payment of the customs duties Concerning TEMPORARILY TAKEN out VEHICLES of the INTERNATIONAL TRANSPORTATION (ON the EXAMPLE of the RUSSIAN COURTS OF ADMIRALTY). The dissertation on competition of a scientific degree of the master of laws. Saratov -, 2018 2018
  11. clearing of payment of the customs duties at fulfilment of operations on current (average) repair and (or) to maintenance service by results of fault detection and survey of temporarily taken out sea vessel
  12. §3. Features of realisation of the criminal policy in sphere of the taxation and nalogovo-legal means of maintenance of discharge of duties on payment of taxes.
  13. § 2. Legal nature of the customs duties
  14. § 2. The Customs duties as the budgetary income
  15. § 1. Obligatory elements of legal structure of the customs duties
  16. the export customs duties on petroleum.
  17. 3.3. Nalogovo-legal and remedial means of maintenance of discharge of duties on payment of taxes.