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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

Besides the legal blanks considered in the previous chapter containing in existing conditions of realisation of subparagraph 1 of point 1 of article 277 TK EAES now at legislative level the question on is not resolved, whether the privilege established by the specified rule of law to the regulated (planned) operations on current (average) repair comes under to application and (or) to maintenance service of a vehicle of the international transportation, the requirement for which performance has arisen after customs declaring of their time export or after the beginning of their use in the international transportation.

The judicial-arbitration practice which has developed now regarding taxation by the customs duties of such operations is unequivocal: they do not come within the purview of subparagraph 1 of point 1 of article 347 TK the HARDWARE and come under to taxation in full объёме1.

For example, the Arbitration court of Primorye Territory in the decision on business № А51-233 30/20 1 5 [458] [459] has formulated the given conclusion as follows: źConsidering, that carrying out of planned repair work outside of the customs territory of the Customs union concerning the Courts of Admiralty registered in territory of the Customs union, does not get under clearing of payment of the customs duties, taxes within the limits of point 1 of article 347 TK the HARDWARE irrespective of a kind of the spent repair operations (major repairs, according to plan - precautionary repair, intertrip repair, intertrip maintenance service etc.) The conclusion of customs body that spent concerning a vessel t/h "Rajz" repair work is not among the operations provided by point 1 of article 347 TK the HARDWARE as the requirement for their carrying out has arisen not during vessel use in the international transportation, admits court lawful ╗. The given position is supported by arbitration courts Distant Востока1 and other regions of Russia [460 [461], and also customs bodies that follows from a descriptive part of the accepted judicial certificates [462] and sessions of the Advisory councils on work with participants of foreign trade activities [463].

The examples resulted above visually show that fact, that arbitration courts, having estimated affairs of the proof available in materials and arguments of ship-owners, established, that actually operations concerning the Courts of Admiralty were really carried out for restoration and maintenance of tehniko-operational characteristics of a vessel within corresponding by the established Register (that as a whole corresponds to features of operation of the Courts of Admiralty), but at the same time courts of justice noticed, that planned, procedural, scheduled preventive (and others) repairs do not fall under the specified norm that excludes clearing of ship-owners of payment of the customs duties.

Thus, considering, that by the moment of coming into force TK EAES the given question has not been settled at legislative level, now there is a risk of that judiciary practice will be generated similarly and at application of subparagraph 1 of point 1 of article 277 TK EAES, that, in turn, will entail unreasonable infringement of interests of ship-owners on realisation of the financially-legal privilege provided by this subparagraph as the regulated (planned) operations concerning the Courts of Admiralty are usual for the given type of transport.

Confirming to the given position it is necessary to notice, that neither vessels, nor customs bodies it has not been considered, that according to point 2.3.2 requirements. RD 31 maintenance service STSiK is carried out on scheduled preventive system on the basis of plans-schedules of maintenance service which are developed and affirm the ship-owner. In plans-schedules are reflected: name STSiK, volumes, performance terms, and also other information necessary for carrying out of maintenance service. Besides it, in explanatories to the term źsystem of maintenance service and repair of vessels╗ [464] it is directly specified, that maintenance service and repairs of certain kinds are carried out with the set sequence and periodicity, including preparation for them.

Many Russian lawyers also specified, that operation of the Courts of Admiralty assumes constant work (operations) on repair and maintenance service of various character, including works on request of Регистра1, however the specified arguments and remained at level of scientific discussions and have not been realised in the form of the legislative leadership.

As to repairs of the Courts of Admiralty point 2.4.2 RD 31 establishes following two their kinds: planned (providing performance of works according to the plan of repair of the vessels, approved by the ship-owner) and emergency (performance of the works connected with elimination of damages STSiK, received at emergency cases).

Thus according to point 2.3.6 of GOST 18322-2016 planned repair is understood as repair, statement on which is planned according to documentation requirements.

Definition of the regulated repair contains in point 2.3.10 of GOST 18322-2016 is the planned repair which is carried out with periodicity and in volume, established in the documentation, irrespective of a technical condition of object at the moment of the repair beginning.

Periodic maintenance service [465 [466] is the planned maintenance service which is carried out through values established in the documentation of an operating time or intervals of time.

Besides, according to points 2.2.9; 2.2.12; 2.2.17 GOST 18322-2016 among a significant amount of categories of maintenance, for the present research are represented by the most important the following:

1. Planned - the maintenance service provided in the documentation, carried out under the established schedule.

2. Regulated - the planned maintenance service which is carried out with periodicity established in the documentation irrespective of a condition of object at the moment of the beginning of maintenance service.

3. Maintenance service with the periodic control - the maintenance service which is carried out at the control of a technical condition of object in volume and with periodicity, established in documentation, thus volume of other operations is defined by a technical condition of object at the moment of the maintenance service beginning.

It is necessary to focus especially attention that owing to point 1.2.1 RD of 31 positions of the specified document extend on the enterprises and the organisations of a marine sea fleet of the Russian Federation irrespective of patterns of ownership, on sea vessels which float under the National flag of Russia and the Russian Federations, and also on ship-owners of these vessels are registered in one of registers of vessels of sea trading ports of the Russian Federation according to requirements KTM.

According to letter FTS of Russia from February, 11th, 2013 № 04 67/053341 customs bodies always were guided by positions gostov at differentiation of operations on repair and maintenance service of the Courts of Admiralty.

Besides it, according to point 1.2 RD № 31.20.50-87"Complex system of maintenance service and repair of vessels. The basic management╗ [467 [468] (further - RD 31) integrated approach of system establishes application of two principal views of maintenance service and repair of vessels, STSiK (or their elements):

1. On a condition - are applied for STSiK which condition can be defined without dismantling by the mastered methods and diagnostics tools and not destroying control.

2. Under the schedule - are applied for STSiK which condition cannot be defined without dismantling or which dismantling is obligatory at survey by the Register.

It is obvious, that the regulated (planned) current (average) repair and (or) maintenance service should be carried out not only irrespective of will and desire of the ship-owner, but also in some cases irrespective of a technical condition of the element of a vessel at the moment of the beginning remon - that/maintenance service, that is it is direct at occurrence of requirement for them which is defined proceeding from the dates/periods/terms/results of an operating time specified in plans-schedules and other similar documentation. Besides, the given circumstances objectively specify that the cores operations carried out concerning a vessel (especially flowing (average) repair and (or) maintenance service) are planned.

Separately it is necessary to focus attention to that fact, that by point 2.1.1 RD 31 also it is established, that the basic planned documents are: the plan of repair of fleet, the maintenance service plan, the supply plan etc. the Plan-schedule is the basic ship's paper defining the control of a condition, planning and maintenance service and repair STSiK regulation in operation and thus reflects planning of modes (terms, the maintenance and volumes) maintenance service and repair of ship means and designs in operation as it is accepted under the schedule [469].

Is important also that according to point 2.1.1. RD 31.20.01-97 technical operation of vessels which are carried out by ship-owners, should include costs planning, means for maintenance service, repair and supply of vessels, time for a conclusion of vessels from operation for repair.

Hence, with the account developed at application of subparagraph 1 of point 1 of article 347 TK the judiciary practice HARDWARE, and also the approaches developed by arbitration courts, to customs bodies have enough to obtain on demand during carrying out of the customs control at the ship-owner plans-schedules of maintenance service of vessels, the plan of repair of fleet or the budget of incomes planned by the ship-owner and expenses on year (regarding the planned expenses on the maintenance and fleet service) in which current (average) repair and (or) vessel maintenance service (approved, as a rule, before a calendar year to which it will accustom has been executed) and it will be the independent basis for refusal to the ship-owner in realisation of the privilege provided by subparagraph 1 of point 1 of article 277 TK EAES.

Thus, actually, now the ship-owner is constrained by two standard requirements of the legislation, realisation of one of which excludes possibility of realisation of another. On the one hand, the legislation orders to ship-owners to plan repair and vessel maintenance service, and also expenses for their carrying out. With another, in case of realisation of such regulated (planned) operations abroad obliges to pay the customs duties from their cost, depriving of possibility to realise a statutory privilege.

Considering specificity of operation of the Courts of Admiralty and existing public duties of ship-owners (regarding planning of repair and the maintenance service of a vessel necessary for maintenance of safety of navigation, preservation of a human life on the sea, prevention of environmental contamination and safety of transported cargo), it is represented, that if after customs declaring of time export of vehicles or after the beginning of their use in the international transportation, proceeding from operational (plans-schedules of maintenance service, the plan of repair of fleet etc.) And other defining periodicity of work of the documentation, follows, that there has come term of performance by the ship-owner of the regulated (planned) current (average) repair and (or) maintenance service of those or other elements of a sea vessel necessity for such operations should be considered and admit quality of the arisen requirement which are coming within the purview of subparagraph 1 of point 1 of article 277 TK EAES and to be released from taxation by the customs duties.

On the other hand, for the purpose of observance of balance private and public interests if during customs inspection spent concerning the ship-owner it will be established, that term of performance of the regulated (planned) works with a vessel has come till the moment of customs declaring of its time export or prior to the beginning of its use in the international transportation such circumstances will be considered how applications of the specified privilege excluding possibility.

The given approach will allow to observe balance of interests of ship-owners which are obliged to execute requirements of the legislation and to spend concerning a vessel the regulated (planned) works, the requirement in which can arise after customs declaring of their time export or after the beginning of their use in the international transportation, and fiscal interests of the state - budget replenishment for the account of receipt of the customs duties from cost of operations, the requirement for which performance has arisen before listed above events, and also to stimulate ship-owners to perform such works on domestic shipyards, bringing the contribution to their development and maintenance of ship-repair branch of the Russian Federation.

As acknowledgement resulted above the point of view it is expedient to result letter SZTU № 06-04-23/11640ф in which the maintenance and periodicity of operations which come under to performance at carrying out of maintenance service of a vessel have been noticed, that ź, are regulated by manufacturer in the operational documentation╗, and on the basis of it corresponding conclusions to an example of service of the ship diesel engine have been formulated: źthe Maintenance manual of ship diesel engine DKRN-4 of the Russian manufacture regulates daily, monthly, annual maintenance service, maintenance service №№ 1, 2, 3, 4, 5, ТО-1, ТО-2 etc. Maintenance service of a ship diesel engine includes the control of a technical condition, clearing from zagrjaz -

neny, regulation of backlashes in interfaced details, their replacement with a view of the prevention inadmissible iznosov and breakages, elimination of arising damages and their consequences. All these operations are obligatory. Thus, in a finding of temporarily taken out vessel outside of the customs territory of Russia maintenance service of this or that kind ╗without fail should be spent.

On the basis of it SZTU the conclusion has been drawn that any operations regulated by the operational documentation (i.e. obligatory operations) on vessel maintenance service can be carried to the operations of the first kind specified in point 1 operating at that time of article 276 TK the Russian Federation (2003) that is why come under to clearing from oblozhenijami customs payments.

Thus, for the purpose of high-grade realisation of the rights of ship-owners regarding application of the privilege releasing them from payment of the customs duties concerning operations executed abroad with a vessel, the requirement in which has arisen after customs declaring of their time export or after the beginning of their use in the international transportation, Methodical recommendations about application of subparagraph 1 of point 1 of article 277 TK ЕАЭС1 of the following maintenance are developed: źExecuted outside of the customs territory of the Union concerning vehicles of the international transportation the regulated (planned) operations on maintenance service and (or) to current (average) repair (except for major repairs, modernisation), the requirement in which has arisen after customs declaring of their time export or after the beginning of their use in the international transportation, come under to clearing of payment of the customs duties according to subparagraph 1 of point 1 of article 277 TK EAES.

Listed above regulated (planned) operations it is necessary to understand approach of term of performance of such operations established technical, operational and as occurrence of requirement for fulfilment

Other documentation defining periodicity of their carrying out after customs declaring of time export of vehicles or after the beginning of their use in the international transportation.

The privilege provided by the specified rule of law, does not extend on the regulated (planned) operations executed concerning a vessel, the requirement in which has arisen before listed above circumstances ╗.

3.2.

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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

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