<<
>>

custom charges: concept and the legal nature

In legal acts some definitions of concept "custom charges" as versions of customs payments contain. All of them are identical. According to item 1 of item 72 TK the HARDWARE custom charges represent the obligatory payments levied by customs bodies for fulfilment by them of actions, the goods connected with release, customs support of the goods, and for fulfilment of other actions established TK the HARDWARE and (or) the legislation of member states of the Customs union.

In item 1 of item 47 TK EAES position that custom charges represent the obligatory payments which collection is carried out for execution by customs bodies of the customs operations connected with release of the goods, customs support of vehicles, and also for fulfilment of other actions established TK EAES and (or) the legislation of member states on customs regulation is fixed.

Point 1 of item 123 of the Law on customs regulation specifies, that custom charges are the obligatory payments levied by customs bodies for fulfilment by them of actions, the goods connected with release, customs support of the goods, storage of the goods. The name of each gathering corresponds to actions of the customs bodies connected with customs operations, support or storage of the goods.

In spite of the fact that the legislator establishes a place of custom charges in system of customs payments, their kinds are listed, definition of their concept does not contain the signs characterising the given category in full. In this connection there is a requirement for scientific judgement of the financially-legal nature of custom charges as versions of gathering, their signs, functions and the analysis of system of legal regulation of the given kind operating in modern conditions

Payment.

Position of item 1 of item 47 TK EAES (the norm of item 1 of item 72 TK the HARDWARE is similar) supposes possibility of unlimited expansion of the list of custom charges at the expense of an establishment for fulfilment of other statutory actions. Certainly, it can be recognised by a legal regulation lack as can lead to unreasonable increase in their kinds.

With a view of unification and harmonisation of the customs legislation it is represented expedient not only to establish the exhaustive list of kinds of custom charges, but also to fix it in item 47 TK EAES. Thus the order of their calculation, payment and collection can be regulated the legislation of member states EAES.

Studying the financially-legal nature of custom charges, it is necessary to address to the Russian legislation. Legislative division of incomes of budgetary system on tax and not tax became an occasion to discussion about presence of the gathering with the same name [135]. At the same time in one act division into tax and not tax gathering directly is not specified. In the legal literature it is noticed, that «absence of a strict regulation of gathering at legislative level creates many problems in pravoprimenitelnoj to practice at definition of a circle of the rules of law regulating collection of this or that payment» [136]. The unique legislatively fixed concept of gathering contains in item 2 of item 8 NK the Russian Federation.

However there are no bases to approve, that the given concept extends on all gathering having roughly similar lines. In collective character of concept "gathering" specifies and Of this year Pepeljaev: «It covers as actually gathering (payments for possession the special right), and duties.

This results from the fact that in the same value the concept« gathering »is used in item 57 of the Constitution of the Russian Federation» [137]. A.A.Jalbulganov notices, that any payment, should be called as gathering in that sense in which it is used in NK the Russian Federation which payment is obligatory owing to the law [138 [139].

Within the limits of customs legal relations which arise at levy for moving of the goods through customs border EAES, the concepts established by the customs legislation of the Russian Federation (item 4 of item 11 NK the Russian Federation) are applied. Hence, the concept of gathering given by tax laws, it is impossible to carry to definition "custom charges" to the full. In this case it is possible to talk only about consideration of the general signs with revealing of the features inherent in custom charges.

Taking into account the financial right stated in a science a question on concept and

-e

Gathering signs rises often enough. Of this year Pepeljaev as gathering suggests to understand «the compulsory payment which entering is an access condition to the right, generating the counter obligation of the state body to the payer and comparable to volume and character of this obligation» [140]. According to A.V.Bryzgalina and I.I.Kucherova, gathering is a payment for participation, using or realisation of any activity [141]. The given definitions as a whole reflect essence of investigated payments, but deserve more detailed analysis with reference to definition of custom charges.

Some scientists consider custom charges in quality vozmezdnogo payment for the services rendered by officials of customs bodies [142]. At the same time other authors notice, that custom charges are not a payment for public services customs

L

Bodies, and represent special institute parafiskaliteta. In the relations connected with customs operations, support of the goods or storage of the goods in territories of warehouses of customs bodies which are intended for time storage (further - SVH customs bodies), there are no such signs of civil matter, as equality of the parties, the arrangement on the price for services. The person moving the goods through customs border EAES, does not agree with officials of customs bodies about cost of their actions. Thus, it is possible to come to conclusion, that officials of customs body render not services, and realise the powers.

Before to make own definition "custom charges", we will consider the signs of custom charges inherent and other gathering, regulated by the Russian legislation.

1. Complex character of legal regulation. Regulation of relations in sphere of an establishment, introduction and collection of gathering is reflected in standard legal acts of various branches of the legislation. Despite nadnatsionalnoe an establishment of custom charges in connection with functioning EAES, they are regulated by acts of member states EAES (item 72 TK the HARDWARE, item 46 TK EAES). The states entering in EAES, independently establish kinds and an order of collection of these payments. In the Russian Federation the concept, kinds, an order of payment and collection of custom charges are based on norms of the Law on customs regulation, and their rates are defined by the Governmental order of the Russian Federation. Feature of a legal regulation of custom charges is fastening of their key parametres at national level. Thus, as not tax income custom charges are fixed BK the Russian Federation, and as a kind of customs payments - TK the HARDWARE. The order of taxation by them in the Russian Federation is defined by the Law on customs regulation and the certificates accepted according to it. Integrated approach of legal regulation is expressed not only in a combination of norms of the budgetary and customs legislation, but also in synthesis of the legal statuses fixed at level EAES and the Russian Federation.

2. A binding character of payment of gathering. The given sign follows from the maintenance of norm of item 57 of the Constitution of the Russian Federation and is provided with compulsory force of the state. In turn, gathering becomes obligatory only after the reference of the potential payer to the certain authorised subject on fulfilment of legally significant actions [143]. In the given aspect it is a question not of a duty of the possible payer, and about competence on gathering payment. But to argue only on the right to gathering payment it is impossible, as the legislation establishes cases when it is necessary to pay gathering necessarily (for example, a State Tax at reception of the passport of the citizen of the Russian Federation). In this connection it is logical to speak about the voluntary-compulsory legal nature of gathering. N.I.Zemljansky notices, that, as well as payers of custom charges, customs bodies become participants of relations not on the will, and owing to the imperative instruction of the law [144]. It is represented, that if the payer wishes, that concerning it actions on fulfilment of customs operations, support or storage of the goods the given duty at it arises have been made. If he does not address in customs bodies is not obliged to pay gathering. Thus, the sign of compulsion of payment of custom charges is expressed as a condition for fulfilment by officials of customs body of certain actions concerning the payer.

Legally significant actions are expression of legal activity which is carried out in the course of the behaviour settled by the right of strong-willed behaviour of subjects, attracting legal consequence [145]. They are always connected with approach of the consequences shown in achievement of a certain condition of public relations, providing satisfaction certain public or the private interest. Result of legally significant actions is granting to the citizen only the adjective law on reception of any real service [146]. The given actions make the state bodies which, including, customs bodies are. Subjects of foreign trade activities address to the authorised bodies in connection with realisation concerning them the allowing actions caused not by a personal interest of these subjects, and execution of obligations, that is are the forced actions. The person, in the course of moving of the goods through customs border EAES, is forced to pay custom charges for customs operations, otherwise cannot transport them. If the state assigns on the persons moving the goods, duties without whom there will be no legal relation it is possible to talk about imposing of the state services. In the scientific literature the concept of the state service is equated to public service.

Feature of rendering of the public service connected by realisation of legally significant actions for which fulfilment collection of custom charges is established, the fact of participation in these relations of the special subject - customs bodies is. A.B.Novikov specifies, that FTS to Russia renders the state services in the field of foreign trade, namely the service which are carried out in the course of customs registration, at storage, by support of the goods within territory of the Russian Federation and a number of other services. Customs services are directed on realisation of the state functions and satisfaction

-e

Requirements of participants of foreign trade activities. In case of accessory SVH they have the right to render to customs bodies services in storage of the goods. At the same time mutual relations of customs bodies with the persons placing the goods on such warehouses, are regulated both customs, and the civil legislation. The given services are given on the basis of the public contract, and refusal of customs body of making contract in the presence of possibility to carry out storage is not admissible. Services in storage of the goods on SVH customs bodies are given on a paid basis - the custom charges for storage are levied. [147 [148]

Thus, according to the specified sign the services rendered by customs bodies on fulfilment of customs operations, to storage and support of the goods, should be carried to a category state услуг1. Granting of these services is connected with performance by the persons who have entered in is customs-legal relations, requirements of the customs legislation. For example, customs services in storage of the goods on SVH customs bodies can be carried to the category of the "forced" services as storage of the goods on SVH before their release is obligatory customs operation. Hence, concerning the given services the state is obliged to provide their granting, otherwise it is impossible to fulfil the requirement of the customs legislation. When paid services there where execution of functions by officials of the state bodies is required are entered, it is necessary to talk about double financing same

L

Activity or about a way of additional collecting of means. In the foreign literature it is noticed, that the state bodies should render paid services only on that area where them it is impossible or

-e

Is inexpedient to transfer to subjects of private business. Though custom charges are not service cost, however are levied in

4

Communications with service rendering.

3. Monetary character of custom charges. Their payment in the natural form is excluded. Gathering always represents alienation of means in the monetary form in currency of the state which are the addressee of the given income. So, custom charges are paid in currency Russian [149 [150] [151] [152]

Federations, concentrating on the account of Federal exchequer (item 3 of item 128 of the Law on customs regulation). According to the Russian legislation custom charges are paid in the cash and non-cash monetary form by means of electronic terminals, cash dispenses by means of custom cards [153 [154] [155]. Recently interaction of customs bodies with participants of foreign trade activities within the limits of work of site FTS of Russia considerably became more active, that, in turn, proves to be true prompt development of "electronic customs». So, for the purpose of reduction time and business material inputs on site FTS of Russia since December, 2015 «the Personal office of the participant of foreign trade activities», including service "Personal account" through which payment of customs payments is possible, including custom charges operates. In September, 2017 registration of the 124-thousand user of data кабинета2 has taken place.

4. Vozmezdnyj character of gathering. At collection of gathering the state as the obligatory subject of legal relations should render corresponding actions in favour of the payer, for example, to render any services. And the payer has the right to demand from the state bodies of fulfilment of corresponding actions to own advantage. In it the interrelation of the rights and duties of subjects of legal relations in this connection the Constitutional Court of the Russian Federation has defined the given payments as индивидуальновозмездные1 is shown. Thus, according to some scientists, the given sign is a discriminating sign of the gathering, allowing to distinguish gathering from

L

The tax. Gathering unlike the tax as marks A.N.Kozyrin, is levied only from persons who enter relations with the state concerning reception defined услуг3. According to other point of view, at gathering payment it is difficult to track a sign vozmezdnosti for gathering payment represents one of conditions of fulfilment of actions concerning the payer [156 [157]. An unconditional duty of the authorised person to make legally significant actions it does not attract [158].

Custom charges nevertheless are vozmezdnym payment, as assume obligatory rendering to the payer of gathering of concrete legally significant actions (fulfilment of customs operations, customs support, storage of the goods) after its payment.

5. A special-purpose character of collection of custom charges. The special-purpose designation of custom charges is expressed in compensation of expenses of the customs bodies caused by carrying out of actions on fulfilment of customs operations, to customs support and storage of the goods.

The target orientation of collection of gathering is marked by many scientists [159 [160] [161] [162]. In opinion Of this year Pepeljaeva and I.I.Kucherova, the purpose of collection of gathering consists in indemnification to the state or establishment of expenses which arise in the course of rendering of corresponding services to physical persons and the organisations, in connection with their activity. The similar point of view is supported by the Constitutional Court of the Russian Federation, specifying that gathering «are intended for compensation of corresponding expenses and

-e

Additional expenses of public authority ».

Noted purpose connected with indemnification of the State expenditure on granting to the payer of gathering of certain state services, not always proves to be true. In particular, the specified purpose is not inherent in some gathering, for example, for using objects of fauna and for using objects of water biological resources. It is represented, that an overall objective of their collection is fiscal, and the gathering sum obviously not

4

Compensates the state expenses.

Arguing on a target orientation of collection of custom charges, it is possible to believe, that the given payment for reception of legally significant actions connected with fulfilment of customs operations, by support or storage of the goods, and also as indemnification of expenses of customs bodies on fulfilment of these actions is paid. Custom charges appointment consists in a covering of the expenses arising at fulfilment of customs operations, customs support or at storage of the goods that marks also M.V.Kalinin [163].

Thus, for the payer of custom charges the purpose is reception of concrete service, and for the state - money resources for indemnification of expenses for granting of certain legally significant actions.

6. Likelihood character of payment and gathering collection. Discriminating feature of custom charges is the irregularity of their payment. The payer pays gathering only in need of the introduction into customs legal relation, unlike taxes where the tax period is established. Thus, payment of custom charges is carried out exclusively as required fulfilment of actions in favour of payers of gathering.

So, the legal nature of custom charges is reflected in their basic signs: complex character of legal regulation; a payment binding character; monetary character of payment; vozmezdnyj character; a special-purpose character; likelihood character.

Having defined characteristic lines of custom charges, it is necessary to pay attention to some basic positions having obligatory character, special political and moral value. They are fixed in rules of law or deduced logically from their set.

Principles of taxation by custom charges - rules by which the legislator should be guided first of all at an establishment of obligatory payments, and then their payers. It is necessary to understand, that an establishment of principles significantly not only in theoretical, but also practical aspect as as specifies D.A.Smirnov, they are used in the course of formation of optimum conditions for their application, in definition of ways of use in practice, and also within the limits of the permission of concrete legal affairs [164 [165] [166].

In a science of the customs right the general principles of customs taxation are developed. Them concern: a generality principle; a principle of a legislative establishment; the unanimity of system of customs payments; a principle of a combination of customs and tax legal bases; a principle of equality; a responsibility principle; a principle of harmony of customs taxation; a principle of freedom of choice of payers

L

Customs payments. They are applied, as a whole, and to custom charges, however it is necessary to stop in more details on such special principles, as a principle of the coordination private both public interests and an equivalence principle at taxation by custom charges.

Representatives of modern jurisprudence often enough pay attention to observance of a principle of the coordination private and

-e

Public interests in the course of collection of obligatory payments. In numerous legal researches questions of interpretation of the specified concepts, and also the relationships of cause and effect arising between given kinds of interests are taken up. The public interest maintenance includes the interest of a social generality recognised as the state and guaranteed by the right, for satisfaction zhizneobespechennosti societies [167 [168] [169] [170].

In the private interest, on the contrary, there is no will of the state as sovereign political power. Under A.V.Dyomin's statement, the private interest fixed in the rule of law, is not that other, as

-e

Interest of the subject in participation in this legal relation. The coordination public and private interests in legal regulation of financial relations is expressed in two interconnected aspects: preservation of a public priority, but taking into account private interests; interosculation and interaction public and

4

Private-law legal means.

Necessity of the coordination private and the public interest characterises modern interaction of the person, a society and the state. Their optimum parity is possible at respect of interests each other, at their mutual responsibility and only in the state with the stable economy generated by political system. In an ideal internal mechanisms of a democratic lawful state should transfer interests of its citizens on legal soil, thereby transforming them to public interests [171].

Public and private interests are shown in various legal relations, and customs legal relations are not an exception. The coordination public and private interests - a problem developed by scientists throughout all formation of customs legal relations. The harmonious balance public and private interests allows to estimate and understand correctly the primary goals and the general features of a modern legal mechanism of customs taxation.

Customs bodies are aimed at the decision of a problem of formation of a profitable part of the federal budget whereas private subjects are interested in minimisation of costs, decrease in weight of tax burden. In this connection the special attention is deserved by the analysis of studying of a principle of the coordination public and the private interests, investigated as the basic beginnings in the customs right [172].

Active integration of the Russian Federation in foreign trade world processes causes necessity of achievement of balance between interests of the state and payers of customs payments. Basic short stories TK EAES are connected with protection of private interests of participants of foreign trade activities thanks to simplification of customs administration.

In taxation by custom charges it is necessary to carry to public interests: indemnification of the expenses arising in the course of realisation by officials of customs bodies of customs operations, customs support or at storage of the goods on SVH customs bodies; formation of the federal budget at the expense of receipt of the sums from payment of custom charges. Private interests are expressed in the following: simplification of customs declaring of the goods by granting to customs bodies of necessary documents in electronic form; decrease in material inputs at payment of custom charges; reception of the privileges expressed in full or partial clearing of payment of custom charges. Thus, the principle of the coordination private and public interests becomes main principle at collection of custom charges on which relations between customs bodies and payers of custom charges are under construction.

The equivalence principle is expressed in conformity of the size of custom charges to the sum of expenses of customs bodies on fulfilment of customs operations, customs support and storage of the goods. Under D.V.Vinnitsa's fair statement, feature of payment of gathering is definition of its size on the basis of equivalence to the suffered expenses the authorised subjects at realisation of certain actions by them which should be comparable [173]. The sizes of gathering frequently are not equivalent costs of legally significant actions carried out by the state bodies, as in most cases state expenses much more above the size of gathering [174].

For maintenance of the purpose of proportional collection of custom charges equalising of the size of payment and the suffered expenses customs bodies is necessary. As mark N.I.Zemljansky and D.A.Shubin, the compensatory sign of custom charges finds expression in the reimbursement of the state for realisation legally significant

^ 3

Actions concerning the payer.

At an establishment of the size of gathering, including customs, certainly, it is possible to recognise observance of a principle of equivalence as an ideal situation. Actually specified principle is observed now not to the full [175]. As an example it is necessary to result their such kind, as custom charges for customs operations. The size of their rates depends on customs cost of the moved goods while the work spent by officials of customs bodies, does not depend on the used parametre. Though some scientists recognise an aspiration inconsistency to provide strict equivalence of payment of similar public services from the state [176], it is impossible to refuse

~ ~ 3

From the answering constitutional purpose.

Thus, in the Russian Federation at an establishment of the size of custom charges the equivalence principle that testifies to a prevalence of their fiscal function is not observed.

Classification of custom charges can be spent on two bases:

1. On character of a duty:

- The unconditional: custom charges for customs operations;

- Appointed at the initiative of customs body: custom charges for customs support; custom charges for storage of the goods on SVH customs bodies;

- Appointed at the initiative of the customs applicant: custom charges for customs support.

2. On compulsion degree:

- The obligatory: custom charges for customs operations and custom charges for customs support;

- The additional: custom charges for storage of the goods on SVH customs bodies.

Thus, the analysis of conceptual bases of financially-legal regulation of custom charges, has allowed to formulate two definitions, one of which is applicable for member states EAES and another can be fixed in TK EAES, and - for the Russian Federation with its possible inclusion in norms of the Law on customs regulation.

Custom charges are obligatory payments, a special-purpose character, established by certificates of the national legislation according to rules of law EAES which payment is one of fulfilment conditions customs bodies concerning payers of gathering of the actions provided by the legislation.

Custom charges in the Russian Federation are the obligatory not tax payments established by positions federal

Legislations, according to rules of law EAES which payment is one of fulfilment conditions customs bodies concerning payers of gathering of the actions connected with realisation of customs operations, customs support and storage of the goods.

Addressing to a legal design of custom charges, it is rational to talk about their elements. According to item 6 of item 3 NK the Russian Federation the tax will be considered established lawfully only when all its elements will be legislatively fixed. Concerning obligatory payments the legislator specifies in compulsion of the formulation of certificates so that to everyone it was clear, for what taxes (gathering, insurance premium payments), in what terms and in what order it should pay. A little advancing sequence of a statement, it is necessary to notice, that though these elements and have similar to elements of taxes functional mission, nevertheless, some essential features regarding the structure, caused by a specific legal design of payments of the given kind are inherent in them.

Separate experts directly notice, that «not all elements necessary for calculation and payment of the tax, can appear claimed at an establishment of concrete gathering» [177]. It is caused by that the legal design of gathering is to a certain extent truncated as their payment usually contacts fulfilment in interests of the payer of certain legally significant actions.

The customs legislation does not contain the accurate list of elements of taxation by custom charges that represents its discriminating feature from the legislation on taxes and tax collections. The establishment in acts of all elements of taxation by obligatory payments is a public duty of the state, and absence is caused by insufficient understanding of essence of collection of such payments [178].

The Russian Federations established in item 17 NK taxation elements (except the tax period) are inherent also in custom charges. Despite lacking a concrete regulation of elements of taxation by custom charges, they can be established proceeding from the maintenance of norms of the Law on customs regulation: an order of calculation (item 125), an order and payment terms (item 127, 128), rates (item 130), and also other conditions of collection. At the same time the federal legislation establishes the certain circle of persons, custom charges responsible for payment.

It is represented, that one of elements of taxation by custom charges should consider object. Article 123 of the Law about customs regulation defines kinds of customs payments which give the basis to believe, that actions of the customs bodies which are carried out in the course of customs operations, at customs support or storage of the goods, it is possible to present as object of taxation.

The analysis of the normative acts regulating collection of custom charges, allows to define base for their calculation. For custom charges for customs operations by such base customs cost will be; at calculation of custom charges for customs support start with distance and a vehicle kind; as base of the custom charges levied for storage of the goods on SVH of customs bodies the goods weight serves in kgs.

Definition of the rate of custom charges depends on base. The governmental order of the Russian Federation from December, 28th, 2004 № 863 «About rates of custom charges for customs operations» [179 [180] [181] (further - the Governmental order of the Russian Federation № 863) defines custom charges rates for customs operations, and the size of rates for customs support and storage of the goods is established by the Law on customs regulation. In one of the Definitions the Constitutional Court of the Russian Federation has confirmed the right of the Government of the Russian Federation to define the sizes of customs payments. Such possibility, according to K.A.Sasova, speaks necessity of operative and flexible realisation of a customs-tariff policy

-e

The states. The establishment [182] is reflected by the higher court of justice of legitimacy of an establishment of the size of rates of separate kinds of custom charges in subordinate legislation level further at the permission of lawsuits.

The order of calculation of custom charges which is made exclusively in currency of the Russian Federation, is provided Law item 125

0 customs regulation. Under the general rule the payer independently estimates custom charges, not shifting this duty on customs bodies and other persons. In case of default by the payer of the given obligation customs bodies independently estimate the given payments and expose the requirement about their payment. Besides, in case of placing on storage of the goods on SVH customs bodies the duty on calculation of custom charges is assigned also to customs bodies. Correctness of calculation of custom charges provides completeness of receipts in the federal budget. Expert estimations on loss of the budget from short-reception of customs payments by various calculations (including custom charges) total from 600 mlrd to 2,5 trln rbl. [183]

Duty putting on on calculation of custom charges on officials of customs bodies will allow to avoid the errors connected with definition of customs cost of the goods, at definition of their sizes, to lower number of cases of abusing from payers, and also will promote an effective control behind their payment.

The great value for the payer constitutes term of payment of custom charges which is understood as time period during which the interested person undertakes to pay the established sum [184]. Payment of custom charges should be carried out till the fulfilment moment customs bodies of legally significant actions. It is necessary to notice, that preliminary character of payment is inherent in the custom charges paid for realisation of customs support.

In Order FTS of Russia from February, 25th, 2011 № 397 «About the statement of the Order of customs support of vehicles of the international transportation transporting the goods» [185] (further - Order FTS of Russia № 397) is regulated a procedure of customs support. At decision-making on the organisation of customs support duties of the official include the immediate notice of the customs applicant (carrier) on the positive decision on the organisation of customs support and necessity of payment of custom charges for customs support.

Custom charges should be paid for storage only when the goods are located on time storages on a warehouse belonging to customs body. Custom charges are transferred into account Federal exchequer. The features which are available as payment of custom charges for the goods, intended for a private use of physical persons, are fixed in legislations (item 128 of the Law on customs regulation). So, it gives possibility of payment of such gathering in cash desk of customs body. The great value is given to definition of the exact moment of fulfilment of the specified action after which termination money resources are considered already as federal incomes of the budget.

Customs legal relations include interaction of two parties, as one of which the public authority necessarily acts. According to M.V.Karasevoj, the state interest in sphere of realisation of financial security is reduced to an establishment of rigid borders of behaviour for subjects of financial legal relations. So, one subject oblige to pay custom charges (payers), and (customs bodies) - to demand another in an imperative order of execution of the given obligation [186].

Briefing the above-stated, it is possible to draw a conclusion, that payers of custom charges are not included into the list of elements of taxation and under I.S.Nabirushkinoj's fair statement take the isolated place in system of elements of taxation of the specified payments [187]. At the same time definition of the person which duties include their payment [188] depends on a kind of custom charges.

Responsible persons for payment of custom charges for customs operations are customs applicants and customs representatives; the persons who have received the permission to internal transit, are obliged to make payment of custom charges for customs support; the persons who have placed the goods on storage in SVH of custom charges, are obliged to pay custom charges for storage of the goods.

It is necessary to notice, that unlike regularly paid taxes customs taxation does not provide an establishment of the concrete period in this connection can be made and unitary. In O.J.Bakaevoj's fair opinion, the legislator does not establish the given element as the sign is inherent in custom charges

-e

Irregularities. The duty on their payment as it has been considered earlier, arises only at realisation by private subjects of operations on import or export of the goods or the actions connected with them.

It is necessary to underline, that a facultative (additional) element of taxation by custom charges are privileges on their payment. First of all, practical value of privileges important for payers of custom charges. Granting of privileges on payment of custom charges shows aspiration of the state to achievement of optimum balance between public and private interests on which efficiency of customs-legal regulation as a whole depends. According to I.V.

Rukavishnikovoj, efficiency of legal regulation directly depends on the coordination of public interests with real guarantees of realisation of the rights and personal freedoms [189]. In modern conditions priority directions of activity of customs bodies consist in assistance to foreign trade development, therefore public authorities should consider presence the private-law has begun, pursuing the public aims [190 [191].

I.S.Kochubey defines as a legal privilege in sphere of customs business understands «the lawful advantage (simplification) given to the subject owing to features of its legal status, character and (or) a kind of the Russian Federations of the goods moved through customs border and other factors, aimed at simplification of passage by it of customs procedures». The reason of introduction of customs privileges is assistance to foreign trade development, aiming of public authority at activization of the international trade relations.

Some scientists notice, that at customs taxation privileges «for influence on economy development, its structural reorganisation, for creation of an economic and social infrastructure, defensive building, softening of social intensity and struggle against inflation» [192] are widely used, and also can induce the payer to fulfilment of actions or realisation, the functions representing the state or public interest [193].

In the field of collection of custom charges privileges only concerning concrete kinds of subjects and in the presence of the bases provided by item 131 of the Law on customs regulation are established. In the Russian legislation application of privileges on payment of custom charges consists in full or partial clearing of their payment. The total sum of privileges, clearings of payment of the customs payments given by customs bodies in 2016, has constituted 370 mlrd rbl., that on 21 % it is less, than in 2015 (470 mlrd rbl.) [194].

From the stated follows, that calculation of custom charges represents actions of the payer or customs body which are directed on calculation of the sum of payment of custom charges for realisation customs operations, for customs support or for storage of the goods on SVH customs bodies taking into account specificity of such actions.

The analysed elements of taxation by custom charges are structurally necessary and obligatory for fastening in the rules of law regulating customs relations that corresponds to the constitutional position of item 57 of the Constitution of the Russian Federation. Though the normative acts devoted to taxation by custom charges, do not contain the concrete list of elements of their legal structure, however define their essence. Such legislative blank allows to treat the maintenance of the given elements that is negatively reflected on pravoprimenitelnoj to practice on - a miscellaneous.

Proceeding from the above-stated, it is expedient to add item 124 of the Law on customs regulation by point 3 in which to establish elements of taxation by custom charges. Besides, it is offered to state article name as follows «Payers of custom charges and elements of taxation by custom charges».

<< | >>
A source: USTINOVA Anastas Vasilevna. CUSTOM CHARGES In SYSTEM of INCOMES of BUDGETARY SYSTEM of the Russian Federation: FINANCIALLY-LEGAL REGULATION. The DISSERTATION on competition of a scientific degree of the master of laws. Saratov -. 2017

More on topic custom charges: concept and the legal nature:

  1. 2.1. Custom charges for fulfilment of the actions connected with release of the goods (custom charges for customs operations): features of financially-legal regulation
  2. features of financially-legal regulation of an order of calculation, payment and collection of custom charges for storage
  3. Chapter 1. Theoretical bases of financially-legal regulation of custom charges under the legislation of the Russian Federation
  4. Chapter 2. Features of financially-legal regulation of an order of calculation, payment and collection of custom charges
  5. Custom charges as not tax income of the federal budget
  6. custom charges in system of customs payments
  7. 2.2. Actual aspects of an order of calculation, payment and collection of custom charges for customs support
  8. USTINOVA Anastas Vasilevna. CUSTOM CHARGES In SYSTEM of INCOMES of BUDGETARY SYSTEM of the Russian Federation: FINANCIALLY-LEGAL REGULATION. The DISSERTATION on competition of a scientific degree of the master of laws. Saratov -, 2017 2017
  9. § 1. Concept of custom duties and customs-tariff regulation
  10. § 2. Concept, legal nature and contract functions
  11. 1.1. Concept, the legal nature and essence of family-legal responsibility
  12. § 1.3. Concept and the legal nature of investment disputes
  13. § 2. The legal nature and concept of the right to the general land tenure
  14. Concept and the legal nature of the will
  15. §1. Concept and the is social-legal nature of institute of legal encouragement
  16. Concept and legal nature of forced measures of medical character
  17. § 1. Concept and the legal nature of corporate information legal relations of activity of economic societies
  18. Concept and the legal nature of arbitration agreements
  19. 1.1. Concept and the legal nature of paid educational services