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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

As one of kinds of custom charges the legislator has fixed custom charges for fulfilment of the actions connected with release of the goods (custom charges for customs operations). Before Customs union formation in the legislation of the Russian Federation regulating questions, connected with customs sphere, this gathering was called as custom charges for registration of the goods (item 357.1 TK the Russian Federation).

Nevertheless, a definition of concept of customs registration in the customs legislation was absent, that has led to sharp scientific polemic.

So, a number of scientists stand on a position of understanding of customs registration as sets of customs operations which are made «by persons and customs bodies concerning the goods and the vehicles moved through customs border» [195], or «set of all customs operations and customs procedures concerning the goods during the period their finding under the customs control, till the moment of acquisition by them of the invariable status dl the customs purposes» [196], or «actions of officials of the customs bodies, directed on maintenance of observance of the current legislation and the established order of moving of the goods and vehicles through customs border, including observance of measures tariff and not tariff

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Regulations », or« established by norms of the customs legislation an order of fulfilment of customs operations (customs formalities) at moving of the goods and vehicles through customs border of the Russian Federation »[197].

Despite lacking in right EAES of concept of customs registration, it is possible to assume, that it includes customs operations which are carried out by officials of customs bodies, and also the persons moving the goods through customs border EAES.

Owing to existence of various methods and approaches to concept definition «customs registration» with acceptance TK the HARDWARE the term has been excluded from the customs legislation, and instead of it the term «customs operations» now is used. However the similar situation «customs registration» occurs to indistinct understanding of the term and in understanding of essence of the term «customs operations». In many respects such position speaks that «terms used in the customs legislation cannot be an example of exact coincidence of the form and its real maintenance, practical semantic filling of the term» [198 [199].

Moreover, O.J.Bakayev specifies, that transformation of the conceptual device in the customs legislation has demanded entering of variety of changes into regulatory legal acts of various level. However even officials of customs bodies in their professional speech often use till now the term «customs registration». Discrepancy and ambiguity of definition of the term «customs operations» creates a barrier to appropriate realisation of the given institute and does not give exact explanation to payers of the maintenance of custom charges (for what particularly it should pay a certain sum of money) and consequently, leads to an indistinct establishment of the given element of taxation by custom charges. The ambiguity in the permission of the put questions raises level of mistrust of business community to customs bodies [200]. For explanation of an essence of collection of custom charges for customs operations it is represented expedient to consider legal structure of the given payment.

1. Payers of custom charges for customs operations. At payment of custom charges it is necessary to define the person, obliged to carry out their calculation, that is the payer. The payer does not concern elements of taxation by custom charges, and takes the isolated place and represents itself as the person realising elements of taxation. So, as payers of custom charges for customs operations the persons moving the goods through customs border EAES whom under the general rule customs applicants (subitem 6 of item 1 of item 4 TK the HARDWARE concern act; subitem 7 of item 1 of item 2 TK EAES), customs representatives (subitem 34 of item 1 of item 4 TK the HARDWARE; subitem 44 of item 1 of item 2 TK EAES), the authorised economic operator (item 38 TK the HARDWARE; item 430 TK EAES) and a customs carrier (item 18 TK the HARDWARE; item 406 TK EAES).

Defining the status of the payer of custom charges for customs operations, it is necessary to notice, that such person can be not only the subject having the right of the property on the moved goods through customs border EAES, but also other participant of customs legal relations (the customs representative) if it is authorised on payment. As custom charges urged to compensate expenses for actions of officials of customs bodies has no value the name of the subject spending such payment. Thus the person who has paid custom charges, by customs body it will be recognised as the payer.

2. Object of taxation by custom charges for customs operations. As that actions of officials of customs bodies in the course of realisation of customs operations act. According to subitem 29 of item 1 of item 4 TK the HARDWARE customs operations

The actions made by persons and customs bodies with a view of maintenance of observance of the customs legislation of the Customs union are considered. Existing definition of customs operations does not give accurate understanding of an essence and quantity of the actions directed on observance of requirements TK the HARDWARE, and also legislations of the Russian Federation on customs business.

It is represented, that any actions which purpose is maintenance of observance of the customs legislation, represent customs operations. The actions of the payer directed on observance of the legislation in a part discharge of duty on payment of customs payments, in a science also are considered as a version of customs operations [201]. However on maintenance of observance of the customs legislation with the state customs applicants, customs representatives, owners of customs warehouses and warehouses of time storage are not authorised. It is the duty of customs bodies fixed in definition of the customs control (subitem 31 of item 1 of item 4 TK the HARDWARE; subitem 41 of item 1 of item 2 TK EAES) also it is named among the primary goals of customs bodies (subitem 2 of item 1 of item 6 TK the HARDWARE). The main duty physical and legal bodies at fulfilment of customs operations - observance of the customs legislation, instead of its maintenance. Observance, execution, use and application of rules of law are realisation forms is right [202]. Right realisation is understood as process of an embodiment of rules of law in lawful behaviour of subjects of public relations, however it is impossible to reduce the given process exclusively to realisation of the text of the separate legal rule [203].

According to subitem 37 of item 1 of item 2 TK EAES it is established, that customs operations are the actions which are carried out by the person and customs body according to norms of international treaties and according to certificates in sphere of customs regulation and (or) the legislation of member states. The considered concept still includes actions of any participants of the customs legal relations corresponding to the customs legislation.

Actions of customs bodies and other persons which participate in customs legal relations, should correspond to the current legislation. The purpose of similar actions is not maintenance of observance of the customs legislation, and maintenance of the rights and legitimate interests of all subjects of customs relations and other interested persons. We believe expedient to agree from S.V.Halipovym, that the term «customs operations» should be formulated as the actions made by persons and customs bodies with a view of observance of right EAES [204]. Such statement will allow to avoid the contradiction in explanation of the maintenance of the given term. And optimisation of customs operations will promote the maximum satisfaction of interests of business communities and other persons moving the goods through customs border EAES.

There is a point of view according to which in right EAES it is not necessary to apply a word-combination «customs operations», and an "operation" word to use as a synonym of a word "action" with appropriate specification in a concrete situation [205]. The structure of customs operations joins separate actions concerning the goods, made by persons and customs bodies at release of the goods which is carried out according to positions TK the HARDWARE. The structure of customs operations, an order of their fulfilment neodinakovy and considerably differ on volume and complexity, and also depend on the characteristic of the goods, a vehicle kind by means of which there is a goods moving, from categories to which belong the persons moving them [206].

It is possible to assume, that customs operations share on the basis of the subject making them - the operations made by customs bodies as imperious subjects of customs legal relations, and subject subjects - payers. Customs operations also can be classified on the purpose of their fulfilment. For maintenance of observance of the customs legislation, action of customs bodies are directed on performance of the functions fixed to customs bodies, and are made taking into account the rights assigned to them and duties.

The analysis of positions of the customs legislation has allowed to present the following classification of customs operations.

1. The customs operations previous giving of the customs declaration (section 4 TK the HARDWARE):

- The customs operations, which realisation occurs in places of arrival of the goods: actions on time storage of the goods (item 169 TK the HARDWARE; item 98 TK EAES); preliminary customs declaring of the goods (item 193 TK the HARDWARE; item 114 TK EAES); release of the goods before customs declaration giving (item 197 TK the HARDWARE; item 120 TK EAES);

- The customs operations made in places of departure of the goods (item 163 TK the HARDWARE; item 92 TK EAES): representation to customs body of the customs declaration or other document supposing possibility of their export from the customs territory of the Customs union; the permission of customs body to departure of the goods from the customs territory of the Customs union by putting down on the document by which their export is supposed, corresponding marks.

2. The customs operations connected with a premise of the goods under a customs procedure (section 5 TK the HARDWARE):

- Giving to customs body of the customs declaration and (or) the documents necessary for a premise of the goods under a customs procedure (item 181 TK the HARDWARE);

- Release of the goods according to the declared customs procedure (item 195 TK the HARDWARE).

As a whole appointment and specificity of the given operations are reduced to the control in the field of customs business. Application by customs bodies of any approved item 110 TK the HARDWARE (item 322 TK EAES) forms of the customs control is the action directed on observance of right EAES, that is customs operation.

In certain situations from customs bodies the special skills connected with necessity of the effective customs control [207] can be demanded. If the state starts with necessity of attraction of payers to indemnification of expenses on realisation of customs functions to exclude payment of such actions of the bases is not present. But customs operations are adhered to the fact of moving of the goods through customs border EAES. I.V.eagle also expresses opinion that custom charges represent the payment directly connected with moving of the goods through customs border [208]. At the same time separate scientists stand on other position. So, A.JU.Denisov and A.N. Kozyrin believe, that in legislative fastening of concept of custom charges there is no its dependence on the fact of moving of the goods through customs border, and the custom charges are connected with conditions of the declared customs procedure, which not always comes to the end with export of the goods for limits of territory EAES (for example, a customs procedure of destruction of the goods, refusal of them in favour of the state) [209].

Taking into consideration the given problem, it is necessary to address to Republic Kazakhstan experience where the custom charges are called as gathering for customs declaring of the goods and it is paid for giving of the customs declaration [210 [211]. Thus, in this country the legislator accurately expresses object of taxation by custom charges and the explanatory is given the payer what to pay it it is necessary at declaring of the goods which moving through customs border EAES is necessary. However in the Russian Federation it is called as custom charges for customs operations though, as a matter of fact, it is paid for declaring of the goods.

All goods moved through customs border EAES, come under to obligatory customs declaring which can be considered as the statement the customs applicant to customs body of data on the goods, about the selected customs procedure and (or) other data necessary for release of the goods (subitem 27 of item 1 of item 4 TK the HARDWARE; subitem 35 of item 1 of item 2 TK EAES).

As marks V.V. Eremin, customs declaring in narrow sense represents customs operation, and in a broad sense - a customs procedure. I.V.Timoshenko pays attention to compulsion of declaring of the goods and vehicles as a condition

Their movings through border of the Russian Federation [212]. Such condition is reflected in the customs legislation now.

In legal regulation of institute of customs declaring legislative norms which mention as interests of the persons moving the goods, and customs bodies are used. On the one hand, they urged to provide the accelerated process of customs declaring that is favourable both to customs applicants, and customs bodies in connection with essential decrease in time expenses at release of the goods. With another - owing to a considerable quantity otsylochnyh norms TK the HARDWARE complicate understanding the customs applicant of a procedure of customs operation on declaring of the goods [213 [214].

The operating customs legislation allocates written and electronic forms of declaring: (item 3 of item 179 TK the HARDWARE; item 3, item 4 of item 104 TK EAES). The persons moving the goods, have the right to choose the declaring form independently. In the Russian Federation electronic declaring is obligatory (item 1 of item 204 of the Law on customs regulation). Use of electronic document circulation in customs activity allows to improve realisation of customs operations, to create optimum conditions for development of the trade relations essential replenishment of a profitable part of the federal budget of the Russian Federation can become which result. Now the basic volume of declarations moves in the electronic form which use accelerates process of receipt of customs payments in the federal budget of the state. Contact of personal contact of customs bodies to the persons transporting the goods through customs border EAES is thus minimised.

Despite an increasing role of use of electronic document circulation, the Government of the Russian Federation defines a case of declaring of the goods in writing. Proceeding from position of item 5 of item 104 TK EAES customs declaring in writing can be made in cases when customs bodies have no possibility to provide realisation of customs declaring in the electronic form the customs applicant in connection with technical failures and infringements in work of a communication facility.

Customs declaring of the goods is made by the customs applicant or the customs representative who is carrying out from his name or under the commission certain actions concerning moving of the goods through customs border EAES. It is necessary to agree with A.A.Shahmameteva's opinion, that customs declaration drawing up is one of the basic duties of customs applicants. Therefore customs bodies under no circumstances should not interfere with process of drawing up of the declaration owing to that the declaration generates obligations for the customs applicant and only it bears responsibility for reliability of data [215]. All data specified in the declaration are necessary for the customs purposes.

Point 1 of item 180 TK the HARDWARE (item 1 of item 105 TK EAES) contains the list of following kinds of customs declarations: the declaration on the goods; the transit declaration; the passenger customs declaration; the declaration on a vehicle. The duty of payment of custom charges for customs operations in case of giving is provided: the incomplete customs declaration (item 212 of the Law on customs regulation); the periodic customs declaration (item 213); the time customs declaration (item 214) full of the customs declaration. The duty of payment of custom charges for each submitted customs declaration as in each case concerning the customs applicant legally significant actions which are connected with carrying out of declaring of the goods are carried out is established also.

Custom charges pay persons for customs operations at import of the goods on customs territory EAES, and also at their export. In case of export from the country of the Russian goods in which relation exact data cannot be presented, periodic time declaring for which the custom charges should be paid is applied. As in such circumstances behind giving of the time customs declaration and the subsequent export of the goods for limits EAES the full customs declaration should be represented, the customs applicant faces necessity of double payment of gathering at export of one commodity party: at first at giving of the time customs declaration, then full, that breaks a principle of momentariness of taxation.

Owing to indistinct definition by the customs legislation of object of taxation by custom charges for customs operations, there is their wrongful increase. S.Kakurin considers, that payment of the given kind of gathering should be unitary and contact payment for the concrete transported goods, instead of for the fact of fulfilment of actions by the customs bodies connected with acceptance of the customs declaration [216].

In 2008 when custom charges for registration were predecessors of custom charges for customs operations, before the Supreme Arbitration Court of the Russian Federation there was a problem to resolve dispute on double payment of these gathering. The conclusion on the given dispute is reduced to that stages of representation of the time and full customs declaration together with other customs operations constitutes uniform procedure [217]. Thus, at giving of the time customs declaration in the course of periodic time declaring of the goods the complex of actions of customs bodies is paid for customs registration and repeated payment of gathering is excluded at giving of the full customs declaration.

Despite decision-making by superior court, FTS Russia in the letter from October, 8th, 2008 № 01-11/41807 [218] has explained, that at existence of an ambiguity of norms of the legislation it is necessary to pay gathering not only at giving of the time customs declaration, but also and submitting the full customs declaration. Position FTS of Russia recognises that customs bodies carry out necessary significant actions with each customs declaration and consequently, it is necessary for payer of gathering to compensate authority expenses for fulfilment of each action.

Defining compensatory character of custom charges for customs registration, in 2009 the Federal Arbitration court of the East-Siberian district has come to conclusion about annulment of the decision of customs bodies about collecting from the payer of custom charges at giving both time, and the full customs declaration as services in customs registration [219] were twice rendered to the customs applicant. Submitting the time customs declaration it is necessary to pay custom charges, however indemnification of all costs suffered by customs bodies at fulfilment of certain actions it can and not be provided. In this connection, the Federal Arbitration court of the East-Siberian district has taken out motivirovannoe the decision on putting on on customs bodies of decision-making on return of the gathering paid for customs registration of full customs declarations as representation of the time and full customs declaration in aggregate constitutes the uniform customs operation which is not demanding payment in the double size of custom charges for customs registration [220].

At present custom charges are paid at giving both time, and the full customs declaration (item 7 of the Governmental order of the Russian Federation № 863). On the basis of this norm courts of justice do not satisfy the requirement of persons about return of custom charges for giving of the full customs declaration at periodic customs declaring, and customs bodies do not make such return [221 [222]. Courts of justice come to conclusion, that officials of customs bodies undertake actions on release of the goods concerning each customs declaration, hence, it is necessary to pay gathering as

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At giving time, and the full customs declaration.

Moreover, the Constitutional Court of the Russian Federation specifies, that the federal legislator within the diskretsii has the right taking into account complexity, labour input and other features of passage of procedures of customs declaring to establish various variants of collection of customs payments [223]. The given circumstance confirms legality of collection of custom charges at giving both time, and the full customs declaration. However such situation leads to double taxation that breaks principles of equal, fair and proportional taxation by the gathering, following of item 19, 55 and 57 Constitutions of the Russian Federation. It is represented, that the legislator contrary to the constitutional positions tries to legalise custom charges for customs operations in the double size for declaring of the same goods.

For the purpose of contradiction elimination to the constitutional norms we believe, that customs bodies should make recalculation of custom charges at giving of the full customs declaration, considering the sum of the paid gathering at giving of the time declaration. Thus it is necessary to use a design procedure of cost of gathering at giving of the full customs declaration depending on concrete circumstances of its giving [224]. As the customs applicant has a right to take out the goods in bolshem volume, than is declared in the time declaration, at giving of the full declaration it is possible to pay in addition custom charges for customs operations only. Such situation leads to actual deterioration of position of the customs applicant applying periodic time declaring, in comparison with the position of other same customs applicant which is carrying out declaring in the general order, for for the first the size of custom charges for customs operations twice more than for the second. It will be more expedient to payers of gathering to pay in addition the determinate sum, than to pay gathering at giving at first time, and then and the full customs declaration. Fastening of such position will lead to elimination of double taxation by custom charges for customs operations.

On the basis of the above-stated, taking into account the legal nature of customs operations, object of taxation for custom charges for customs operations are actions of officials of customs bodies on release of the goods which are reduced to the control over reliability of the data specified in the customs declaration.

3. Settlement base for calculation of custom charges for customs operations. As that customs cost of the declared goods acts. The mechanism of its definition is established on nadnatsionalnom level [225 [226] and added by the governmental rules of definition of customs cost of the goods which are taken out from the Russian Federation.

Declaring of customs cost is carried out by the statement of data for a method of definition of customs cost of the goods, size of customs cost of the goods, for circumstances and the conditions of the external economic transaction concerning definition of customs cost of the goods, and also representation of documents confirming them (item 65 TK the HARDWARE; item 313 TK EAES).

Questions of correctness of definition and calculation of customs cost remain actual as for the majority of the persons moving the goods through customs border, and for customs bodies which carry out supervising and correcting functions [227]. Customs cost is object of many scientific researches and one of the most widespread subjects in judicial-arbitration practice of the permission of customs disputes. However numerous legal researches on these subjects leant on invalid now the customs legislation of the Russian Federation and could not consider existence of customs regulation within the limits of EAES [228]. Necessity of the careful analysis of legal regulation of customs cost

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It is caused by formation of right EAES.

The declared customs cost of the goods and the presented data concerning its definition, should be based on the authentic, quantitatively defined and documentary confirmed information and to pursue the aim of adequate reflexion of a monetary estimation of the goods. However in practice there are situations when customs applicants deform data on customs cost, quantity, weight of the goods for the purpose of decrease in paid custom charges for customs operations that leads to certain losses of incomes of budgetary system. For the statement of the doubtful data specified in the customs declaration, the customs applicant or the customs representative bear responsibility according to KoAP the Russian Federation. The legislator approves, that at declaring of the goods with giving of the time customs declaration of the rate of custom charges for customs operations cannot depend on customs cost of such goods. However in customs cost of the goods it is impossible to reflect the real expenses suffered by customs bodies at fulfilment of operations. Moreover, in the Russian legislation there is no mechanism of definition of the size of such expenses that is a legal regulation blank.

Thus, use as settlement base for calculation of custom charges for customs operations of customs cost of the moved goods breaks a principle of equivalence of taxation by custom charges. The given element of taxation should be defined, proceeding from expenses of customs bodies for fulfilment of the necessary actions connected with the control of data, specified in the customs declaration.

4. Rates of custom charges for customs operations are established by the Governmental order of the Russian Federation № 863 which operates in a part which are not contradicting the decision of the Commission of the Customs union from June, 18th, 2010 № 311 [229].

According to the legislation the size of custom charges for customs operations should correspond with approximate cost of the services rendered by officials of customs bodies. As consequence custom charges compensate the expenses connected with actions of customs bodies under the control over reliability of data in the customs declaration. Discrepancy to the legal nature of custom charges for customs operations proves to be true in the size of payment existing till January, 2005 which constituted 0,15 % from customs cost of the moved goods [230]. Now calculation of gathering is made proceeding from customs cost of the goods in which real expenses of customs bodies for fulfilment of customs operations cannot be reflected. The legal and economic substantiation for an establishment of the rate of custom charges thus is required. The size of custom charges should be formed of expenses of officials of customs bodies for performance of corresponding actions, instead of can depend on customs cost of the goods.

Attachment of custom charges to costs of supervising bodies reduces their size and reduces expenses of payers. Now rates of custom charges for customs operations are established by the Government of the Russian Federation and which limiting size cannot exceed 100 000 rbl. It is represented not clear, by what criteria the legislator was guided, defining its limit.

At export from EAES the goods which are not assessed with the export customs duties, rates of custom charges for customs operations cannot depend on cost of such goods, however in practice calculation of custom charges for customs operations in any case depends on cost of the declared goods.

At declaring of the goods with giving of the time customs declaration of the rate of custom charges for customs operations cannot depend on cost of such goods. At giving of the time customs declaration on the goods to which time, periodic customs declaring is applied, custom charges for customs operations are paid under the rate 5 000 rbl. At the subsequent giving to customs body of the full customs declaration on the same goods custom charges for customs operations paid under the rates established by item 1 of the Governmental order of the Russian Federation, that is depending on customs cost: from 1 rbl. to 200 thousand rbl. - 500 rbl.; from 200 thousand rbl. 1 copeck to 450 thousand rbl. - 1 000 rbl.; from 450 thousand rbl. 1 copeck to 1 200 thousand rbl. - 2 000 rbl.; from 1 200 thousand rbl. 1 copeck to 2 500 thousand rbl. - 5 500 rbl.; from 2 500тыс. Rbl. 1 copeck to 5 000 thousand rbl. - 7 500 rbl.; from 5 000 thousand rbl. 1 copeck to 10 000 thousand rbl. - 20 000 rbl.; From 10 000 thousand rbl. 1 copeck and more - 30 000 rbl.

The governmental order of the Russian Federation ustanavleno, that at fulfilment of customs operations concerning imported on territory of the Russian Federation and taken out from territory of the Russian Federation of the securities nominated in a foreign currency, custom charges for customs operations are paid at a rate of 500 rbl. concerning party of the securities issued under one customs declaration. As a matter of fact, establishing the rate of custom charges depending on instructions of data in one customs declaration, the legislator confirms the fact of payment of custom charges not for fulfilment of all customs operations, and is concrete, for declaring of the goods.

At export from the Russian Federation of the goods which are not assessed with the export customs duties, custom charges for customs operations irrespective of a customs procedure under which the taken out goods are located, are paid under the rate 1 000 rbl. provided that the goods which are not assessed with the export customs duties are declared in one customs declaration only.

Except the goods which are not assessed with the export customs duties at export from the Russian Federation of such goods, specified in one customs declaration, irrespective of a customs procedure under which the taken out goods are located, custom charges for customs operations are paid:

- Under the rate 1 000 rbl. - concerning the goods which are not assessed with the export customs duties;

- Under the rates established by item 1 of the Governmental order of the Russian Federation № 863, concerning the goods, assessed with the export customs duties.

5. An order of calculation of custom charges for customs operations. Payers of custom charges personally make calculation of the sums of the custom charges which are coming under to payment. They have not the right to shift this duty on other persons and customs bodies, except for cases when customs bodies expose the requirement about payment and at calculation of custom charges concerning the goods for a private use. Putting on of such duty on the payer means, that the given person bears responsibility for correctness of calculation of the sums of corresponding payments.

Calculation of the sums of custom charges coming under to payment is made in currency of the Russian Federation. In case for calculation of the sums of custom charges it is required to make foreign currency recalculation, the rate of foreign exchange to currency of the Russian state, established by the Central bank of the Russian Federation and operating at date of customs declaration registration by customs body is applied.

6. An order and terms of payment of custom charges for customs operations. In item 3 of item 128 of the Law on customs regulation uniform rules of payment of custom charges are fixed. Custom charges can be paid non-cash by by means of electronic terminals, cash dispenses, by means of custom cards. Concerning the goods for a private use to physical persons the special order of payment of custom charges is established: they have possibility to pay in cash desk of customs body in the cases established by the Governmental order № 863.

Under the general rule of action of officials of customs bodies on fulfilment of customs operations with the goods moved through customs border EAES are carried out in work of customs bodies in places of their finding. The operating mode of officials of customs body is defined by their head independently. Before Customs union formation, on demand of the interested person separate actions of customs bodies could be carried out out of an operating time and out of the locations of customs bodies [231]. According to TK the Russian Federations (1993) out of a place or out of an operating time of customs bodies were levied custom charges for customs registration in the double size. In operating TK the HARDWARE of similar positions do not contain, though possibility of fulfilment of customs operations out of the established places and time has remained. It is thought, that the establishment of such norm in the current customs legislation will allow in bolshem to fill up volume a profitable part of the federal budget.

Custom charges are paid for customs operations simultaneously with customs declaration giving (item 1 of item 127 of the Law on customs regulation), and if at the moment of customs declaration giving there will be an established fact of non-payment of custom charges for customs operations it will be the basis for refusal in customs declaration acceptance. Recalculation, surcharge, return of the sum of custom charges for customs operations are not made in case of customs declaration acceptance by customs bodies.

Discriminating feature of custom charges for customs operations is the preliminary order of payment of payment. At change of the rate of gathering before customs declaration registration the rates operating at the moment of giving of corresponding declaration are applied. The given order corresponds to a principle of an openness of actions of customs bodies at fulfilment of customs operations.

At payment of custom charges for customs operations at giving both time, and the full customs declaration the rate of foreign exchange to currency of the Russian Federation, operating at date of registration of the declaration [232] is applied.

Article 129 of the Law about customs regulation establishes cases when return of custom charges for customs operations is not made. If the customs declaration is not registered by customs body, custom charges for customs operations do not come under to collection. The paid sums of custom charges for customs operations come under to return to a generally established order in case the declaration is registered by customs body [233].

Proceeding from stated, custom charges for customs operations are paid at declaring of the goods. Thus there are no exceptions at use by the customs applicant of customs procedures in which frameworks some customs declarations move.

Return of custom charges is possible in the event that as a result of wrongful acts of customs bodies the persons moving the goods, have incurred additional expenses on payment of this gathering. So, Open Company "НТК" has addressed in Arbitration court of Primorye Territory with the statement for a recognition illegal the actions of the Vladivostok customs expressed in overestimated calculation of maintenance of the size of payment of customs payments, coming under to entering with a view of goods release. The customs representative on the imported goods had been submitted the customs declaration, customs cost of the imported goods was defined on a basis tovarosoprovoditelnyh documents. Customs the decision on carrying out of additional check of customs cost was accepted. To the customs representative calculation of the size of maintenance of payment of the customs payments which are coming under to entering with a view of release of the goods, in the determinate sum has been directed. In connection with absence of money resources for payment of maintenance of this sum of Open Company "НТК" has addressed with the statement for a declaration response. The customs representative has repeatedly submitted the declaration on the goods imported into the address of Open Company "НТК", and has paid custom charges. Concerning the submitted declaration check also is spent and calculation of maintenance of payment of customs payments of Open Company "НТК" is directed. However having considered, that the sizes of maintenance of the customs payments exposed by the Vladivostok customs, are unreasonably overestimated, Open Company "НТК" on procedure of customs transit has moved the disputable goods to a zone of activity of Nahodkinsky customs where the declaration on the goods has been submitted. The Nahodkinsky customs also spends check of customs cost and calculation of the size of maintenance of payment of the customs payments which are coming under to entering for release of the goods is exposed. After pledge entering into the specified sum the goods have been let out in the free reference according to the declared customs procedure. Having disagreed with actions of the Vladivostok customs by calculations of the sizes of maintenance of payment of customs payments, Open Company "НТК" has addressed in arbitration court with the statement for a recognition of actions of the Vladivostok customs under the submitted declarations the illegal. By the award of Primorye Territory in satisfaction of requirements it is given up [234]. However in appeal instance the given decision has been cancelled [235]. As cassation manufacture the court decision of appeal instance is left without change [236]. On the basis of the taken out judgements of Open Company "НТК" has submitted the claim to Arbitration court of Primorye Territory to the Vladivostok customs about collecting of the losses suffered as a result of illegal acts of customs body which were expressed in payment of custom charges for customs operations. Claims have been satisfied in full, and in favour of Open Company "НТК" damages in the sum of the paid custom charges for customs operations [237 [238] are claimed. Judiciary practice studying has shown a significant amount of similar customs disputes.

The Supreme Court of the Russian Federation has explained, that in case of a recognition court illegal decisions of the customs body influencing calculation of customs payments, with a view of full restoration of the rights of the payer the duty is assigned to customs bodies on return from the budget of the paid sums of money [239]. Thus, it is possible to assume, that courts of justice in similar cases stand on the party of payers of custom charges and on the basis of the taken out decision pay the damages caused to its owing to illegal acts of customs bodies.

7. Privileges on payment of custom charges for customs operations. As a facultative element of taxation by privilege custom charges are expressed in full or partial clearing of their payment.

According to item 1 of item 131 of the Law on customs regulation custom charges for customs operations are not levied concerning certain kinds of the goods:

- The goods which are imported into the Russian Federation and taken out from the Russian Federation, concerning according to the legislation of the Russian Federation to free aid (assistance) [240];

- The goods, imported into the Russian Federation and taken out from the Russian Federation diplomatic representatives, consular establishments, other official representations of the foreign states, the international organisations, the personnel of these representations, establishments and the organisations, and also the goods intended for a private use of separate categories of foreign persons, enjoying advantages, privileges and (or) immunities according to international treaties of the Russian Federation;

- The cultural values placed under a customs procedure of time import (admission) or a customs procedure of time export by the Russian state or municipal museums, archives, libraries, other state storehouses of cultural values with a view of their exhibiting, and also at end of action of the specified procedures by a premise of the goods under procedure of re-export and reimporta the goods [241];

- The goods moved by physical persons for personal, family, house and other not connected with realisation of enterprise activity of needs in which relation full clearing of payment of the customs duties, taxes [242 [243] is given;

- The goods sent in the international items of mail, except for cases, when declaring of the specified goods

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It is carried out by giving of the separate customs declaration;

The-goods which are imported into the Russian Federation and taken out from the Russian Federation as supplies [244];

- The professional equipment used for manufacture and release of mass media, at a premise under a customs procedure of time export, and also at end of a customs procedure of time export by a premise of the goods under a customs procedure reimporta [245];

- The goods intended for sports competitions, indicative sports actions or trainings, at a premise under a customs procedure of time import (admission) or a customs procedure of time export and end of the specified procedures by a premise of the goods under a customs procedure of re-export and reimporta accordingly if concerning such goods full conditional release from payment of the customs duties is given, taxes, etc. [246]

Besides custom charges for customs operations are not levied concerning not registered medical products for medical aid rendering under vital indications of the concrete patient, and also haemopoetic stvolovyh cages and a bone brain for carrying out of the unrelated transplantation, imported into the Russian Federation on the basis of the allowing document which has been given out by authorised federal enforcement authority [247].

According to the Law of Byelorussia from January, 10th, 2014 № 129-Z «On customs regulation in Byelorussia» custom charges for fulfilment of customs operations are not paid at fulfilment of customs operations concerning the goods placed under a customs procedure экспорта1. In the Russian Federation at payment of custom charges the specified privilege is not applied at export of goods, however its introduction can become the major precondition for dynamical development of a national economy in the conditions of increasing globalisation of economic.

At declaration giving on the goods in the electronic form rates of custom charges for customs operations at a rate of 75 % from the Russian Federations established by the Governmental order are applied. Reducing the gathering rate, the legislator stimulates interested persons to use of electronic declaring. Applying the given way of giving of the customs declaration, the persons moving the goods, bear smaller financial expenses.

Such element of taxation by custom charges as granting of privileges, is a facultative sign. In the scientific literature it is noticed, that any actions directed on reduction of receipts

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In the budget, it is perceived by customs bodies «in bayonets». However in the conditions of the Euroasian economic integration throughout last years stage-by-stage decrease in administrative barriers to subjects of foreign trade is observed. This fact allows to speak about the account

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Interests of persons at moving of the goods through customs border as the primary purpose of activity of customs bodies still is assistance to foreign trade.

1 See: Petrik A.S.feature of moving of cultural values through customs border of the Customs union in member states of the Customs union within the limits of EvrAzES//Reforms and the right. 2014. № 4. With. 12-19. [248 [249]

In a science the opinion on custom charges cancellation for customs operations [250] is stated. In a counterbalance A.JU.Denisov's to such offer believes, that such gathering is obligatory, for brings in in the federal budget of the country the considerable income [251 [252]. However in the long term it is necessary to consider a question on cancellation of custom charges for customs operations. In a substantiation of such position we will result following arguments.

One of substantive provisions of a modern state policy concerning customs regulation is that custom charges should not carry especially fiscal character as custom charges should cover costs of customs bodies at realisation of the official duties. However customs bodies are the state bodies and carry out powers for which fulfilment receive wages from the federal budget.

Function performance on realisation of customs operations by customs bodies cannot depend on receipts of the sums of custom charges. Moreover, the basic strategic reference point of the customs

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Bodies assistance of the foreign trade activity is. Financing of the functions assigned to them is assigned to the state, instead of on under control subjects.

At payment of custom charges for customs operations officials of customs bodies make actions in interests of the payer as bear expenses which the payer should compensate. Hence, gathering should be paid for concrete actions concerning it. Custom charges are paid for fulfilment of actions by officials of customs bodies which are reduced to the control over reliability of the data specified in the customs declaration. However other functions provided by item 12 of the Law on customs regulation are assigned to customs bodies also. If the legislator by collection of custom charges pursues the aim to compensate an expense of customs bodies at realisation of official duties by them, hence, it would be possible to enter gathering and for exchange control carrying out, conducting customs statistics and realisation of other powers.

Thus, custom charges collection for customs operations strengthens weight of burden of taxation of the persons moving the goods through customs border EAES. Creation of comfortable conditions for foreign trade activities realisation, and also the effective mechanism of administration will be carried out first of all by perfection of customs regulation and finally will lead to reduction of number of quarrels at law in the given sphere [253 [254]. It is represented, that, levying custom charges for customs operations, the legislator gives them the status of "the legitimised bribe» as now they are established for execution by officials of customs bodies of the powers.

Studying of practice of application by vessels of norms of international treaties by consideration of customs disputes has serious value as from the point of view of revealing of blanks, lacks of the national legislation, and from the point of view of realisation of the rights of participants of foreign trade activities, diligent execution by them the

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Duties and their efficiency it is judicial-legal protection. Owing to consideration of a question on legitimacy of payment of custom charges courts of justice recognised as their legitimate.

Thus, the analysis of features of financially-legal regulation of the specified kind of custom charges has allowed to formulate following conclusions:

First, with a view of double taxation bar of claim by lapse of time at calculation and collection of custom charges for customs operations, it is necessary for customs bodies to consider the sums before paid at giving of the time customs declaration of custom charges at giving of the full customs declaration. The specified changes are necessary for bringing in item 2 of item 129 of the Law on customs regulation;

Secondly, custom charges for customs operations it is necessary to recognise as object of taxation actions of officials of customs bodies on release of the goods which are reduced to the control over reliability of the data specified in the customs declaration. As custom charges are paid for customs operations only at declaring of the goods, it is offered to make use of experience of Republic Kazakhstan and to rename custom charges for customs operations on «custom charges for declaring of the goods». In this connection in subitem 1 of item 2 of item 123 of the Law on customs regulation to change the gathering name;

Thirdly, it is necessary to consider the problem on stage-by-stage cancellation of the specified kind of custom charges as fulfilment of customs operations, including the goods connected with declaring, is one of the basic functions of the customs bodies financed at the expense of budgetary funds.

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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 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:

  1. features of financially-legal regulation of an order of calculation, payment and collection of custom charges for storage
  2. Chapter 2. Features of financially-legal regulation of an order of calculation, payment and collection of custom charges
  3. Chapter 1. Theoretical bases of financially-legal regulation of custom charges under the legislation of the Russian Federation
  4. custom charges: concept and the legal nature
  5. custom charges in system of customs payments
  6. 2.2. Actual aspects of an order of calculation, payment and collection of custom charges for customs support
  7. 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
  8. Custom charges as not tax income of the federal budget
  9. § 1. Concept of custom duties and customs-tariff regulation
  10. § 1. The custom theory in the Anglo-Saxon legal doctrine
  11. § 2. Custom in legal system of England
  12. § 2. Custom in legal systems of a Romance subgroup of the romano-German legal family
  13. § 1. The custom theory in the romano-German legal doctrine
  14. § 3. Custom in legal system of the USA
  15. § 4. Custom in legal systems of the Scandinavian, Latin American, African and Far East subgroups of the romano-German legal family