<<
>>

Formation of financially-legal regulation of clearing of payment of the customs duties concerning the Russian Courts of Admiralty

Explanation of an essence and the maintenance of a considered financially-legal privilege is impossible without the analysis of features of development of the customs legislation, ship-building and ship-repair branches of Russia, a marine sea fleet, and also their modern condition.

Goods turnover regulation between the various countries is the major element of legal system of many states since the most ancient times.

In Russia concerning clearing of Russian merchants of payment of usual 10 % of the customs duties on all goods which were imported into Constantinople it is considered to be the first international agreement the contract concluded by prince Oleg with Byzantium on September, 02nd of 911 to 1 Conclusion of the specified agreement the successful campaign of Russia to Constantinople (860) which, under the certificate of Constantinople patriarch Fotija, already then has been organised for the purpose of vengeance for insult to Russian merchants [7 [8] preceded.

The beginning of formation of system of the Old Russian customs duties in Russia was necessary in 988-989 of [9] establishments First official fastening and collection of customs payments has been carried out in the code of laws «Russian truth» [10].

Throughout centuries regulation in sphere customs pravootno - sheny repeatedly varied (as under the influence of internal, and the external reasons, for example, as a result almost tryohsotletnej dependences of Russian princedoms on the Mongolian empire which has made considerable impact on development of customs regulation on Руси1) and has been in details considered by scientific community [11 [12]. For example, I.I.Patlaevsky noticed, that in prehistoric Russia there were customs duties (both internal, and external) different names: « tamga "," kontarnoe "," elevating and pripusk "," rukoznobnaja the duty "," an appearance "," myt "," coastal "," otvod "," shestovina "," perevoz »[13] etc. Thus in a science is present some points of view concerning a periodization of history of legal regulation of customs relations at Russia. For example, A.S.Loginov allocates five stages (till 1596 - occurrence of customs business in Russia; 1596-1718 - formation of customs procedures (presence of the state and private customs; 1718-1917 - introduction of custom duties and formation of uniform system of customs bodies; 1917-1964 - is standard-legal regulation in the Soviet Russia and the USSR; 1964-1991 - attempts of ordering and unification of the customs legislation) [14]. But there are also other points of view on this question [15].

Special interest in questions of formation and development of the modern customs legislation, and also foreign trade activities regulation represents the period counting the beginning from the moment of formation of the Soviet Republic. Founders of the Soviet power realised importance of the international interaction and a special role of foreign trade activities, finding out in it the important tool of formation of an economic basis of the national state. As mark V.G.Panskov and V.V. Fedotkin, customs business was considered by the Soviet power, as the special tool for negotiations on an establishment of mutual privileges, possibilities of certain maneuver and achievement of concessions from others государств1.

Despite it, before acceptance of the documents directly regulating realisation of foreign trade, Bolsheviks had been realised measures concerning the Soviet Courts of Admiralty and regulation of their export for country limits. The decree of Council of National Commissioners from November, 24th, 1917 «About prohibits sales, zaklada and returns on chartet-school desks russkih torgovyh sudov v hands inostrannyh poddannyh or have been founded» the interdiction to proprietors of vessels on the order by them, and all transactions on transfer of Russian vessels abroad is entered, made after July, 19th, 1914 admitted void. It was forbidden to take out for limits of Russia all sold, put in pawn or zakontraktovannye under such transactions of court [16 [17].

Prime measures concerning foreign trade regulation have been fixed in the Decision of Council of National Commissioners of RSFSR from December, 29th, 1917 «About an approval procedure on import and export of the goods» [18]. With acceptance of the specified decision export or import of any goods to Russia without the permission of the Commissariat of trade and the industry admitted contraband. It is considered, that introduction of such razreshitelno-prohibitive system was the objective necessity caused by foreign intervention and civil war in стране1.

After October revolution of 1917 and up to 1922 import of any goods in RSFSR was carried out without payment of the customs duties in spite of the fact that power to define categories of the imported goods in which relation the customs duties could be charged, has been given the National commissariat of foreign trade of RSFSR. It spoke that after lifting of a blockade of 1920 the volume of the imported goods was the extremely insignificant.

Following measures concerning the Courts of Admiralty have been realised within the limits of the Decree of Council of National Commissioners from January, 23rd (on February, 05th) 1918 «About merchant marine fleet nationalisation» [19 [20] which appeared the national indivisible property of the Soviet Republic belonging to joint-stock companies, to share associations, trading houses and individual large businessmen all sea and river vessels, and also belonging to them movable and real estate. Fleet nationalisation has been met by active sabotage from ship-owners: vessels put out of action, destroyed or sold to foreigners; destroyed the documentation which was required at assignation etc. [21]

On April, 22nd, 1918 the Decree of Council of National Commissioners «About foreign trade nationalisation» [22] had been established the state monopoly on foreign trade that meant possibility of fulfilment of the external economic transactions exclusively special representatives on behalf of RSFSR bodies.

In the literature it is noticed, that with state monopoly introduction on foreign trade, functions of customs system have been strongly simplified, and studying of history of customs business and the customs policy is practically ceased, in spite of the fact that its beginning was necessary only from the middle of XIX century. As specifies A.J.Solomein, the Moscow customs during this period it was planned to transform in national бани1.

The decision of Council of National Commissioners of RSFSR from July, 11th, 1920 «About the organisation of foreign trade and R.S.F.S.R's barter.» [23 [24] National commissariat of trade and the industry has been renamed into the National commissariat of foreign trade allocated with the exclusive right to carry out all trading operations with foreign state, private, by public institutions both other persons and the organisations. Nobody had the rights to carry out any actions, to carry on negotiations or to conclude any transactions, concerning import and export of the goods, without the preliminary consent and the permission of the National commissariat of foreign trade or its corresponding foreign bodies, and on the bases provided by them.

After two years the Decree of the All-Russia central executive committee and Council of National Commissioners of RSFSR [25] had been installed on March, 09th, 1922 the first Soviet custom duties (on the European imported trade). By its working out the pre-revolutionary custom duties applied in imperial Russia were used. Regulation of export trade has started to be carried out with acceptance by the specified body of the corresponding tariff on June, 13th, 1922 [26]

It is noticed, that the first custom duties carried strongly pronounced fritredersky character. Against economic decline necessity of elimination of food deficiency has moved interests and protection of national manufactures against a foreign competition on the second plan and impor -

In 1924 the first has been accepted kodifitsirovannyj the standard legal act in the field of the customs legislation of the USSR - Customs regulations of the Union of the USSR [27 [28] which were replaced subsequently by the accepted Customs codes of the USSR 1928 [29], 1964 [30] and 1991 [31]

The Soviet custom duties also were repeatedly reviewed with the account of necessity of reaction to the changes occurring in the world markets. But in view of the limited access on foreign markets their influence on a national economy was insignificant. The foreign trade policy of the USSR till 1988 represented system of measures of protecting character and during post-war time had an orientation on creation of the self-providing market among the countries of participants of Council of Economic Mutual aid that specifies in display of principles avtarkii.

With 1925 for 1928 of the USSR has concluded 25 interstate contracts for the purpose of delivery of the necessary equipment, mainly, agricultural as the national economy which was in ruin, felt extreme need for it. Its actual deliveries have been broken for the purpose of economic influence on changes occurring in the USSR. In the absence of foreign trade the role of customs regulation as source of formation of incomes of the state budget has sharply decreased: in a total sum of incomes they constituted only 4 % [32].

The decision of Council of work and defence of RSFSR against June, 13th, 1922 «About the state merchant marine fleet (position)» 1 had been founded the state steamship enterprises to which vessels were given, and also other property (docks and other) and were an independent economic unit which had the right to carry out the operations on the commercial bases.

Subsequently the Decision of the Central executive committee of the USSR and Council of National Commissioners from February, 12th, 1926 [33 [34] had been created the uniform trading-transport sea organisation - joint-stock company "Совторгфлот" [35], consolidated the transport vessels belonging before to various narcofloor-mats, departments and joint-stock companies, including mixed, with participation of the foreign capital. This certificate pawned bases of the centralised management by sea transport as its infrastructure including not only vessels developed uniform branch of a national economy, but also ports, ship-repair factories, educational institutions. A first year of work has confirmed expediency of formation "Sovtorgflota", achieved high indicators: transportations in small cabotage have grown more than in 1,5 times [36].

The decision of the Central executive committee of the USSR from November, 23rd, 1930 № 49 and Council of National Commissioners of the USSR from November, 23rd, 1930 № 630 [37] in article 7 of the Maritime Code of the USSR [38] had been made changes with which provided, that by the basic body in which conducting the state sea transport fleet concentrates, the All-union association of sea transport - "Sovtorgflot" is subordinated to the National commissariat of means of communication.

Despite state monopoly introduction on the foreign trade, the first indirect deviation from the specified interdiction is the positive resolution of the chairman of ministerial council of the USSR A.N.Kosygina on the letter of the minister of a marine sea fleet of the USSR of T.B.Guzhenko from the March, 23rd, 1973, containing the request to allow to get independently to the specified ministry new and second-hand sea vessels abroad within the limits of long-term leasing or berbout-chartera1. Subsequently for the centralised Soviet economy the establishment according to the Decision of Ministerial council of the USSR from March, 24th, 1988 [39 [40] joint-stock commercial enterprises «Soviet commercial fleet» to which balance vessels have been transferred, and also money resources in Soviet and a foreign currency, were on balance of a currency circulating capital of commercial operations of the Ministry of a marine sea fleet of the USSR [41] was uncharacteristic.

At this time has reached the peak the translation process which has begun in another states by ship-owners of the vessels under foreign flags. In 1984 it has been noticed [42], that the world's largest fleet carries out swimming under the flag of Liberia. The low registration payment, absence of profit taxes and feature of the labour legislation allowed the ship-owners who have registered the vessels in Liberia and Panama, successfully to compete on the world charter market.

In a science it is noticed, that to second half 80th of XX century the state monopoly mentioned not only foreign trade, but also currency regulation and included itself: centralisation of currency incomes in state hands, the minimum number of participants of foreign trade activities, concentration of a gain from export to a foreign currency on accounts Vneshtorgbanka the USSR, the USSR monopolising international payments, a planned distribution of currency resources on branches and regions and т.д.1

In 1991 three documents, defined an order of taxation are accepted by the customs duties: the Customs code of the USSR [43 [44], the Law of the Russian Federation «About custom duties» [45], the Law of the Russian Federation from December, 27th, 1991 «About bases of tax system of the Russian Federation» [46]. The Decree of the President of the Russian Federation from November, 15th, 1991 «About liberalisation of foreign trade activities of the Russian Federation» [47], aimed at refusal of the state control over the foreign trade operations [48] was a basis for formation of a new state policy in foreign trade activities.

It is necessary to notice also, that during this period in the countries of "a convenient flag» foreign vessels, but also the vessels belonging to domestic ship-owners were registered any more only.

Besides tax, updating and the customs legislation in this connection the Decision of the Supreme body of the Russian Federation from June, 18th, 1993 № 5221-1 had been accepted the Customs code of the Russian Federation (further - the Customs code of the Russian Federation (1993)) 1 was required. As specifies I.A.Tsidilina, necessity of acceptance for the shortest terms of the specified code has been caused by aspiration to fill up the state budget, and also that as a result of disintegration of the USSR the new states have been formed that has led to an inevitable establishment of new customs border [49 [50].

The desire of the state to increase incomes of treasury by means of customs payments proved to be true their significant amount and a variety: 11 kinds of customs payments were provided.

As fairly marks E.L.Vasjanina, complication of economic relations and aspiration of the state to increase budget incomes attracts behind itself an establishment of such payments which do not answer base principles of the taxation, causes deformation of the general concept of the taxation [51].

Thus, if the period with 1991 for 1992 is characterised by prevalence of measures of not tariff regulation (licensing, kvotirovanie and so forth) foreign trade since 1993 strengthening of fiscal function of customs bodies and active application of customs-tariff regulation [52] is appreciable. In separate years direct incomes of the federal budget of foreign trade activities constituted about 50 % of all incomes [53].

It is necessary to underline, that in the USSR on a share of ship-building branch third of total amount of world military shipbuilding had, and the Soviet state was included into ten countries with the most developed civil shipbuilding. It satisfied requirement of internal customers for sea transport approximately on 50 %, in river - 80 %, in fishery vessels - 60 % [54].

Transition of the domestic ship-building industry to work in the conditions of market economy has appeared difficult and the disease process which has made enormous changes in activity navigable and ship-building предприятий1. Financing decrease in 1990th has entailed decrease defensive research and opytnokonstruktorskih works in 5-6 times and within 12-15 years the scientific reserve necessary for working out of new technics actually was not created [55 [56]. Besides, disintegration of the USSR and privatisation of some ship-building and ship-repair factories (the part from which has gone bankrupt [57]), have coincided with carrying out of a significant amount of repairs of the Courts of Admiralty which are in operation.

Within 1990-2000 the state policy in the field of shipbuilding and ship repair support was limited to the state defensive order. Thus experience of the ninetieth years of last century has shown, that the undertaken attempt to repair civil vessels the ship-repair enterprises of a military-industrial complex of has not justified [58].

Now the branch, despite some signs of restoration last ten years, continues to be in a crisis situation [59] and has the whole complex of problems [60]. Absence of necessary capacities, abilities and professional experience, and also considerable costs at realisation of repairs of the Courts of Admiralty on domestic shipyards, forces the Russian ship-owners to direct vessels belonging to them for repair and maintenance service for limits of the Russian Federation.

At this time in Russia instead of purposeful and stage-by-stage restoration destroyed (or being on the verge of liquidation) ship-repair factories the measures, pursuing by the purpose creation of conditions at which realisation of repairs (maintenance service) concerning the Courts of Admiralty behind its limits would become unprofitable and burdensome for ship-owners, thereby have been taken, aspiring to raise appeal and expediency of their performance on domestic shipyards.

However ship-owners have more actively continued to re-register sea vessels belonging to them in the countries of "a cheap flag», aspiring as seldom as possible to return them on territory of the Russian Federation (or not to make at all sudozahody in the Russian ports) 1. It was promoted by legal regulation blanks, imperfection of a financially-legal privilege and ambiguity pravoprimenitelnoj and control practice of customs bodies. Customs bodies demanded payment of the import customs duties practically from any repair of a vessel [61 [62] made abroad, detained registration (or refused in registration) Courts of Admiralty [63] in ports to those

Time while the ship-owner did not bring demanded payments in full volume that involved unproductive idle time and losses for the last. «Neza - hodnye» 1 vessels became one of the basic problems of Russia in the field of sea transport [64 [65] [66].

In action of the Customs code of the Russian Federation (1993) the operations released from taxation by the customs duties, the gratuitous works performed concerning vessels provided by the legislation or the contract (mainly guarantee repair), and also the works necessary for restoration of a vessel after failure or action of force majeure were.

One of the first deviations from the practice which have developed on that moment of collection of the customs duties from all operations carried out concerning the Courts of Admiralty (except for listed above), has found the reflexion in point 9 of Position on features of legal regulation of a customs mode of the time import (export) applied to vehicles, approved by the Governmental order of the Russian Federation from July, 06th, 2001 № 517 [67]: ship-owners duty-free could carry out usual operations on repair and the vessel maintenance service, necessary for its safety and the operation, its costs which have not entailed increase in comparison with the book value at the moment of export. Later possibility of duty-free performance of such operations also has been fixed at the disposal of G osudarstvennogo customs committee of the Russian Federation from June, 25th, 2002 № 419-r [68].

Since January, 01st, 2004 the Customs code of the Russian Federation (2003) which has essentially changed the approach to clearing of payment of the customs duties from operations carried out abroad with the Courts of Admiralty has become effective.

So, according to point 1 of article 276 TK the Russian Federation it was provided, that at return import on the customs territory of the Russian Federation of temporarily taken out vehicle the customs duties were not paid, if the vehicle was not exposed outside of the customs territory of the Russian Federation to operations on processing, behind an exception:

- Operations on repair, maintenance service and other similar operations necessary for maintenance of its safety and operation, and also its maintenance in a condition in which it was at date of a premise under a customs mode of time export (paragraph 2 of point 1 of article 276 TK the Russian Federation);

- Operations on the repair, carried out free of charge owing to the law or the contract (paragraph 3 of point 1 of article 276 TK the Russian Federation);

- Operations on repair, including the major repairs, carried out for restoration of a vehicle after its damage owing to failure or action of force majeure which took place outside of the customs territory of the Russian Federation (paragraph 4 of point 1 of article 276 TK the Russian Federation).

After coming into force of the specified code ship-owners began to return sea vessels belonging to them on the customs territory of Russia - skoj to Federation and when due hereunder to inform customs bodies on the repairs executed abroad (flowing, averages, capital) and maintenance service of vessels belonging to them, with full clearing of payment of the customs duties as the maintenance of paragraph 2 of point 1 of article 276 TK the Russian Federation assumed necessity of their entering only in case of modernisation or vessel re-equipment.

The first large and mass quarrels at law between customs bodies and ship-owners have arisen concerning legitimacy of application of the specified privilege. In 2005 the quantity of quarrels at law between customs bodies and ship-owners has increased almost in 50 раз1. Against positive judiciary practice for the last many mass media came out with assumptions of fast initiation by customs service of amendments to the operating code [69 [70].

As a measure directed on change of judiciary practice existing at that time on application of paragraph 2 of point 1 of article 276 TK the Russian Federation, became letter FTS of Russia from September, 01st, 2005 № 01-06/30066 (further - Letter FTS of Russia № 01-06/30066) [71] in which it was specified, that the Governmental order of the Russian Federation resulted above from July, 06th, 2001 № 517 actually is not applied because Russia moved through border vehicles are made out in an order established by chapter 22 TK the Russian Federation.

According to the specified letter, contrary to paragraph 2 of point 1 of article 276 TK the Russian Federation, was excluded possibility of clearing of ship-owners from payment of the customs duties from cost of the capital, planned, average regulated, intertrip kinds of repair if their performance has been planned beforehand, and also repair abroad if it has entailed change of a technical condition of a vessel. It was underlined, that by consideration of a question on possibility of application of a privilege it is necessary for customs bodies to consider, that listed above operation should not be planned in advance, except for maintenance service about which performance the ship-owner could know prior to the beginning of corresponding flight, however, for clearing of payment of the customs duties it could be executed exclusively at realisation of concrete international transportation, for the purpose of vessel maintenance in a condition corresponding to its condition at date of a premise under a customs mode of time export.

Letter FTS of Russia № 01-06/30066 operated two months, has had time to find the reflexion in judicial практике1, however has been cancelled by order FTS of Russia from November, 24th, 2005 № 1107 [72] [73] in connection with refusal in its state registration of the Russian Federation [74] by the Ministry of Justice,

In 2005 for the purpose of creation in the Russian Federation conditions favorable for ship-owners the Russian international register of vessels [75] has been founded. Unlike other existing registers of ships [76], it had some advantages, similar that are given by the countries of "a convenient flag» with a view of attraction of ship-owners [77].

Now one of the basic advantages of the Russian international register of vessels consists that the vessel imported for registration in the specified register, is released from taxation by the customs duties that is directly provided by point 9 of the Decision of the Commission of the Customs union from July, 15th, 2011 № 7281 (further - Decision KTS № 728). The similar norm has found the reflexion in point 7.1.6 of the Decision of the Commission of the Customs union from November, 27th, 2009 № 130 [78] [79] (further - Decision KTS № 130).

However with introduction of the specified register the situation connected with growth of number of quarrels at law between customs bodies and ship-owners, has not changed.

Referring to necessity of protection of domestic ship repair, customs bodies did not cease working out of instructions and letters in which necessity of collection of the customs duties from cost executed outside of the customs territory of the Russian Federation of operations on repair and maintenance service of the Courts of Admiralty was explained, proving it «observance of interests of the Russian organisations which are carrying out repair work in territory of Russia that corresponds to interests of the Russian economy as a whole» [80]. Thus, as the additional criteria which have been not provided by paragraph 2 of point 1 of article 276 TK the Russian Federation, necessary, according to customs bodies, for application of a privilege containing in it were already marked, established. In particular, clearing was come under only by those operations, the requirement in which has arisen suddenly, in the course of performance by a flight vessel; such operations should not be planned by the ship-owner; Without which performance it is impossible to return a sea vessel on territory of Russia.

The analysis developed in action of the Customs code of the Russian Federation (2003) arbitration practice shows, that one of key problems in questions of application of the privilege containing in paragraph 2 of point 1 of article 276 TK the Russian Federation, was definition of character of the works spent concerning a sea vessel. For a substantiation of legitimacy of realisation of a privilege it was necessary for ship-owners to prove, that the operations executed concerning a sea vessel were necessary for maintenance of its safety and operation, and also maintenance in a condition in which it was at date of a premise under a customs mode of time export.

The scale of an existing problem is illustrated by that in 2006 Association navigable компаний1 (further - the Association) paid attention of Federal customs service, and subsequently and the Governments of the Russian Federation that used in paragraph 2 of point 1 of article 276 TK the Russian Federation the criterion - «for safety and operation maintenance» - demands specification. The association noticed, that the interpretation given to given privilege FTS of Russia, excludes its distribution on any of existing kinds of repair, except necessary for elimination of consequences of failures. Though from literal understanding of paragraph 2 of point 1 of article 276 TK the Russian Federation followed, that if repair was carried out for maintenance of conformity of a vessel to safety requirements (that proved to be true competent body) and has not entailed re-equipment, modernisation or improvement of technical characteristics of a vessel such repair should be released from taxation customs on - shlinami [81 [82].

Introduction of the uniform approach was offered, at which customs bodies would base the decisions on the conclusions received from Federal independent establishment «Russian sea register of navigation» 1 (further - FAU "RMRS", the Register) as according to the order of the Government of the Russian Federation from September, 30th, 2000 № 1377-r [83 [84] on the Register assign functions on unification of the standard base connected with designing, building, repair and other operations which are carried out concerning the Courts of Admiralty.

With a view of the permission of the given problem the House of Assembly of the Nizhniy Novgorod area had been prepared the draught federal law [85]. In an explanatory note to it it was noticed, that the existing model of collection of the customs duties from cost of operations on repair and maintenance service of the domestic Courts of Admiralty abroad involved decrease in competitiveness of a national merchant marine fleet in which structure were the vessels constructed in the USSR and maintained more of 10-15 years. Increasing financial encumbrance of the Russian ship-owners, FTS Russia actually pushed them on transfer of the Courts of Admiralty belonging to them under jurisdiction of other countries, including for the purpose of maintenance of their competitiveness in the world market of transportations [86].

The given project has not been supported by the Government of the Russian Federation [87]. The committee of the State Duma on the budget and taxes, proceeding from the conclusion presented to it from April, 17th, 2007 № 181 \has considered only one of the problem questions lifted in the project - reference of modernisation and (or) re-equipment to operations on processing. As a result offered by the House of Assembly of the Nizhniy Novgorod area the initiative has been dismissed as well by the State Duma of Federal assembly of the Russian Federation. From the analysis of the conclusion of Legal department of the State Duma of Federal assembly of the Russian Federation considering the given bill, it is possible to draw a conclusion, that it has not been see a main objective which was pursued by Legislative Assembly of the Nizhniy Novgorod area in the initiative 2.

Problems of subjective interpretation the Russian Federation against its legislative unambiguity and evidence, and also proceeding practice of collection from ship-owners of the customs duties repeatedly were marked by customs bodies of paragraph 2 of point 1 of article 276 TK and at sessions Socially - the advisory council on customs policy FTS России33.

Thus, despite lacking entering of any changes into the legal regulation containing in paragraph 2 of point 1 of article 276 TK the Russian Federation, in practice there was an approach excluding possibility of clearing of ship-owners from payment of the customs duties from cost of averages and [88 [89] [90] major repairs, executed concerning the Courts of Admiralty outside of the customs territory of the Russian Federation.

According to customs bodies, application of the privilege provided by paragraph 2 of point 1 of article 276 TK the Russian Federation, admitted lawful, if:

- Necessity of performance of repair operations has arisen outside of the Russian Federation and without their performance returning of a vessel to the customs territory of Russia was at a loss or as a whole possibility of its normal and safe operation, without threat and risk of injury both to the vessel, and members of crew (to passengers was excluded at their presence) and to transported cargo. Differently, repair should not be planned to a vessel exit for limits of the customs territory of the Russian Federation;

- The works performed concerning a vessel, had character of operating repair or maintenance service. Thus works connected with modernisation of a vessel or change (improvement) of its technical characteristics in comparison with the factory parametres, costs of a vessel attracting increase - came under to taxation by the customs duties.

Thus, after coming into force of the Customs code of the Russian Federation, despite its appreciation experts [91], disputes concerning application of the privilege containing in paragraph 2 of point 1 of article 276 TK the Russian Federation, proceeded. Their number allows to speak about presence of essential contradictions between ship-owners and customs bodies in which basis as it is represented, absence at the state level of the accurate concept of legal regulation concerning a marine sea fleet laid.

The given conclusion is visually illustrated by a following example. For evasion from payment of customs payments in especially large size, levied from the organisation the Sentence of Lenin regional court of On the Cupid from the May, 14th, 2007, the cassation definition of the Khabarovsk regional court left without change from July, 26th, 2007, had been recognised guilty on point "g" parts of 2 articles 194 of the Criminal code of the Russian Federation the main expert in customs registration of Open Society «Amur shipping company». Further the customs body has charged in addition customs payments and has directed to Open Society «Amur shipping company» the requirement about their payment, appealed by this legal body judicially. Degrees of jurisdiction have satisfied organisation requirements having noticed, that it did not have duty on payment of customs payments in connection with the made works on repair of vessels (i.e. there was a privilege right of use) 1.

The given circumstances specify in absence at courts of justice of unequivocal understanding and the uniform approach in interpretation and pravoprimenenii a privilege containing in article 276 TK the Russian Federation, and testifies to necessity of scientific judgement of financially-legal regulation concerning conditions and the bases of its realisation.

With acceptance of the Customs code of the Customs union [92 [93] which have become effective since July, 01st, 2010, the situation connected with taxation by the customs duties of the Courts of Admiralty repaired abroad and application of a privilege, releasing ship-owners from their payment, has undergone considerable changes. Many positions directive and circulars of customs bodies which were in most cases disregarded by courts of justice, have found the reflexion in the edition of point 1 of article 347 TK the HARDWARE which has defined conditions of clearing of payment of the customs duties at fulfilment abroad of operations on repair of the Courts of Admiralty.

Clearing of payment of the customs duties was given, if concerning temporarily taken out vehicles of the international transportation have been executed:

1) operations on maintenance service and (or) to the operating repair, their safeties necessary for maintenance, operation and maintenance in a condition in which they were at date of export if the requirement for such operations has arisen during use of these vehicles in the international transportation;

2) operations on gratuitous (guarantee) repair;

3) operations on repair, including the major repairs, carried out for restoration of vehicles of the international transportation after their damage owing to failure or action of force majeure which took place outside of the Customs union customs territory.

Thus, existing earlier in paragraph 2 of point 1 of article 276 TK the Russian Federation the positions providing a privilege, releasing ship-owners from payment of the customs duties from cost of operations on repair and (or) to vessel maintenance service, have been added by new compulsory conditions and the restrictions provided now in article 347 TK the HARDWARE.

Changes have mentioned not only conditions of realisation of a privilege, but also a definition of some terms. For example, definition of concept "vehicle" has changed, and also the new term «a vehicle of the international transportation» has been entered - which vehicles for the purpose of the beginning and (or) end of the international transportation of cargoes (passengers or luggage) with being on them the special equipment and spare parts [94] concerned imported or taken out for limits of the customs territory of the Customs union.

To realise a privilege provided by subparagraph 1 of point 1 of article 347 TK the HARDWARE, it was necessary to observe following conditions simultaneously: - the vessel should have the status «a vehicle of the international transportation» and to be temporarily taken out in the order established by the legislation.

- Character of the operations executed concerning a vessel should correspond to operating repair and (or) to maintenance service.

- The executed operations should be directed on maintenance of safety and operation of a vehicle of the international transportation.

- After performance of operations the condition of a sea vessel should not differ from its condition which it had at date of its export for limits of the customs territory of the Customs union.

- The requirement for such operations should arise during vehicle use in the international transportation.

Similar conclusions were formulated and in developing judicial практике1.

Thus, subparagraph 1 of point 1 of article 347 TK the HARDWARE has limited kinds of the operations which fulfilment was released from payment of the customs duties, having reduced them is exclusive to operating repair and (or) to maintenance service provided that the requirement for such operations should arise during use of vehicles in the international transportation [95 [96].

Judiciary practice of this period formulates also a number of the signs excluding possibility of application of the specified privilege. In particular:

- Combination of operating repair and (or) maintenance service with survey of a vessel by the Register;

- Absence onboard a cargo vessel (passengers, luggage) at the moment of occurrence of requirement for fulfilment of the specified operations;

- Absence onboard a cargo vessel (passengers, luggage) at return import of a vehicle of the international transportation on the Customs union customs territory;

- Impossibility of application of subparagraph 1 of point 1 of article 347 TK the HARDWARE concerning the regulated (planned) operations executed abroad etc.

It was promoted by that many new условия1, necessary for realisation of subparagraph 1 of point 1 of article 347 TK the HARDWARE, contained legal blanks, have been insufficiently precisely formulated, or did not consider features of technical operation of the Courts of Admiralty. It as it is represented, has entailed their incorrect pravoprimenenie and has allowed to enter through the judicial interpretation mechanism into legal regulation a number of requirements, not statutory.

The given circumstances have entailed sharp change of a vector of judiciary practice: if earlier, in action of the Customs code of the Russian Federation (2003), the majority of disputes came to the end with satisfaction of requirements of ship-owners and acknowledgement of legitimacy of clearing of payment of the customs duties from cost of the repair executed abroad now, basically, courts refused in satisfaction of such requirements [97 [98] [99] (except for disputes in which frameworks the remedial infringements admitted by customs bodies attracting cancellation challenged актов1 or obvious illegitimacy donachislenija of obligatory payments [100] [101] [102]) took place that involved a duty on payment of the import customs duties and added penej.

However it is impossible to approve, that during this period the accurate concept of collection of the customs duties with executed abroad an opera - tsy on repair and servicing of the Courts of Admiralty has been generated. So, Letter FTS России1 explained the bases of granting of a privilege on payment of the import customs duties concerning the floating vessels registered in the Russian international register of vessels. The given letter is based on the positions resulted above containing in subparagraph 7.1.6. Decisions KTS № 130, point 9 of Decision KTS № 728, and also point 1 of article 75 TK the HARDWARE and point 12 of article 150 of the Tax code of the Russian Federation [103 [104] (further - NK the Russian Federation).

The position of Federal customs service stated in this letter, is reduced to that clearing of payment of the import customs duties is given under condition of a presentation of the documents established by point 9 of Decision KTS № 728, concerning vessels, the vessels registered in the Russian international register:

- Carrying out international carriages and imported on territory of the Customs union after end of a customs procedure of processing out of the customs territory;

- Back imported vessels which are vehicles of the international transportation in which relation operations on repair and (or) other operations which have been not provided by point 1 of article 347 TK the HARDWARE, without their premise under a customs procedure have been made.

From the specified letter follows, that if the vessel is registered in the Russian international register of vessels irrespective of character of the spent repair (maintenance service performance) concerning such vessel and a customs procedure in which it was spent, the customs duties from cost of such operations should not be levied.

The given position repeatedly was declared by customs bodies and at Advisory council sessions on work with participants of foreign trade activities at Far East customs управлении1 on which representatives of customs bodies declared that ship-owners are released from payment of the customs duties concerning operations on operating repair and (or) technical I serve a sea vessel if it is registered in the Russian international register of vessels.

Meanwhile, despite unequivocal instructions FTS of Russia concerning clearing of taxation by the customs duties of the Courts of Admiralty registered in the Russian international register, by manufacture in arbitration courts on the disputes connected with legitimacy of application of subparagraph 1 of point 1 of article 347 TK the HARDWARE, representatives of customs bodies defended a return position that involved acceptance of judicial certificates not in favour of ship-owners.

For example, on business № А42-1976/2016, the court [105 [106] has come to conclusion that according to point 9 of Decision KTS № 728 from payment of the customs duties the vessels imported on territory of the Customs union as the goods are released, instead of a vehicle of the international transportation [107]; on business № А40-152640/15 court [108] has considered, that letter FTS of Russia from February, 21st, 2014 № 01 11/07877 to concrete circumstances of the case in point does not come under to application; on business № А42-9536/2014 the court has dismissed the reference of the applicant to given letter FTS of Russia for the reason that it is not standard

The legal act.

On November, 11th, 2016 the Ministry of Finance of the Russian Federation has published письмо1 in which has stated distinct from FTS Russia the point of view, having noticed, that the fact of registration of a vessel in the Russian international register of vessels and positions of point 7.1.6 of Decision KTS № 130 should not be considered as the basis releasing from payment of the customs duties, provided by point 2 of article 347 TK the HARDWARE.

On April, 11th, 2017 the Euroasian economic union (further - the Union) has been signed by member states the Contract on the Customs code of the Euroasian economic union [109 [110] which has become effective since January, 01st, 2018

Existing edition TK EAESZH, as well as operating earlier customs codes, contains the financially-legal privilege releasing ship-owners from payment of the customs duties at return import on the customs territory of the Union of the Courts of Admiralty belonging to them (temporarily taken out as vehicles of the international transportation), at observance of certain conditions.

So, according to point 1 of article 277 TK EAES outside of the customs territory of the Union with temporarily taken out vehicles of the international transportation fulfilment of following operations is supposed:

1) operations on maintenance service and (or) to repair (except for major repairs, modernisation), their safeties necessary for maintenance, operation and maintenance in a condition in which they were at date of export from the Union customs territory if the requirement for such operations has arisen during use of these vehicles of the international transportation outside of the Union customs territory;

2) operations on gratuitous (guarantee) repair;

3) operations on repair, including the major repairs, carried out for restoration of temporarily taken out vehicles of the international transportation after their damage owing to failure or action of force majeure which took place outside of the Union customs territory.

As concerning last two subparagraphs in action of the previous customs codes of disputes in pravoprimenenii did not arise, the specified conditions in the present work are not investigated.

The analysis of subparagraph 1 of point 1 of article 277 TK EAES allows to draw a conclusion, that its edition practically does not differ from subparagraph 1 of point 1 of article 347 TK the HARDWARE, behind some exceptions. So the circle of the works which performance falls under clearing of payment of the customs duties, first, is expanded: not only flowing, but also average repair. Secondly, the requirement for performance of operations on maintenance service and (or) to current (average) repair should arise outside of the Union customs territory, instead of in the course of the international transportation.

Essentially new position mentioning questions of clearing of payment of the customs duties from cost of operations executed abroad concerning the Courts of Admiralty, point 2 of article 277 TK EAES is. According to it positions of subparagraph 1 of point 1 of article 277 TK EAES do not extend on temporarily taken out as vehicles of the international transportation the water vessels registered in the international registers of vessels of member states [111]. Such vessels can be exposed to operations on their maintenance service and (or) to repair without payment of the customs duties.

However, with the account of that paragraph 1 of point 1 of article 276 TK operating earlier the Russian Federation also initially cardinally changed the approach existing to its acceptance to taxation by the customs duties of back imported vessels repaired abroad, it is impossible to exclude that, as in the course of application of point 2 of article 277 TK EAES of an expert also can show unexpected flexibility [112].

It is represented, that the considered norm of the Customs code of the Euroasian economic union became the successor of legal blanks and defects which contained in a legal regulation of the specified privilege in action of the Customs code of the Customs union, and the changed conditions of its realisation formulated in subparagraph 1 of point 1 of article 277 TK EAES, can entail occurrence of additional problems at its application by ship-owners as these conditions do not consider feature of operation of the Courts of Admiralty.

Stated above circumstance and the facts testify that from the moment of acceptance of the Customs code of the Russian Federation (1993) The legislation regarding clearing of ship-owners of payment of the customs duties from cost of the operations executed abroad concerning the Courts of Admiralty, repeatedly varied, and the compromise and balanced decision satisfying, both private interests of ship-owners, and fiscal interests of the state, have not been reached. As the reason of reforming of the legislation fiscal interests of the state and the purposes connected with revival of national ship-repair branch, instead of any changes in navigation area as in practice of daily technical operation of the Courts of Admiralty practically there were no changes, as a rule, served. However neither that, nor other purpose have not been reached. As a result of spent changes fiscal interests of the state as many ship-owners have continued a re-registration of the vessels in foreign jurisdictions that has excluded possibility of payment by them of taxes, gathering, insurance premium payments in the budget and off-budget funds have not been to the full realised. The ship-repair branch could not reach level, sufficient for satisfaction of requirements of ship-owners under repair and maintenance service that proves to be true not only researches of scientific community in corresponding sphere, but also positions of the Sea doctrine of the Russian Federation.

Stated in the given part of work allows to formulate following conclusions.

Formation of customs regulation of clearing of payment of the customs duties concerning operations on repair and maintenance service of the Courts of Admiralty executed abroad, occurred spasmodically in the absence of the accurate state concept of development of national navigation and its infrastructure at obvious prevalence of fiscal interest.

Repair of the Russian vessels outside of the Russian Federation is a consequence of decline of domestic ship-repair branch which in the present is in a difficult situation and is incapable to satisfy requirements of national ship-owners to the full.

The fiscal component always was characteristic for collection of the customs duties from operations on repair and maintenance service of the Russian Courts of Admiralty, however it became the reason of undesirable economic consequences - transition of domestic ship-owners in foreign jurisdictions, having served as an additional push to stagnation of development not only a national merchant marine fleet, but also ship-repair branch.

Formation of legal regulation of the financially-legal privilege releasing ship-owners from payment of the customs duties from cost of operations on repair and maintenance service, it is possible to divide into 5 stages conditionally:

I stage: 1993 - 2001: introduction of clearing of taxation by the customs duties of gratuitous operations made concerning a vessel (carried out owing to the legislation or treaty provisions), and also the works necessary for its restoration after failure or action of force majeure.

II stage: 2001 - 2003: expansion of sphere of application of the given privilege with the account of features of technical operation of the Courts of Admiralty, distribution of its action on usual operations on repair and the vessel maintenance service, necessary for its safety, the operation, its costs which have not entailed increase in comparison with the book value at the moment of export.

III stage: 2004 - 2010: fastening of the general bases and conditions of clearing within the limits of the uniform document (TK the Russian Federation) and increase in quantity of quarrels at law between customs bodies and ship-owners concerning application of the specified financially-legal privilege.

IV stage: 2010 - 2017: toughening of conditions of realisation of a considered privilege and narrowing of a circle of the operations falling under clearing of payment of the customs duties.

V stage: since 2018: perfection of the financial-legal regulation releasing ship-owners from payment of the customs duties from cost of operations executed outside of customs territory EAES on current (average) repair and (or) maintenance service of the Courts of Admiralty, however formulated without the account of features of their operation.

1.2.

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

More on topic Formation of financially-legal regulation of clearing of payment of the customs duties concerning the Russian Courts of Admiralty:

  1. the Financially-legal nature of clearing of payment of the customs duties concerning temporarily taken out Russian Courts of Admiralty
  2. clearing of payment of the customs duties concerning temporarily taken out Russian Courts of Admiralty as means of maintenance of realisation of functions of the customs duties
  3. MASLY Andrey Igorevich. FINANCIALLY-LEGAL REGULATION of CLEARING of payment of the customs duties Concerning TEMPORARILY TAKEN out VEHICLES of the INTERNATIONAL TRANSPORTATION (ON the EXAMPLE of the RUSSIAN COURTS OF ADMIRALTY). The dissertation on competition of a scientific degree of the master of laws. Saratov -, 2018 2018
  4. principles of clearing of payment of the customs duties concerning temporarily taken out Russian Courts of Admiralty
  5. Chapter 3. Problems of realisation of the right to clearing of payment of the customs duties concerning temporarily taken out Russian Courts of Admiralty
  6. Clearing of payment of the customs duties at fulfilment of planned operations on current (average) repair and (or) to maintenance service of temporarily taken out Russian Courts of Admiralty
  7. Requirement for fulfilment of operations on repair and (or) to maintenance service, as a condition of clearing of payment of the customs duties concerning temporarily taken out Russian Courts of Admiralty
  8. Chapter 1. Theoretical and legislative bases finansovopravovogo regulations of clearing of payment of the customs duties concerning temporarily taken out Russian Courts of Admiralty
  9. the operations necessary for maintenance of a vessel in a condition in which it was at date of export as a condition of clearing of payment of the customs duties concerning temporarily taken out Russian Courts of Admiralty
  10. Chapter 2. Conditions of realisation of the right to clearing of payment of the customs duties in the relation it is temporary vyvezennyhrossijskih the Courts of Admiralty
  11. clearing of payment of the customs duties at fulfilment of operations on current (average) repair and (or) to maintenance service by results of fault detection and survey of temporarily taken out sea vessel
  12. features of financially-legal regulation of an order of calculation, payment and collection of custom charges for storage
  13. TIMAKOVA Tatyana Gennadevna. FINANCIALLY-LEGAL PROBLEMS of REGULATION by the CENTRAL BANK of the RUSSIAN FEDERATION of INTERSTATE CLEARING SETTLEMENTS. The dissertation on competition of a scientific degree of the master of laws. Saratov 2003, 2003
  14. 2.1. Features financially - (nalogovo-) legal regulation of change of a duty on tax payment
  15. the Chapter II. Financially-legal regulation of customs-tariff relations
  16. legal regulation of passage of customs service by employees and federal civil servants of customs bodies of the Russian Federation.
  17. Chapter 2. Features of financially-legal regulation of an order of calculation, payment and collection of custom charges
  18. Alferev Timur Pavlovich. FINANCIALLY-LEGAL REGULATION TAMOZHENNOTARIFNOJ of ACTIVITY AS the SOURCE of FORMATION of the BUDGET of the RUSSIAN FEDERATION the Dissertation on competition of a scientific degree of the master of laws. Moscow -,
  19. § 1. Concept of custom duties and customs-tariff regulation