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§ 1. Incomes of budgets of budgetary system of the Russian Federation

Budget incomes - a basis of realisation of financial activity of public subjects as at the expense of a profitable part there is a financing of account obligations of the state and municipal unions. At the development present stage finansovopravovoj sciences of a problem of theoretical studying of concept and classification of incomes of budgets to the full keep the urgency that is caused by objectively occurring process of complication of the interbudgetary relations, to leading collisions in pravoprimenitelnoj to practice of distribution of incomes between budgets of budgetary system of the Russian Federation, and also insufficiency of own profitable sources of budgets of subjects of the Russian Federation and municipal unions.

Public subjects can receive incomes from various sources - all depends from objectively developing sotsialnoekonomicheskih relations, model of conducting a national economy, a level of production, and also priority directions of the state financial policy for this or that period of time. All it causes that fact, that the financially-legal doctrine about incomes has undergone eventually considerable changes.

In due time I.I.Janzhul defined incomes as the material means necessary for satisfaction of requirements of the state [4], and specified that all sources of public revenues can be divided into two classes:

1) private-legal - the incomes received by the state owing to the free certificate from citizens, owing to unilateral or the bilateral contract;

2) socially-legal incomes - the incomes, gathering the state from citizens owing to the compulsory certificate from its party [5].

G.F.Shershenevich specified that the state can extract the income as the private owner. The given sphere of relations is regulated by civil law. At the same time «when the state resorts in getting of means to the power and takes incomes by enforcement - here already area of the financial right» [6 [7].

Domestic pre-revolutionary scientists divided socially-legal incomes into three kinds: regalia, duties and taxes.

The modern doctrine about incomes of the state budget in many respects is based on works of the Soviet scientists. A special role in studying of the theory of budgetary incomes works of professor S.D.Tsypkina which many positions remain actual and till now have played. So, the specified scientist divided incomes of the state budget to following signs:

1) on social and economic character;

2) on sources of formation and forms of receipt of means;

3) on methods of withdrawal of means;

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4) on concrete conditions of their accumulation and use.

On social and economic character incomes of the state budget were subdivided on two groups: incomes of a socialist economy and receipt of the population. Division on sotsialnoekonomicheskomu S.D.Tsypkin's to sign considered as the core, as it, on

To its opinion, considered various character of groups of incomes, their size and

About

Budgetary value.

On sources of formation the scientist allocated:

1) the incomes arriving directly from the state enterprises and the organisations (customs incomes here concerned);

2) incomes of the state-owned properties and grounds;

3) incomes of rendering by official bodies and

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The organisations of paid services.

Depending on concrete conditions of accumulation and use of incomes of the state budget of S.D.Tsypkin divided them on:

1) returnable and transient;

2) vozmezdnye and gratuitous;

3) the general and target [8 [9] [10].

The analysis of positions of work «in perfection of financial activity of the Soviet state» allows to say Financially-legal institutes, their role also that S.D.Tsypkinym was allocated one more classification of incomes:

1) the planned;

2) collateral incomes.

Last group it joined also the customs duties. As specified S.D.Tsypkin, «having certain purely financial value (a source of budgetary incomes), these payments are characteristic a special orientation - protection of economic interests of the state, material damage compensation, the account and registration of certain kinds of property» [11].

Lately in a science the set of approaches to concept definition «budget incomes» was offered. For example, O.V.Boltinova defines budget incomes as the structural part of the budget providing sources of receipt of payments in a fixed capital of money resources - the budget - on an irrevocable and gratuitous basis according to budgetary classification. Definition of incomes of the federal budget similar on the sense has been given in R.N.Cherlenjaka's dissertational research. Incomes of the federal budget, according to the given author, represent «the money resources arriving in the federal budget as a result of distribution and redistribution of the national income for the purpose of creation of a financial basis of activity and maintenance of account obligations of the state which are formed for the account of means of the organisations, physical persons and other sources provided by the legislation of the Russian Federation».

A.I.Khudyakov especially underlined necessity of differentiation of such concepts, as the public revenue and the budget income:

1) public revenues are the part of a cumulative public product created by the state enterprises and establishments, and also turned in the course of distribution and redistribution of this product through various kinds of monetary receipts in the property of the state for the purpose of creation of the financial basis necessary for financing of activity of the state;

2) budget incomes are the money resources arriving in monetary fund, intended for financing of nation-wide problems and functions on the central budget) and local levels (local budgets) [12 [13] [14].

Thus, concepts public revenues and budget incomes correspond as the general and whole - the first arrive in budgets of all levels, off-budget trust funds and funds of the state enterprises, the second - only in budgets.

According to the legal definition fixed in item 6 of the Budgetary code of the Russian Federation [15], under budget incomes it is necessary to understand money resources arriving in the budget, except for the means which are according to BK the Russian Federation sources of finance of a budgeted deficit.

A.G.Paul shows most package approach by concept consideration «incomes of budgets». In its opinion, incomes of budgets can be considered:

1) as monetary (budgetary) means, i.e. in material sense. Such approach is considered by A.G.Paulem as the basic as «property relations constitute a basis of budgetary-legal regulation. In this connection property objects budgetary-legal relations should have priority fastening in the budgetary legislation» [16];

2) as a profitable part of the corresponding budget. Such understanding constitutes legal sense of incomes. It includes two aspects: prognoznyj (the predicted volume of incomes) and planned (specifications of deductions of incomes in other budgets and interbudgetary transfers;

3) as the economic relations connected with formation of money resources of the budget on a gratuitous basis (economic sense of incomes).

Let's notice, that, in our opinion, incomes of budgets have one more aspect of the understanding which it is conditionally possible to name "system" - they can be considered as a component of system of the budgetary law which forms the body of rules, regulating public relations concerning formation of incomes of the federal budget. In such aspect «budget incomes» represent budgetary law institute.

Thus, the category «incomes of budgets» (or «budgetary incomes») is rather versatile, it finds absolutely various aspects of the understanding that causes certain complexities at its studying, and also classification of types of income.

Besides led above approaches of classification of incomes of the budget, in a science other bases of their division into kinds are offered also. So, on an order and conditions of transfer of incomes allocate:

1) own incomes;

2) regulating incomes.

According to the definition fixed earlier in item 48 BK the Russian Federation, regulating incomes of budgets were understood as federal both regional taxes and other payments on which specifications of deductions (in percentage) in budgets of subjects of the Russian Federation or local budgets for the next fiscal year are established, and also on a long-term basis (not less than for 3 years) by different kinds of such incomes. Meanwhile since January, 1st, 2005 the given article has lost the validity.

Depending on a link of budgetary system in which there is a transfer of incomes, allocate:

1) incomes of the federal budget;

2) incomes of budgets of subjects of the Russian Federation;

3) incomes of municipal unions.

According to legally fixed in BK the Russian Federation classification, incomes of budgets are subdivided into three kinds: [17]

1) tax incomes;

2) not tax incomes;

3) gratuitous receipts.

Thus for allocation of similar incomes difficultly enough (if at all it is possible) to find the unique criterion of classification [18 [19].

According to item 2 of item 41 BK the Russian Federations to tax incomes of budgets concern incomes from provided by the legislation of the Russian Federation on taxes and tax collections of the federal taxes and gathering, including from the taxes provided by special tax modes,

Regional and local taxes, and also penej and penalties on them.

In turn, according to item 3 of item 41 BK the Russian Federations not tax incomes admit:

- Incomes of use of the property which is in the state or municipal property, except for property of budgetary and independent establishments, and also property of the state and municipal unitary enterprises, including state;

- Incomes of property sale (except actions and other forms of participation in

The capital, the state stocks of precious metals and jewels), being in state or municipal

Properties, except for property of budgetary and independent establishments, and also property of the state and municipal unitary enterprises, including state;

- Incomes of the paid services rendered by state establishments;

- The means received as a result of application of measures grazhdanskopravovoj, administrative and the criminal liability, including penalties, confiscations, indemnifications, and also the means received in compensation of harm, caused to the Russian Federation, subjects

The Russian Federation, to municipal unions, and other sums of compulsory withdrawal;

- Means of self-taxation of citizens;

- Other not tax incomes.

On the basis of item 4 of item 41 BK the Russian Federations concern gratuitous receipts:

- Grants from other budgets of budgetary system of the Russian Federation;

- Grants from other budgets of budgetary system of the Russian Federation (interbudgetary grants);

- Subventions from the federal budget and (or) from budgets of subjects of the Russian Federation;

- Other interbudgetary transfers from other budgets of budgetary system of the Russian Federation;

- Gratuitous receipts from physical and legal bodies, the international organisations and the governments of the foreign states, including donations.

Let's consider in more details a question on criterion of classification of incomes.

If to accept for similar criterion «fixedness of payments in the legislation on taxes and tax collections» we can allocate only two kinds: tax and not tax incomes - to gratuitous receipts the similar criterion is inapplicable, as at division on such basis gratuitous incomes, proceeding from logic laws, will concern to nenalogovym.

If to take criterion "vozmezdnosti" we also could allocate only two types of income:

1) vozmezdnye incomes;

2) gratuitous incomes (receipts) [20 [21].

Thus, as we see at fastening of legal classification of incomes (item 1 of item 41 BK the Russian Federation), the legislator has been admitted a logic error - division has been made not on one basis. We consider, that would be more correct to fix following classifications of incomes:

1) depending on criterion vozmezdnosti: vozmezdnye and gratuitous incomes;

2) depending on criterion of fixedness in the legislation on taxes and tax collections: tax and not tax incomes.

Meanwhile legal classification leaves also other questions.

First, a number of the incomes carried to tax and not tax, inherently are gratuitous. Most brightly it is shown on an example of the tax, which according to item 8 of the Tax code of the Russian Federation (further - NK the Russian Federation) is «obligatory individually gratuitous payment».

Also receipts concern gratuitous incomes from application of measures tax, civil-law, administrative and the criminal liability as in this case there is no counter granting - the specified payments are collected in connection with infringement by a current legislation guilty party.

Secondly, causes a question the term «tax incomes».

So, on the basis of item 50 BK the Russian Federations to tax incomes of the federal budget in addition concern:

- Regular payments for mining operations (royalty) at performance of agreements on section of production in the form of hydrocarbonic raw materials;

- Regular payments for mining operations (royalty) on a continental shelf, in the exclusive economic area of the Russian Federation, outside of territory of the Russian Federation at performance of agreements on production section;

- Gathering for using objects of water biological resources;

- State Tax (except for a State Tax coming under to transfer in budgets of subjects of the Russian Federation and local budgets and specified in articles 56, 61, 61.1 and 61.2 BK the Russian Federation).

The specified kinds of payments are not taxes. It would Seem in this case it would be possible to apply criterion «fixedness of payments in the legislation on taxes and tax collections». Meanwhile NK the Russian Federation establishes a collection order only gathering for using objects of water biological resources (chapter 25.1 NK the Russian Federation) and a State Tax (gl. 25.3 NK the Russian Federation).

In turn, as it is defined in item 3 of item 43 of the Law of the Russian Federation from 21.02.1992 № 2395-1 «About bowels» the sizes of regular payments for using bowels at performance of agreements on production section (which as it has been defined above, concern tax incomes of the budget), conditions and an order of their collection at performance of agreements on production section are established by agreements on production section. Thus, the size of the specified payments is established not by the legislation on taxes and tax collections and at all the normative act, and the agreement on production section.

Considerable interest within the limits of a question considered by us is represented by the explanations given in Definition of the Constitutional Court

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The Russian Federation from 10.12.2002 № 284 in which positions of item 16 of the Federal act from 10.01.2002 № 7-FZ «About protection surrounding [22 [23] have been analysed

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Environments », establishing, that negative influence on environment is paid. As has specified the Constitutional court of the Russian Federation,« payments for negative influence in environment as a necessary condition of reception legal bodies and individual businessmen of the right to carry out the economic and other activity having negative influence on environment, are obligatory public payments (in frameworks financially-legal relations) for realisation by the state of actions for preservation of the environment and its restoration from consequences of the economic and other activity, making negative impact on its within the specifications of such admissible influence established by the state. They carry individually-vozmezdnyj and compensatory character and are by the legal nature not the tax, and fiscal gathering »[24 [25].

In the separate opinion the judge of the Constitutional court of the Russian Federation And. G adzhiev specifies that «the norm containing in article 57 of the Constitution of the Russian Federation [26 [27], supposes various interpretation. It is possible to assume, that the given norm demands, that all public fiscal payments were established by the state in a type of tax and gathering. From this point of view all such payments can exist only in two legal forms - the tax and tax collection.

Other interpretation according to which the state can establish any other, not tax payments is admissible also. Such approach based on an admissibility of existence of not tax payments, not being neither taxes, nor the gathering named in the Tax code of the Russian Federation, also has received reflexion in Definition of the Constitutional Court of the Russian Federation from December, 10th, 2002 ». Thus,

The constitutional court of the Russian Federation actually recognised possibility of an establishment of not tax payments which are not neither taxes, nor gathering.

Let's agree with G.A.Gadzhiev in argumentativeness of the possibility of allocation of a special sort of not tax payments. We will notice only that according to item 51 BK the Russian Federation the payment for negative influence on environment concerns not tax incomes of the federal budget and it is enlisted in it under the specification of 20 percent.

Nevertheless without dependence from the decision of a question on possibility or impossibility of allocation of a special kind of not tax payments we can draw a conclusion about ushcherbnosti the legislative technics at reference of those or other payments to number tax or not tax. So, if we recognise possibility of allocation of a special kind of not tax payments, to the legislator followed include in structure of not tax incomes regular payments for mining operations at performance of agreements on production section. If we do an opposite conclusion (about impossibility of allocation of such special sort of not tax payments) in structure of tax incomes followed include a payment for negative influence on environment. Thus, now the position of the legislator concerning criteria of reference of payments to number tax remains not clear.

In a science attempts to formulate definition time and again were undertaken

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Not tax incomes.

So, according to V.A.Karasev, not tax incomes are voluntary and obligatory, vozmezdnye and the gratuitous payments having equivalent character, not included in system of taxes and tax collections, [28] states arriving in the property [29 [30] [31]. Such definition, in our opinion, does not answer criterion of internal consistency: antonyms voluntary/obligatory, vozmezdnye / gratuitous it is possible to replace with a word "any". Besides, not all not tax incomes carry «equivalent character», that in particular concerns to the income of penal character.

As defines H.V.Peshkov, not tax incomes are the financial resources received by the budget of corresponding level of budgetary system of the Russian Federation by means of collection of not tax payments both turned into the property and the order of the state for the purpose of creation of financial base which serves functioning of the state authorities and provides performance of their problems on

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To realisation of state-legal building ». The given author actually does not open the maintenance of such concept, as« not tax payments », and their features.

Cand.Econ.Sci. S.N.Rukina considers, that not tax incomes «represent diverse payments (duties, gathering, payments, penalties), the states arriving in the order and municipal unions from use and sale of property, rendering of paid services of equivalent and penal character. Unlike the first definition in the given definition the mention of penalties already contains. However and it causes essential censures:

- There is a question, that means S.N.Rukina under the "payment" term, as in one normative act the made definition does not contain (payments is first of all gathering, without dependence from the decision of a question on possibility of allocation of the special "fiscal" gathering which are not entering into system of tax payments);

- From the specified definition follows, that the state and municipal unions render certain «paid services of penal character»;

- Not all payments have equivalent or penal character is, in particular, concerns the customs duties.

S.J.Bozhenok sees the basic criterion of differentiation of tax and not tax incomes in a method of their collection. In its opinion, tax incomes are formed as obligatory, individually gratuitous with the special form of payment consisting in transition of a part of incomes of any proprietor in the property of the state. Other sources of the income of the budget are not tax incomes. The given criterion, in our opinion, does not open discriminating features tax and

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Not tax payments.

As we see, all above-stated definitions are not deprived lacks and reduced to that not tax incomes are the money resources (financial resources) arriving in the order of the state from payment of not tax payments.

At the same time the specified authors actually do not open value of such concept as «not tax incomes». The analysis resulted above definitions gives the basis to say that at a formulation of concept of not tax payments can be given:

- Negative definition, through the formulation «disconnect in system of taxes and tax collections»;

- Positive definition, by means of allocation of criteria,

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Helping to carry those or other payments to number not tax. [32 [33] [34]

Among the criteria distinguishing not tax forms of mobilisation of financial resources from tax revenues, S.N.Rukina lists the following:

First, the order of their establishment of calculation and collection is regulated by a complex of standard documents;

Secondly, for separate not tax incomes concrete rates, terms of payment, a privilege and other tax elements are not defined;

Thirdly, variety of not tax payments does not carry obligatory and regular character, is levied on a voluntary basis;

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Fourthly, not tax incomes rigidly are not planned.

On it we can tell, that:

1) the order of calculation and collection of tax incomes also, is regulated by the whole complex of normative acts which should not be reduced exclusively to NK the Russian Federation (most brightly it is shown on an example regional and local taxes);

2) for such tax income as «regular payments for mining operations (royalty) at performance of agreements on production section» at standard level also are not defined concrete rates;

3) we agree that criterion of that a number of not tax payments has voluntary character really helps to delimit them from tax payments. Nevertheless it is possible to tell and the return: a number of not tax payments nevertheless carries a binding character that does not help to delimit them from the tax;

4) a State Tax as the kind of the tax income, also rigidly is not planned.

Here there is one more problem connected with concepts "payment" and "income". As it is marked in a science of the financial right, payment [35] can be made only in monetary форме36. Besides, if we start with the definition given in item 6 BK the Russian Federation, "income" also can be received only in the monetary form. Whether it is necessary then to recognise as the income of receipt of not monetary character, for example the heirless property. Abundantly clear, that the answer to this question is simple - yes, follows. However close interpretation of legal definition of the income does not allow to give such answer with unambiguity.

In a science it is noticed, that construction of the harmonous scientifically proved concept of not tax incomes is interfered at once by some circumstances:

- First, not tax incomes are rather non-uniform;

- Secondly, entering into the budget of not tax payments is regulated by numerous normative acts of a various branch accessory (not only financially-legal) owing to what their any unification is hardly possible;

- Thirdly, receipt of incomes of use of property and rendering of paid services provide practically all without an exception public authorities and local government, and also budgetary establishments, that considerably complicates problems on mobilisation of such means;

- Fourthly, not tax incomes are extremely diverse;

- Fifthly, owing to absence sistemnosti and logic unity of not tax incomes is problematic to generate data "general part"

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Institute.

Thus, proceeding from all aforesaid we can tell, that unique criterion for otgranichenija tax incomes from not tax now is the will of the legislator. It is connected with [36 [37] that at fastening of classification of incomes of budgets of budgetary system by the legislator logic errors have been committed, and also neuchteny general-theoretical positions of a financially-legal science about the nature of a various kind of payments therefore a number of tax payments has been carried to number not tax and on the contrary. Hence, not tax incomes are those types of income which have not been carried by the legislator to number of tax incomes and gratuitous receipts.

In a context of a considered problem special value, in our opinion, has a question on customs duties reference to number of tax or not tax incomes. Now according to item 51 BK the Russian Federation the customs duties and custom charges concern not tax payments and are enlisted in the federal budget under the specification of 100 percent.

Let's notice, that the question on legal nature of the customs duties (which, in our opinion, is an indirect tax version), will be considered more low in more details. Nevertheless, within the limits of the given paragraph we believe necessary to compare a rule of reference of the customs duties to those or other types of income of the state budgets under the legislation of the state-participants of the Customs union.

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According to item 1 of item 24 of the Budgetary code of Byelorussia (further - BK RB) in the given country incomes of budgets are classified on following groups:

1) tax incomes;

2) payments on the state social insurance;

3) not tax incomes;

4) gratuitous receipts.

In turn, on the basis of item 2 of item 24 BK RB tax incomes include: [38]

1) republican taxes, gathering (duties), local taxes and gathering and other tax incomes established by the President of Byelorussia and (or) laws;

2) peni, added for untimely payment of taxes, gathering (duties);

3) percent for using a delay and (or) instalments of payment of taxes, gathering, customs payments and peni, the tax credit [39].

The customs duties and custom charges (item 1.12 of item 30 BK RB) in addition concern tax incomes of the republican budget [40].

It is necessary to notice, that item 1 of item 11 of the Budgetary code of Republic Kazakhstan [41 [42] (further - BK RK) includes budget incomes in more general category - "receipts". In turn, budget receipts are incomes, the sums of repayment of budgetary credits, receipts from sale of financial actives of the state, loans.

Incomes share BK RK on:

1) tax revenues;

2) nenalogovye;

3) receipts from fixed capital sale;

4) receipts of transfers.

On the basis of item 4 of item 11 BK RK tax revenues are taxes and other obligatory payments in the budget, established Tax and Customs Republic Kazakhstan codes.

In item 5 of item 11 BK RK the Kazakh legislator had been undertook attempt to formulate definition nenalogovyh which obligatory, transient payments in the budget are, established BK the Russian Federation and other acts of Republic Kazakhstan, except provided by the Tax code of Republic Kazakhstan, the customs legislation of the Customs union and (or) the Republics Kazakhstans which are not concerning receipts from sale a fixed capital, the connected grants, and also the money transferred in the budget on a gratuitous basis, except transfers.

Thus, and the budgetary legislation of Byelorussia, and the budgetary legislation of Republic Kazakhstan the customs duties and custom charges concern tax incomes of the budget.

In this connection we consider, that in the conditions of the Customs union Russia, Belarus and Kazakhstan should aspire to unification not only the customs, tax and currency legislation, but also the standard legal acts regulating budgetary relations, regarding reference of the customs duties and custom charges to number of tax incomes of the budget.

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A source: Alferev Timur Pavlovich. FINANCIAL AND LEGAL REGULATION OF CUSTOMS TARIFF ACTIVITY AS A SOURCE OF THE FORMATION OF THE BUDGET OF THE RUSSIAN FEDERATION Thesis for the degree of candidate of legal sciences. Moscow 2014. 2014

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