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§ 3. A role of participants of the tax obligation in business about bankruptcy. Influence of the persons participating in business about bankruptcy, on the maintenance of the tax obligation

Specificity of a subject of legal regulation predetermines also features of subject structure of the relations arising within the limits of bankruptcy. The structure of the persons participating in business about bankruptcy, is wide enough (item 34 of the Law on bankruptcy): the debtor, the competitive creditor, the arbitration managing director, the authorised bodies, some other persons.

Besides, representatives of workers of the debtor, the proprietor of property of the debtor, founders (participants) of the debtor, participants of meeting or committee of creditors participate in relations, and also others (item 35 of the Law on bankruptcy) with laws of procedure.

The resulted subject structure differs from participants of tax legal relation: the tax creditor and the tax debtor.

The tax creditor is not identical to the authorised body which realises competences of the creditor in business about bankruptcy, and also represents it on other public payments. Execution of the tax obligation is carried out in favour of the tax creditor, instead of body of public authority [96].

The debtor in bankruptcy can be as the debtor on obligatory payments (not only the tax bearer), and the tax agent, bank, the guarantor or the depositor (item 73, 74 NK the Russian Federation), and also subsidiarno or solidary responsible person (item 49, 50 NK the Russian Federation).

The state expresses inconsistent will in certain degree, on the one hand, has unconditional competence to demand obligation execution, and on the other hand, limits itself. It is shown in declaration as the state of principles of harmony, equality and proportional distribution of the bankrupt's estate at satisfaction of requirements. The Obshchegrazhdansky sequence of satisfaction of requirements of creditors (item 855 GK the Russian Federation) is modified in business about bankruptcy. With a view of maintenance of the maximum and equal satisfaction of requirements of creditors (including represented the authorised bodies) by the state provide the moratorium on charge of percent, peni and other property sanctions after introduction of this or that procedure applied in business about bankruptcy. In the same purposes the state target dates for a presentation of requirements about inclusion in the register of creditors of the debtor, providing to the diligent creditor possibility to receive satisfaction before other creditors who have made corresponding demands outside of target dates. It is necessary to notice, that concerning the authorised bodies representing the tax creditor, since September, 1st, 2016 the additional guarantees expressed in the form of increased term for a presentation of requirements (six months instead of two) have been entered, and since January, 1st, 2017 large powers are given to collect an outstanding shortage under taxes and tax collections from the supervising debtor of persons outside of bankruptcy. In our opinion, the resulted changes of the legislation partly level the purposes of procedures of bankruptcy - to give the chance to the debtor to begin with "blank leaf" (fresh-start), but, on the other hand, provide fiscal interest of the state and deprive of unfair tax bearers of possibility to use bankruptcy procedures in [97 [98] quality of the tool of evasion from shortage repayment. In a press corresponding bills have been scarified, as have actually transformed bankruptcy into «the low-percentage tax credit».

The figure of the tax creditor in affairs about bankruptcy has a number of the discriminating lines, allowing to speak about updating of the tax obligation and some features of a legal regime of the taxation.

Possibility of participation in the tax obligation of several creditors at distribution of tax payment between several budgets becomes complicated the status of the authorised (tax) body representing not only on tax payments, but also under other public requirements carried by the law to the same turn of satisfaction, as the requirement of the tax creditor. The authorised body competence on participation in business about bankruptcy can be opened through concepts «obligatory payment» and the "authorised body", fixed in item 2 of the Law on bankruptcy. In particular, the authorised body also defends interests of off-budget funds, other enforcement authorities on payments corresponding to them and obligations (performing gathering, payments for negative influence on environment and so forth) And also expresses will of subjects of the public law concerning private-legal obligations - debts under the state contracts and the state guarantees. Thereby, the legislation on bankruptcy not only influences the time of performance of the tax obligation own means, but also establishes frameworks for realisation of will of the tax creditor, delegating the competence on protection of various obligations to one person.

The important participant of tax relations in affairs about bankruptcy is the authorised body (tax organ). Within three months from the date of coming into force of the Law on bankruptcy of 2002 execution of functions both regulating, and the authorised body was assigned to Federal service of Russia on financial improvement and bankruptcy [99].

Further the Government of the Russian Federation has established, that the authorised body remains FSFO to Russia, and regulating body, since March, 3rd, 2003 the Ministry of Justice of the Russian Federation [100] is. In 2004 FSFO Russia it is abolished, functions on acceptance of standard legal acts in the established field of activity are delegated to the Ministry of economic development and trade of the Russian Federation, and function on representation of interests of the Russian Federation in bankruptcy procedures - FNS Russia [101 [102].

The powers of the tax organ fixed in NK the Russian Federation, change in business about bankruptcy both from the point of view of fundamental laws and duties, and from the protsedurno-remedial point of view. Standard regulation of powers of tax organs in inconsistency sphere is carried out now by the Government of the Russian Federation.

Taking into consideration «obligatory payment», fixed in item 2 of the Law on bankruptcy, and also special competence FNS, it is possible to conclude concept, that bankruptcy directly influences subjects of the tax obligation. Tax organs realise will of the tax creditor not because are body of the special competence of sphere of taxes and tax collections, and owing to other special competence - the authorised body representing public subjects in procedures of bankruptcy.

Subsidiary or solidary execution of the tax obligation in the presence of pledge (item 73 NK the Russian Federation) or guarantees (item 74 NK the Russian Federation) on occasion has negative value for the public interest of the tax creditor. Such execution can be challenged as the transaction with infringement of sequence of satisfaction of requirements of creditors or with preference in relation to the creditor of the same turn on the basis of positions of item 61.3 of the Law on bankruptcy, despite of social value and the purpose of execution of the tax obligation.

The maintenance of tax obligations change from an order established NK the Russian Federation, at the expense of influence of norms of the Law on bankruptcy by which special consequences of introduction concerning the tax debtor of this or that procedure applied in business about bankruptcy are provided, for example, owing to item 126 of the Law on bankruptcy from the moment of opening of procedure of bankruptcy proceedings cease to be charged all penal actions, including peni under taxes.

Tax obligations in affairs about bankruptcy are modified under times of performance and in the order of maintenance primenitelno to all types of tax, operating on territory of the Russian Federation (the VAT, the profit tax of the organisations, NDPI, the tax to property of the organisations, the transport tax, the land tax, and also special tax modes: USN, ENVD etc.). Thus features of a legal regime of the taxation concerning tax agents-bankrupts are shown is not so expressed.

With reference to the tax to incomes of physical persons, considering item 1, 9 items 226 NK the Russian Federation, it is necessary to conclude, that the debtor is the tax agent to whom the duty on deduction of the added sum of the tax from incomes of the tax bearer is assigned at their actual payment and to transfer in the budget. Thus payment of the tax at the expense of means is not supposed

Tax agents.

The sums of the tax withheld by the tax agent are not property of the debtor, therefore do not constitute the bankrupt's estate. The debtor executes the relative obligation to make execution of a tax duty for other person.

Being guided by items 2 and 5 items 134 of the Law on bankruptcy, and also item 207, item 226 NK the Russian Federation, it is possible to conclude, that the arbitration managing directors who are carrying out payments to workers, continuing the activity in bankruptcy procedures, are obliged to make deduction NDFL and simultaneously to transfer into the corresponding sum the budget. In this connection arbitration managing directors on occasion are considered as tax agents instead of the debtor-bankrupt.

Concerning the tax to the added value the tax obligation of the foreign organisation which are not consisting on the account in tax organs as tax bearers, is executed by the tax agent (item 161 NK the Russian Federation). To similarly legal regulation on NDFL, the withheld sum of the tax does not join in the bankrupt's estate of the tax agent as is not its own money resources.

As original feature of legal regulation concerning the tax agent-bankrupt absence of updating of such tax obligation as a result of introduction of procedures of an inconsistency acts. At the same time, the duties executed by tax agents under the VAT and NDFL, are submitted to bankruptcy influence that is shown in updating of times of performance of duties on payment peni and penalties for untimely transfer in budgetary system of the Russian Federation of the sums of the basic tax obligation. The given conclusion is based that failure to meet a date of transfer of the withheld tax in the budget is the independent tax offence made by the tax agent, hence, payment peni and the penalty is made in an order established by the legislation on bankruptcy.

The similar legal regime is applied to banks and the credit organisations (being in bankruptcy procedures), executing instructions of tax bearers and tax organs.

Derivative tax bearers, such as the guarantor or the depositor can fulfil duties instead of the tax bearer - of the bankrupt or independently is in bankruptcy procedures. It is fair to notice, that the updatings of the tax obligation considered above a situation on subject structure are characteristic and for derivative tax bearers. However in a case with tax pledge, in our opinion, updating of the maintenance of the tax obligation on a way of execution from the monetary form on the property is possible.

Despite the revealed features of a legal regime of the taxation in affairs about bankruptcy of the organisations, from the subject and the maintenance, it is necessary to establish conditions of updating of the tax obligation, that the obligations model of mutual relations is constructed on interrelation of the tax creditor and the tax debtor. At the same time, the general discharge of duties by the tax debtor and acceptance of such execution by the tax creditor in business about bankruptcy should be adjusted with legitimate interests of other participants of business about bankruptcy, and on occasion participants of process on business about bankruptcy.

It is necessary to recognise, that neither arbitration court, nor the arbitration managing director, other participants of business about bankruptcy cannot be participants of the tax obligation. Nevertheless the specific role of arbitration court, the arbitration managing director in updating of the tax obligation consists in the following.

In the scientific literature discussions took place, an occasion to which became realisation by court of unusual control functions behind activity of arbitration managing directors, consideration of complaints to them, the statement of their reports [103]. In our opinion, the arbitration court role in business about bankruptcy is one of displays of the state intervention, but without the fiscal purpose.

Unlike juridical facts which independently generate debt relationship, the judicial certificate is a component of the difficult set of facts of legal relation. For example, the court ruling about the statement of the agreement of lawsuit (including on obligatory payments) produces new debt relationship. Judicial

Definition is not the independent juridical fact,

Generating the tax obligation, but obliges the debtor to execution early an existing duty.

Other example of the judicial certificate influencing already existing obligation is the decision on opening of bankruptcy proceedings which modifies the obligation the moratorium on charge peni, replacing with their percent (item 2.1 of item 126 of the Law on bankruptcy).

Definition about the statement of the agreement of lawsuit can affect the maintenance of the tax obligation regarding change of the time of performance of the tax obligation by means of giving time of repayment of debts, and also regarding the subject of the tax obligation, in that case when execution for the tax debtor makes the third party.

In the light of legislation changes judicial certificates about the termination of procedure in the absence of the source of finance or about bankruptcy proceedings end are the precondition of occurrence of legal relation between the authorised body and persons supervising the debtor.

Thus, the taxation legal regime is modified in affairs about bankruptcy of the organisations, and separate judicial certificates act as juridical facts for produtsirovanija obligations tax relations of new type. First, in cases of the conclusion (statement) of the agreement of lawsuit providing a delay (instalments)

Discharges of duty on debts repayment on obligatory payments, and also at participation in maintenance of execution of its conditions of the third parties, secondly, in attraction situations to the subsidiary liability of the supervising debtor of persons.

Judicial certificates on affairs about bankruptcy can be the basis of the termination of the tax obligation. For example, definition about end of bankruptcy proceedings as a result of calculations with creditors. According to item 9 of item 142 of the Law on bankruptcy of the requirement of the authorised body, not satisfied because of insufficiency of property of the debtor, are considered as the extinguished. Under the general rule operating till 2017, extinguished the requirements of the authorised body not declared in arbitration court or recognised as arbitration court unreasonable, under condition of absence of the bases for the subsidiary liability of supervising debtor of persons are considered also.

Speaking about influence on the tax obligation of the judicial certificate about phase-out on business about bankruptcy in connection with absence of means for compensation of court costs on carrying out of the procedures applied in business about bankruptcy, it is impossible to approve, that the obligation stops. In practice the difficult legal structure with reference to this case is developed.

Point 3 of article 45 NK the Russian Federation provides the open list of the bases of the termination of the tax obligation by execution. As special way of the termination of a tax duty the recognition of a shortage hopeless for collecting (item 59 NK the Russian Federation) acts. The specified norm does not connect a hopeless shortage for collecting with the judicial certificate about dismissal of action about bankruptcy because of insufficiency of the source of finance of court costs on business. We will notice, that judiciary practice identifies write-off of hopeless debts for collecting under taxes and tax collections with the basis of the termination of tax obligations [104].

Write-off of a tax shortage, outstanding as a result

Phase-out on business about bankruptcy, owing to absence of means for payment of court costs it is supposed only after the reference in service of judicial police officers-executors and the termination executive

Manufactures [105].

Thereby the conclusion proves to be true, that the judicial certificate is included into difficult legal structure of the termination of the tax obligation, but is not the independent basis for its termination.

It is necessary to differentiate consequences of acceptance of the ruling of dismissal about bankruptcy and decisions on end of procedure of bankruptcy proceedings concerning the tax obligation: in the first case the obligation, at performance of some the subsequent actions, stops behind impossibility of execution, and in the second, it is considered executed irrespective of actual payment.

Important there is a question on value of the judicial certificate on a recognition of the transaction of the debtor void (Head III.1 of the Law on bankruptcy) obligations under the VAT or the profit tax of the organisations can be which consequence.

Concerning tax consequences of void transactions of the tax bearer, D.M.ShChekin specifies, that as a result of transaction contest the tax obligation does not arise, as initially exists irrespective of the maintenance which the parties have enclosed in the transaction [106]. It is necessary to recognise, that during application of procedures of an inconsistency for tax organs much more powers for a training for a new profession grazhdanskopravovyh transactions (actions) of the debtor not only under item 45 NK the Russian Federation, but also on item 61.2 item, item 61.3 of the Law on bankruptcy.

The judicial certificates accepted in affairs about bankruptcy, can be the basis of occurrence of tax obligations of the debtor as a part of difficult legal structure, and also are the basis of the termination of the tax obligation. Hence, the arbitration court role is important, but even it does not allow to allocate with its independent status of the participant of the tax obligation at bankruptcy of the organisation.

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A source: Izvekov Stanislav Sergeevich. of FEATURE of the LEGAL REGIME of the TAXATION AT the INCONSISTENCY (BANKRUPTCY) of the ORGANIZATION. The dissertation on competition of a scientific degree of the master of laws. Ekaterinburg. 2018

More on topic § 3. A role of participants of the tax obligation in business about bankruptcy. Influence of the persons participating in business about bankruptcy, on the maintenance of the tax obligation:

  1. the Mortgaging status of the authorised body under the tax obligation in business about bankruptcy
  2. § 2. The tax obligation in affairs about an inconsistency (bankruptcy): the basic lines and conditions of updating of a legal regime of the taxation
  3. the guarantee, execution of a tax duty by the third parties in the procedures, applied business about bankruptcy of the organisation
  4. § 1. Execution of tax obligations in business about bankruptcy
  5. features of a legal status of participants of tax legal relations as subjects of the tax obligation
  6. the tax obligation - a component of the public obligation
  7. separate questions of execution by the tax bearer of obligations in bankruptcy procedures on an example of the VAT and the profit tax of the organisations
  8. 1.1. A duty on payment of the tax and the tax obligation: concept, essence, parity problems
  9. a parity of "a tax duty» and «the tax obligation»: the generaland private
  10. 2.2. The maintenance of institute of the tax obligation and its place in system of the fiscal law of the Russian Federation
  11. a circle of persons, participating in business, on the isolated disputes.
  12. § 3. Protection of the rights of the tax creditor in affairs about bankruptcy of the organisation