Журнал ЗАКОН

This paper examines the relationship between tax law and social challenges facing modern Russian society. The author looks at public interests under increased economic pressure on Russia, which includes western sanctions and their impact on tax law. The fight against tax abuse is assessed along this social dimension. Some improvements are suggested for tax relations and public interest protection in the current setting. As the court system is not strong enough to restore the balance between private and public interests, the author asserts that the higher tax authority’s approval is needed to apply the business purpose doctrine or the substance over form doctrine as well as to introduce fiscal rescript and tax ombudsman.

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Keywords: tax abuse, Russian tax policies, business purpose doctrine, substance over form doctrine, balance of interests in tax law, tax incentives

The author looks at the newly incorporated but already overarching principle prohibiting circumvention of tax law in the context of applicable judicial doctrines and historical development of tax law in Russia and corresponding laws in other countries. The research finds that this extraordinary instrument is intended only to stabilise the scope of the underlying provision which they tried to circumvent and does not imply any classification of party’s acts as being unlawful or lawful. The existence of a general anti-avoidance or anticircumvention rule does not suggest it applies to the situations that are governed by specific regulations with similar functions. The author concludes that because of its unreasonably wide application the anti-circumvention doctrine domestically has become a tool to loosen law enforcement and overlook the standard rules regarding evaluation of evidence and interpretation of other general rules of law and procedure.

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Keywords: tax law circumvention theory, abuse of taxpayer´s right, bad-faith taxpayers, scope of exercise of tax rights, unjustified tax benefit

This article deals with the provisions of Article 54.1 of the Russian Tax Code, which has recently taken effect and established the legislative framework relating to abuse of rights in tax relations. The article provides a consistent analysis of conditions (absence of distortions, business purpose and performance by an appropriate party) that should be complied with in order to reduce the tax base and/or tax amount and draws parallels with the positions of supreme judicial bodies. The authors also consider in detail how the new regulation operates in time.

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Keywords: abuse of right, substance over form, business purpose principle, performance of obligation by an appropriate party, retroactive effect

This article analyses the ratio of “unreasonable tax benefits” and new provisions of Art. 54.1 of the Tax Code of the Russian Federation from the point of view of liability under public law, and also considers the extent to which these provisions can be retroactive. The author argues that despite unfavourable court decisions the constitutional interpretation allows for retroactive effect to be attributed to the provision in question and the resulting legal opinions of courts that improve the position of taxpayers.

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Keywords: tax liability, scope of taxpayer´s rights, unreasonable tax benefit, liability, procedural guarantees, retroactive force

This article analyses the recent trends in international taxation in the context of economic globalisation and capital mobility, including changes in the key principles of international taxation. The author also assesses the impact of international tax planning and growth of international tax avoidance on modern states and provides an overview of the key instruments specified in the BEPS Action Plan. The article also provides a review of the Russian legal institutions aiming at prevention of tax avoidance in parallel with global trends, including common aspects and special features of the Russian legal system.

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Keywords: international tax law, international tax planning, BEPS, tax avoidance

The global reform of the OECD Model Convention in 2017 did not affect the definition of the category of abuse of the tax agreement. Such conservatism stems from fundamental reasons. For many decades, lawyers have been trying to formulate a better definition, but this turned out to be akin to trying to get blood from a stone. The value of this category transforms over time and depends on the context of rapidly changing international economic relations. The current version of the definition of this category in a normative act and the method of disclosing the content of this category remains almost the only possible one. The author concludes that based on cross-border tax considerations national interests will be better served by determining DTA abuse through teleological interpretation of the treaty in question, including an analysis of common purposes and underlying policies along with identification of schemes found to be abusive at a given point in time.

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Keywords: improper use of the Convention, treaty abuse, treaty shopping

In this article, the problem of Big Data is examined from the standpoint of civil law in the context of the question whether the existing mechanisms are sufficient for the purposes of civil regulation of Big Data or whether a qualitative review of the system of objects of civil objects, including intellectual property, is required. In the frame of civil discussion, it is proposed to consider Big Data in close connection with new knowledge formation, including on the basis of its analysis, for the purposes of using it in one’s own activity or selling it on the market and, as a result, to qualify Big Data as a special service based on Big Data technology. An emphasis on the “service” focuses attention on the “dynamics” of relations and the subject of regulations. Equally, the inclusion in the concept of indications of “information and analytical” nature and “Big Data technology” highlights the relevant specific features. Commenting on the characteristics of various objects of civil rights, the authors note the impossibility of extending the existing legal regimes to Big Data and suggest the expediency of recognising Big Data as a new non-traditional object of intellectual property. The proposed approach, according to the authors, allows to take into account not only the differentiation of objects of intellectual property in the broadest sense, but also their inherent unity, which is manifested in the granting of special — exclusive — rights to intangible objects being the results of the activity in question.

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Keywords: Big Data, technology, civil rights, intellectual property, database, know-how, non-traditional intellectual property

The article is devoted to the legal status of nonprofit partnerships founded by householders, and to problems of its current regulation caused by the existence of two types of nonprofit partnerships brought in by two different laws. Partnerships provided by those laws are various in the legal status, despite their identical names. One of the mentioned laws loses its validity on 1 January 2019. The author clarifies how the forthcoming changes influence on householders, members of nonprofit partnerships, and suggests the ways to minimize consequences produced by gaps in law.

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Keywords: nonprofit partnerships, gaps in law, cottage communities, non-profit gardening associations, non-profit vegetable-growing associations, non-profit country estate associations

This article analyses the problems associated with the vindication of a part of an object; scope of Art. 304 of the Civil Code of the Russian Federation; and objectability of a premise located on the site of construction in progress. It also establishes the lack of basis to extend the limitation period to the claims for recognition of absence of the registered right to ‘unobjectable’ property, regardless of actual ownership by the plaintiff — the registered owner in possession of immovable property as the rights to such property are violated by the fact of registration of the ownership right to ‘unobjectable’ property.

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Keywords: vindication of part of object, actio negatoria, object of rights, objectability, construction in progress, limitation of action

The author proposes to exclude third parties, who do not declare independent claims regarding the subject of the dispute, from among the parties that court costs are allocated to. Meanwhile the basis for reimbursing court expenses to the third parties not filing independent claims regarding the subject-matter of the dispute should be a court order in favour of the party involving such persons. Thirdparty court costs are compensable within reasonable limits.

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Keywords: court costs, distribution of court costs, third parties, adversarial principle

In 1930, the All-Union Chamber of Commerce established the Maritime Arbitration Commission (MAC). Today, MAC continues its activities, now as a specialised arbitral institution at the Chamber of Commerce and Industry of the Russian Federation and is one of the internationally recognised centres of maritime arbitration. As a rule, arbitral awards rendered in MAC proceedings are performed by the parties voluntarily. However, in some cases, the party to the arbitration proceedings applies at court in order to set the award aside or to issue a writ of execution for enforcement of the award. This paper considers the main arguments relied on by the parties during the consideration of such cases at Russian state courts. Also, the paper summarises the legal positions of the Russian courts of the first, cassation and supervisory instances when considering applications for challenging the awards rendered at MAC.

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Keywords: arbitration court, Maritime Arbitration Commission, challenging arbitral awards

This article looks at different ways of interpreting the principle of lawfulness, principle of fairness and principle of inevitable liability in the literature on general theory and civil jurisprudence. It substantiates the conclusion that civil liability embodies not only lawfulness and fairness but also the principle of inevitability, which implies liability for each committed offence.

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Keywords: legal responsibility, civil liability, principles of liability, principle of lawfulness in liability, principle of fairness in liability, principle of inevitable liability

The article describes the differences between Anglo-American adverse possession and prescription in Russian sense. The author analyses the concept and content of adverse possession in Anglo-American law and justifies why adverse possession in the abovementioned law could not be acknowledged as a prescription in Russian meaning.

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Keywords: possession, factual possession, title, adverse possession, prescription