Magazine content за Август 2013 г.
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Август 2013















M.A. Rovinsky Limits of Permissible Tax Planning: History and Current Trends
The author investigates the main stages of formation of the doctrine of fight against tax offenses in the Russian judicial practice. In particular, the author covers issues of limits and consequences of requalification of taxpayer transactions after receipt of unjustified tax benefit and business split. The author concludes that currently there exists no uniform approach to dealing with typical methods of tax avoidance; the legislation does not define limits and scope of application of various instruments to fight abuse that leads to ambiguity of consequences of application of one or another legal instrument.
Keywords: tax planning, tax abuse, good faith taxpayer, unjustified tax benefit, business split, requalification of transactions, reconstruction
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A.V. Razgildeev Development of Pre-Trial Order of Tax Disputes Settlement
Based on the analysis of the laws, judicial practice and provisions of foreign law, the article highlights the main advantages and shortcomings of the existing Russian procedure for regulatory pre-trial settlement of tax disputes. The author describes problems raised by the recent amendments to the regulation of pre-trial procedure and still remaining unsolved, such as inconsistencies of the pre-trial and trial stages of appeal, particularly in examining evidence, inadequacy of pre-trial appeal.
Keywords: administrative procedure, pre-trial appeal, decision of a tax authority
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P.A. Popov Event of the Year in Tax Administration: Commentary to Resolution of the Plenum of the Supreme Commercial Court of the Russian Federation on Application of Part One of the Tax Code of the Russian Federation
The author analyzes the most important elucidations contained in the recent Resolution of the Plenum of the Supreme Commercial Court of the Russian Federation On Interpretation and Application of Part One of the Tax Code of the Russian Federation. They concern the procedure of tax audits, collection of tax payables and resolution of disputes with tax authorities in commercial courts. The author comes to the conclusion that broad interpretation of the Arbitration Procedural Code of the Russian Federation represents the greatest threat in the Resolution for law-abiding taxpayers.
Keywords: tax audit, indebtedness, tax agent, tax dispute, pre-trial disclosure of evidence
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Yu. O. Lukhovskaya Some Aspects of Protection of the Right to Use the Results of Intellectual Activities
The article examines the problem of recovery by copyright holders of compensation for breach of exclusive rights. The author concludes that the existing legal practice leads to abuse committed by rights holders. According to the author, the practice requires improvement. In particular, the seller shall only be held responsible for counterfeits in case the manufacturer cannot be held liable thereof.
Keywords: right to use the results of intellectual activities, protection of the right to use the results of intellectual activity, civil liability in the field of exclusive rights
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V.G. Borodkin Option Agreement in Draft Amendments to the Civil Code
The article is dedicated to the option agreement - a novel which may soon appear in the Civil Code of the Russian Federation. The author substantiates the position of developers of the Project of amendments to the Civil Code, according to which the option may be provided to the holder without any compensation. Analyzing the option nature, the author concludes that the right acquired by the option holder is not secondary.
Keywords: option agreement, the Civil Code of the Russian Federation, option premium, irrevocable offer, corporate agreements
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P.G. Goroshina Appropriation of the Pledged Property by the Pledgee in Domestic Judicial Practice
The article discusses the problem of appropriation of the pledge by the creditor. Based on the Federal Law On Mortgage, the author describes two distinct mechanism of enforced collection of the mortgaged real estate: enforced collection by initial appropriation of the pledge by the creditor and by the sale of the pledged property on a public auction with the possible appropriation of the pledge after invalidation of the second public auction. Following the analysis of practice of courts of general jurisdiction, the author concludes that courts fail to distinguish between the two mechanisms.
Keywords: real estate collateral (mortgage), appropriation of the pledged property, public auction
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O.V. Levchenko Practice of Investigation of Tax Crimes
Based on the analysis of legislation and law enforcement practice, the author highlights a number of unsolved problems in the sphere of investigation of tax crimes. In particular, due to a conflict between the Criminal Code and the Criminal Procedural Code of the Russian Federation, individuals released from criminal liability for tax offenses fall under different legal statuses. In case the individual indemnifies the state at the stage of preliminary investigation, he/she cannot be exempted from criminal responsibility for commission of another tax offense under that ground, as opposed to a person indemnifying the damage before initiation of the criminal proceedings. Another problem that remains unsolved is the use of materials provided by tax authorities revealing facts of concealment by taxpayer of money or property, levy on which shall be made to collect arrears, in the absence of decision on bringing to tax responsibility.
Keywords: tax crimes, exemption from criminal liability, materials of tax audits
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