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Ноябрь 2022



Chief editor’s column



Interview of the issue


Topic of the issue

D.M. Schekin New Challenges Facing Russia and the Response to Them in Tax Policy
The article analyses the tax policy of the Russian state at the present stage through the prism of new challenges that Russia faced in 2022 after the start of a special military operation on the territory of Ukraine and the introduction of restrictive measures against Russia, its citizens and organisations by unfriendly states. The author concludes that the tax policy does not fully consider new challenges and does not provide an adequate response to them. The author suggests a number of measures to improve the tax policy of the Russian Federation. In particular, it is proposed to support with tax measures the volunteer movement that supplies military personnel, refugees, as well as persons in need of assistance in the combat zone, a proposal is formulated to increase the non-taxable subsistence minimum for military personnel and civil servants in the new territories of the Russian Federation. Tax measures are also proposed to reduce the use of unfriendly states in settlements and as a means of saving national currencies, tax measures are formulated to stimulate the transfer of assets to Russia, as well as to support living standards of citizens.
Keywords: tax, tax policy, special military operation, tax regulation
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V.M. Zaripov Unwarlike Taxes
The emergency situation requires a re-examination of standard views and approaches, the search for extraordinary tax solutions. The author examines various aspects of taxation and tax law that have become relevant in connection with the extraordinary circumstances in which Russia has found itself. The following issues are considered: the correlation of military duty and everyone’s obligation to pay taxes, the need for a clear distinction between criminal and noncriminal in the tax sphere, the possibility of reducing antagonism in tax relations and the transition to a system of mutual loyalty of the state and taxpayers.
Keywords: tax system, types of taxes, double taxation, the concept of crime, the concept of an offence, the concept of an abuse of law, public danger, antagonistic relations, risk-oriented control, motivation of taxpayers, tax capital
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G.A. Esakov Tax Crimes: Fine-Tuning of Liability in 2022 and Afterwards
The author analyses the recent amendments to the Criminal Procedure Code related to legal procedure of initiating criminal cases in tax sphere. Since March 2022, a criminal case on tax evasion may be initiated only on materials sent to an investigative authority by tax authorities. However, with introduction of the new order, there are still some unclear points related to concrete steps which should be conducted under the new order and to future investigative activity. Further, the author analyses some draft laws related to criminal liability for tax evasion. Firstly, the draft law on criminalisation of systematic preparation of falsified VAT documents is analysed. This draft law was sent back to its authors but highly likely, it will be enacted soon. So, the objective elements of the new crime are analysed in advance. Secondly, three draft laws are analysed related to amending substantive criminal and criminal procedure legislation on punishment for tax evasion, criminal criteria of tax evasion, etc. The author concludes that all these amendments are welcomed as clarifying the issues of criminal liability for tax evasion.
Keywords: tax evasion, VAT, tax investigation, initiating of a criminal case, preliminary investigation
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A.B. Berberov, M.S. Volkov On Multilateral Tax Treaties: OECD’s Pillar One and Russian Tax Policy
This article is devoted to the prospects for the development of the OECD’s Pillar One through the proposed principles of the distribution of tax rights between the participating countries. Achieving this goal involves reviewing the experience of using multilateral tax treaties, carrying out a critical analysis of the provisions of the OECD’s Pillar One, including for compliance with the principles of distribution of tax rights laid down within OECD’s Pillar One, the fundamentals of Russian tax policy. Based on the experience of the administration of multilateral tax treaties, the authors found that their effectiveness directly depends on the harmonisation of the economic interests of the participants and the formation of internal consistency of the provisions. Using a set of general scientific methods it was revealed that the principles of distribution of tax rights used in the OECD’s Pillar One may not fully meet the interests of the participating countries, creating a significant potential for the occurrence of tax disputes. Based on this, from the standpoint of a systematic approach, the authors have identified both the advantages and risks of Russia’s potential accession to the OECD’s Pillar One.
Keywords: multilateral tax treaties, OECD Pillar One, distribution of tax rights, tax dispute resolution, tax system
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K.A. Nepesov, A.A. Oshurko Structural Shifts in the Global Tax Landscape — Pillar 2 Project
Tectonic changes are under way, the global tax landscape is transforming swiftly. Under the auspices of the OECD, the BEPS project has been implemented. The purpose of the project is to combat tax challenges arising from the digitalisation of the economy, as well as to establish global minimum level of effective tax rate. OECD/Group 20 Inclusive Framework is the main coordinating body responsible for the implementation of the Two-pillar solution. The article provides an analysis of evolution of the Pillar 2 project, current status and the prospects in the context of global challenges
Keywords: BEPS, BEPS 2.0, global minimum tax, global tax reform, international tax, minimum tax, MNE, Two-pillar solution, Pillar 2
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O.A. Nogina Pre-audit Analysis of Taxpayers’ Activities as an Independent Form of Tax Control
Currently, pre-audit analysis has acquired particular relevance in the current control activities of tax authorities, the legislative regulation of which is expected to be implemented in the near future in the Tax Code. The proposed study examines the constitutional and legal foundations of tax control, which are the basis for creating a legislative framework for pre-audit analysis, and also provides scientific points of view on the problem of legal regulation of pre-audit control activities of tax authorities. The article notes the need to provide guarantees to taxpayers when forcing them to submit updated declarations and pay additional taxes based on the results of pre-audit analysis. The author suggests several models for embedding such analysis in legally regulated forms of tax control.
Keywords: pre-audit analysis, tax control, on-site tax audit, risk-oriented approach
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A.G. Matveev Tax Benefits as a Measure of Stimulating the Economy. Law Enforcement Issues
From the very beginning of the domestic tax system formation a significant proportion of disputes with tax authorities give raised from the use of various types of tax incentives by taxpayers, primarily granted by lawmakers to stimulate the economic development of certain industries and regions and modernisation of the national economy. The developed law enforcement practice on this matter so far objectively indicates the existence of a conflict between the publicly declared goals of introducing tax incentives and the real possibility of their use by taxpayers, regardless of the absence of tax abuses. The purpose of the study was to identify the key grounds of such a conflict and the mechanisms for its resolution. Based on the results of the analysis, the author concludes that the basic causes of said conflict are both the narrow definition of the term «tax benefit» envisaged in para 1 of Article 56 of the Tax Code of the Russian Federation, and the abstraction of law enforcement authorities and courts from the in-depth study of the goals and objectives pursued by lawmakers upon introduction of those incentives. The author believes that the resolution of the conflict is possible on the basis of finding of a balance between a formal and substantive approach to assessing the eligibility of the application of tax benefits based on a number of universal principles expressed by the Supreme Court of the Russian Federation in a number of recently adopted judicial acts. The article also contains an overview of the application of some of the most common tax benefits, which can be used in practice.
Keywords: tax, tax incentives, tax benefits, principles of taxation, exemption, motivation, objectives, goals, public interest, universal, Supreme Court, regional investment project
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A.G. Legeyda, A.A. Ryabov The Tax Concept of “Business Fragmentation”. Legislation Has Changed, Problems Remain
The article is devoted to the problems that arise when tax authorities and courts apply the concept of «business fragmentation». On the example of this concept, a lack of certainty in the separation of various types of illegal actions is emphasised, such as abuse of tax rights, tax offenses, tax crimes. The lack of clear criteria for the artificial fragmentation of a business raises the problem of the fairness and legitimacy of additional tax charges, fines and penalties. Some contradictions of law enforcement practice are analysed, as well as shortcomings of Art. 54.1 of Tax Code.
Keywords: tax disputes, business fragmentation, artificial division of business, art. 54.1 of the Tax Code of the Russian Federation, abuse of tax law, tax offense, tax crime, tax reconstruction
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O.S. Morozova, A.I. Berman New Regulation of Special Administrative Regions
The article investigates the goals of creating and functioning of zones of preferential taxation — special administrative regions (SAR), which are located on the territory of the Oktyabrsky island (Kaliningrad region) and Russian island (Primorsky Territory). Initially, the SAR was conceived as an alternative to European low-tax jurisdictions to encourage businesses with Russian roots to move to the Russian Federation. Due to the change in the foreign policy situation, the mode of functioning of the SAR has undergone significant changes and has become, first of all, a tool that allows to protect Russian business and assets from sanctions, as well as to receive significant tax benefits in exchange for investing in the development of your own business and the SAR region. The article analyses the chronology of legislative changes in terms of the functioning of the SAR and the number of benefits provided, considers the pros and cons of the current regime, and the question of who might be interested in moving to the SAR.
Keywords: tax incentives, redomiciliation, special administrative regions, international company, international holding company, deoffshorisation, sanctions, economic presence
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Judicial practice. Comments

Yu.V. Baygusheva On the Falsification of the Pledger’s Signature and Representation without Authorisation (Commentary to Court Decisions in Case No. 49-KG20-26-K6)
The author comments on the court decisions in case No. 49-KG20- 26-K6 based on German doctrine and judicial practice and comes to the conclusion: in case of falsification of the pledger’s signature on the disputed «pledge (hypothecation) agreement», the written form is respected; the falsifier acted as a representative without authority; and an authorized representative of the mortgagor approved the «pledge agreement» through the execution of this agreement — disposition transaction that is aimed at creating a right of pledge. The article notes the fallacy of the position of the court of first instance. In the new consideration of the case, the court did not take into account that between the parties there is a relationship of representation without authority and did not apply Art. 183 of the Civil Code.
Keywords: ple dge agreement, hypothecation, dis position transaction, forged signature, representation without authority
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Theory and practice

O.P. Pleshanova Partial Conscription аnd Corporate Relations
The article examines the partial conscription of individuals involved into business and its impact to the corporate relations. The author analyses the latest legislation providing appointment of a proxy. The substantial problems are legal status and liability of the proxy as well as liability of a conscriptor who objectively loses the ability to control the conduct of business. The author concludes that the transmission to mobilisation economy requires the fundamental revision of the almost 30-year Russian Corporate Law. The attempt to tune it by fragmentary rules entails a great number of practical problems.
Keywords: partial conscription, corporate relations, conduct of business, individual entrepreneur, proxy, corporate control, indirect action, person controlling the debtor, State registration, bankruptcy, liability, subsidiary liability
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R.R. Valiev Negotiability of Conditional Suspensive Obligations
This article is a development of the author’s concept of duality of the property status of the parties to a conditional suspensive obligation. It analyses the negotiability of conditional suspensive obligations on the one hand as possible future obligations, on the other hand as existing chances and risks. Herewith, the emphasis is made on chances and risks due to their almost complete ignorance in the literature. The conclusion is grounded that the policy and practice of handling chances and risks from conditional suspensive obligations should be aimed at limitation of negotiability of such chances and risks.
Keywords: conditional obligation, conditional claim, conditional debt, chance, risk
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M.N. Rovnyagina Significance of the subject of a civil contract for the qualification of the limits of contractual regulation
The article sets the task of systematic consideration of the category of the subject of a civil contract, both in relation to the content of this concept and its modeling value for determining the limits of contractual regulation of civil relations. The article considers the current approaches in the legal literature regarding the understanding of the subject of the contract, formed on the basis of monistic and pluralistic concepts of the object of civil legal relations. Based on this analysis, the position on the need to distinguish the concept of the subject of the contract and the object of the contractual relationship is reflected on the basis of judicial practice. The significance of this category for contractual practice and civil rights protection is revealed. An approach to understanding the modeling role of the category of the subject of a civil contract, which determines its systemic significance for determining the limits of freedom of expression of the will of its parties, is proposed. The article considers the limits of freedom to determine the subject of a civil contract, which determine the possible scope of the content of the contract, the contractual relationship as a whole, and suggests an approach to determining the levels of regulation of the limits of freedom to determine the subject of a civil contract.
Keywords: civil law contract, subject of contract, object of contractual legal relationship, monistic, pluralistic concepts of the object of civil legal relations, freedom of contract, property, non-property rights
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Sun Fan The State as a Trust Manager of Public Property Rights
In public investments there is a contradiction «one property — two rights», when the government and the citizen simultaneously have the right of ownership. In view of this, the article provides an interpretation of trust legal relations in the structure of public investment. According to the interaction of rights and power factors in the trust structure of public investments, there are many complex relationships inside and outside the trust structure, six statuses of three entities, including the principal, the trustee and the beneficiary. In the case of the government, there are simultaneously three types of identity of subjects, which are the key factors leading to the existence of twelve types of complex relationships within and outside the state structure of the investment trust. These complex relationships reveal the main reasons for the instability of public investments and identify factors of external influence on them. In this connection, maintaining the stability of trust legal relations is a choice in favor of a system with a greater social orientation. This system should return to the essence of the rights of public investment behavior, eliminate imperious consciousness and thinking, focus on regulating the status of a trustee in public investments, and also force or encourage the government to maintain proper rationality in investments at the expense of inexpensive institutional investments.
Keywords: public investments, trust structure, subject of law, subject of authority
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Foreign experience

M.V. Kratenko Product Liability Rules in Russian Legislation: Great Potential or Mass of Contradictions?
The article provides a comparative analysis of the Russian and foreign law on product liability issues. The author concludes that on a number of key points (the concept of «product», the liability of seller as well as manufacturer, the shortened list of grounds for exemption from liability) the Russian model of liability for defective product is much more pro-consumer than its analogues in foreign law. However, this leads to some difficulties in law enforcement. At the same time, the broad definition of defective products as any goods, works and services (including immovables, professional services, etc.) leads to conflicts with other grounds of liability, as well as to the excessive application of the product liability rules. The equal liability of the manufacturer and the seller to the consumer, provided by the Russian law, regardless of the seller’s influence on manufacturing process, seems unfair and not typical for the legislation of foreign countries. Finally, the limited list of circumstances in Art. 1098 of the Civil Code exempting the manufacturer or seller from liability, formulated without considering modern technologies of production and promotion of goods, autonomy of some goods or their universal purpose (suitability for personal and professional use), can also lead to an unfair distribution of risks between the manufacturer and the consumer. The above negative aspects point to the need to reform the institute in question, including the clarification of its scope.
Keywords: consumer, defective product, strict liability, design and manufacturing defects
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D.V. Tarikanov Foreign Judgments Ruled on the Status and Legal Capacity in the French Legal System
The world practice of the special privileged position of foreign judgments on the status and legal capacity which consists in their exemption from the necessity of being previously recognised that exists also in Russia, has its origin in France where on the base of the fundamental decisions of the Court of Cassation was created the still existing exception to the rule of preliminary recognition of foreign judgments for their having legal effect in France. On the ground of such foreign judgments can be made the entries in the French civil register. The examination of such foreign judgments can be made either incidentally as a preliminary question on which depends the outcome of other proceedings in a French court, or as the recognition of a foreign judgment which is not necessary, but also not excluded, or, finally, as a special claim for declaratory ruling that such foreign judgment had no legal effect in France. This experience has found echoes in the Russian legislation and can be used to fill gaps and eliminate ambiguities in Russian law.
Keywords: recognition and enforcement of foreign judgments, foreign judgments, judgments ruled on the status and legal capacity, France, application for refusal of recognition and enforcement of a foreign judgment
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