Журнал ЗАКОН

The article analyses the main changes in international taxation at the beginning of the XXI century. The author highlights the changes in the system of tax international information exchange for individuals and the BEPS project for multinational companies. These changes were caused by the consequences of the 2008 crisis. A system of tax information exchange in digital form based on international tax agreements was built for individuals. To combat corporate international tax evasion, the G-20 and OECD presented a BEPS Action Plan consisting of 15 actions. This Plan is designed to prevent the chaos in international taxation as a result of uncoordinated tax actions of individual states. The main elements of the BEPS Action Plan are traditional anti-avoidance measures without fundamentally changing international tax rules based on taxation of individual companies belonging to multinational corporations. The BEPS Plan contains a new form of reporting, which is based on the assessment of a multinational company as a whole. In the future, the tax attitude towards a multinational company as a single business was developed in the BEPS 2.0 project. The author believes that it is necessary to develop the rules of taxation of multinational companies as a single unit to solve current problems with taxation of such companies.

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Keywords: BEPS, OECD, tax anti-avoidance measures, tax information exchange, international tax treaties

The article examines administrative practice of Russian tax authorities and courts to identify criteria of conduit companies. The authors propose their own classification of the criteria for identifying persons who are not beneficial owners of income, and distinguish two models of conduit companies, both having its own practical implications.

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Keywords: beneficial owner, conduit company, tax abuse, withholding agent

Determining valid tax liabilities is an approach developed by law enforcement practices, according to which, even if a tax offence is identified, the state treasury should receive tax only in the amount determined by the legislature. Above this amount, the arrears are not a tax, but a sanction that is not established by law. But if in recent years this approach has been actively developed and used in practice for domestic transactions, additional tax assessments for cross-border transactions are often made without taking these requirements into account. Reclassification for the purposes of International transactions has already been in the focus of the Supreme Court’s attention, but lower courts apply its legal positions very narrowly – only within the same category of cases. As a result, in the majority of cases, even if there are identified facts and circumstances that allow the true amount of arrears to be determined, law enforcement authorities ignore them. This leads to tax being collected in an excessive amount, and sometimes to double taxation of the same income. There is no reason why the approach that has become generally accepted for domestic transactions could not be applied to persons involved in foreign trade. Arbitrary taxation and the collection of unspecified payments under the guise of tax undermines the confidence of business entities in the tax system and the predictability of law enforcement practice.

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Keywords: valid tax liability, tax reconstruction, cross-border transactions, tax abuse, unfair tax benefit

The article comprehensively covers the problem of collecting cross-border tax debt. The author, based on national legislation, international treaties and law enforcement practice, explores domestic and international legal mechanisms for collecting “internal” (due by foreign/non-resident debtors to the Russian budget system) and “external” cross-border tax debt (due by Russian/resident debtors to the budget of a foreign state), identifies difficulties in their implementation and ways to solve them.

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Keywords: arrears, tax debt, territoriality, tax jurisdiction, tax sovereignty, taxing right, tax recovery

This article aims to shed light on intersection of transfer pricing and customs valuation, when it comes to dividends, and explores how transfer pricing documentation can serve as a protective measure against the inclusion of dividends in the customs value of imported goods under the Transaction Value Method of customs valuation. Specifically, the article addresses how the approach to including dividends in the customs value differs between the EAEU Customs Code and the WTO Agreement on the implementation of Article VII of the GATT 1994: what is the prevailing court interpretation regarding the inclusion of dividends in the customs value, and how transfer pricing documentation can mitigate the risk of inclusion of dividends in the customs value of imported goods using the Transaction Value Method.

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Keywords: Customs value, dividends, transfer pricing, proceeds of any subsequent resale, of the imported goods, customs valuation, adjustments to the price, arm’s length principle

The article focuses on rules regulating who is entitled to treaty benefits under Russian tax treaties. Tax treaty benefits cover all mechanisms of elimination of double taxation, guaranties and mechanisms of protection of taxpayer’s rights available under a double tax treaty. Entitlement to tax treaty benefits may be studied widely – as covering all rules of double tax treaties and national legislation on applicability of a certain benefit, and in a more narrow way – as covering just applicable anti-avoidance rules. The focus is on analysing the rules specifically aimed at discouraging abuse of benefits – the principle purpose test and the simplified benefit limitation provision. The principle purpose test is considered in more detail as a general anti-avoidance rule for applying tax treaty benefits.

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Keywords: double tax treaties, benefits, principle purpose test, limitationon- benefits provision

The strengthening of interstate partnership between Russia and China inevitably affects the expansion of international cooperation between the business of the two countries. In this regard, we can detect both previously repeatedly encountered and new problems in the application of double taxation treaties with the PRC (2014) and Hong Kong (2016). Based on the results of the study of law enforcement practice, the main legal problems are traced that are relevant today for Russian and Chinese companies when doing business, creating joint ventures and other forms of economic cooperation. It is concluded that the actual possibilities for justifying the application of a reduced 5% rate based on the Double taxation treaty with the PRC are largely limited. It is all because of the conditions of unprecedented sanctions pressure on the Russian economy and the inevitable reaction of Chinese banks which are forced to refuse to open special accounts for depositing authorised capital to Russian companies and citizens. Despite this, the friendly Chinese jurisdiction allows to achieve the main tasks facing Russian and international business.

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Keywords: international taxation, tax law of the People’s Republic of China, the law of the People’s Republic of China, avoidance of double taxation, income tax, PRC

Execution of international treaties on cooperation in the area of hydrocarbon supplies is of great importance for the purposes of developing state economy and receipt of tax revenues into the budgetary system. The article considers examples of such treaties, as well as tax provisions contained therein. The author notes that the inclusion of tax provisions in international treaties on cooperation in the area of hydrocarbon supplies contributes to the implementation of important infrastructure projects and the growth of tax revenues. The article also examines the establishment of excise duty on natural gas in the tax legislation.

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Keywords: international treaties, hydrocarbon supplies, tax provisions, tax benefits, oil and gas budget revenues, excise duty on natural gas, citizens’ welfare

In this article the author intends to develop and justify the uniform approach to utilisation and application of the provisions of the conventions on avoidance of double taxation which specify the regime of taxation of particular types of income and capital (property). Stemming from the factors giving rise to double (multiple) taxation, the author examines the mechanisms of elimination of double taxation contained therein and the legal technicalities employed to lay down such mechanisms in the tax treaties. Furthermore, the author elaborates on his vision regarding the possible commonly shared algorithm that could eliminate or minimise the errors in utilisation and application of the distributive rules of the double taxation treaties taking into account peculiarities of terminology and wording of the treaties as well as the systematic approach of treaty drafters to the formulation of distributive rules (rules establishing the specifics of the tax treatment of certain types of income and capital) contained therein.

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Keywords: double taxation treaties, distributive rules, avoidance of double taxation

The article discusses a case in which the Civil Cassation Department of the Ruling Senate affirmed the principle of locus regit actum in relation to one of the most essential transactions for the society of that time – the bequest of patrimonial immovable property.

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Keywords: Ruling Senate, private international law, patrimonial property, testamentary succession

The article is devoted to the virtual digital persons which often replace the traditional natural or legal persons in the WWW. It creates the problem of correlation between the first and the latter which can not be ignored by the law. According to the Civil Code anonymous activity is highly restricted. Acquisition of rights under the name of another person is, as a rule, prohibited. Meanwhile, under public law rules the anonymous activity is recongnised more widely. So the rule of the Civil Code needs correction. Virtual digital person may be an image (a copy) of a certain person (traditional natural or legal person) or a fictitious one. Сopyright law knows such a notion as the character in a work of art, literature, etc. The latter and the notion of virtual digital person partly coincide. Quite often virtual digital persons are created and used in the Internet by persons not possessing the image which is reproduced. Therefore, the problem of defending the right to personal image in the WWW arises. It requires amendments in the regulation of personal nonproperty rights in Russia.

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Keywords: Virtual digital person, anonymous, character in a work, right to personal image, personal immaterial rights

The November Legal Chronicle presents professional opinions on the issues of qualifying the Palestinian-Israeli conflict under international law, finding a balance between forest protection and urban planning of settlements, and another round of discussion of arbitrability of disputes over real estate rights in the rulings of the Constitutional Court.

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Keywords: international law, Palestinian-Israeli conflict, forest law, urban law, arbitrability of disputes, real estate right

The article contains a detailed analysis of the Ruling of the Constitutional Court of the Russian Federation of 18 April 2023 No. 18-P, which is devoted to the procedure for transforming shared ownership of buildings, structures and premises intended for the placement of vehicles, into the right of ownership to parking spaces as independent real estate objects. The author believes that the said Ruling contains significant inaccuracies in the description of the current legal regulation and in the understanding of correlation between shared ownership of these objects and a new real estate object for our legal system – parking spaces. He calls into question the correctness of declaring unconstitutional part 3 of Art. 6 of the Federal Law of 3 July 2016 No. 315-FZ, as well as the possible future legislative prohibition of shared ownership in facilities intended for the placement of vehicles. He argues that the abolition of the preemptive right to purchase in case of shared ownership in these objects will lead to the disappearance of the motivation for the participants in shared ownership to re-register their shares into parking spaces.

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Keywords: parking space, shared ownership, pre-emptive right to purchase, real division, allocation of a share

The paper examines the embodiment in Russian legislation of the idea of non-criminalisation of an act committed within the framework of law enforcement. The study covers the time span between the Code on Criminal and Correctional Punishments in the edition of 1885 and the present time. Special attention is paid to the Criminal Code of 1903, the draft of which was discussed with unprecedented involvement of interested parties, carefully checked as never before, and in which the considered circumstance of non-criminalisation of an act is formulated as broadly as possible. In the course of the research the unsolved problems of modern legislative regulation are revealed and the corresponding questions requiring their solution are formulated.

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Keywords: Criminal Code of 1903, Criminal and Correctional Punishment Code, circumstances excluding criminality of an act, execution of law, execution of duty, execution of power, exercise of right, criminal law

The paper presents the differences in the legal scholars’ attitudes on the acceptability of jury trial in Russian legal system. Based on qualitative observations in district courts and expert conversations with law enforcement officers and judges, a sceptical attitude towards jury trials is revealed. This scepticism was tested in a questionnaire survey of legal scholars in 2022 (3,766 Russian authors registered in the Russian Science Citation Index were included). Statistically significant differences were found in the opinions on jury trial among those legal scholars who have experience in law enforcement and the court system (30 and 27%, respectively, have a negative attitude towards this institution) and as defence lawyers (14% of negative opinions). Among those who continue their professional activities in these status, the differences are even higher. With former law enforcement officials representing a third of the legal academy and legal education in Russia, and former defence lawyers representing less than a tenth of it, the scepticism about jury trials is expected to spread further.

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Keywords: legal academy, legal profession, professional attitudes, jury trial

The image of the judiciary has an independent value characteristic. In the case of the formation of social representations by the judiciary, we are talking about legal meanings, the legal form of perception of reality through the implementation of judicial information policy, the presentation of the judicial community in the public space, the actions of judges and their public assessment by the judicial community itself and the society as a whole. Mediatisation of social space and the judiciary emphasises issues that seem to be related to the private sphere of a judge’s life – that is, his participation in social networks. The society is interested in the ethics of a judge from the point of view of the possibility of making higher demands to the bearer of power. But to what extent it is justified and whether ethics in general changes in the postmodern society are questions, the answers to which may affect the further development of the judiciary as an institution and its legitimisation in society.

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Keywords: judiciary, ethics, reputation, mediatisation, legal communication, information technology

This article is dedicated to the figure of the defender, particularly, the execution of criminal procedural function laid upon him. For the purpose of the development of criminal procedural science, the author proposes to consider the criminal procedural function of the defender through its content, which depends on criteria, set by the criminal procedural law. The concept of the participant of the criminal proceedings is examined, and the conclusion about the need to amend Article 49 of the Criminal Procedural Code is made.

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Keywords: criminal procedural function, defence function, defender in the criminal proceedings, advocate, the purpose of the criminal proceedings, competition

The article is devoted to the way the domestic legislator at the federal and regional level approaches the issues of sustainable development. The article provides a brief analysis of the concept of sustainable development, its isolation and transformation into specific goals – Sustainable Development Goals (SDGs) proposed by the UN. The article analyses federal normative legal acts affecting sustainable development. Based on the results of the analysis of federal regulatory legal acts, it is concluded that despite the correct basic premise in Article 75.1 of the Constitution, which may well become the basis for the implementation of sustainable development in other regulatory legal acts, the regulation remains abstract and archaic. In addition, the legal acts regulating sustainable development are of a methodological nature rather than prescriptive. The basic hypothesis that sustainable development regulation can be characterised as chaotic and unsystematic was confirmed. As a possible solution to this situation, the author proposes the development of a roadmap for the introduction of the concept of sustainable development in regulatory and legal acts.

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Keywords: sustainable development, sustainable development goal, ESG

This paper attempts to investigate the issues of legislative regulation of criminal liability for anticompetitive agreements in the USA, Canada and Great Britain for the purpose of drafting proposals for improvement of the domestic legislation and law enforcement practice.

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Keywords: cartel, anti-competitive agreements, restricting competition