Журнал ЗАКОН

Tax law is an antithesis of the emergency. The constitutional principles of taxation are aimed at preventing the collection of revenues, although ‘very necessary’ for the budget, but undermining economic and social stability. The amendments to the Tax Code, which allow the establishment of taxes of ‘one-time nature’ — that is, in essence, emergency taxes, — contradict the systemic foundations of fiscal activity. Tax and legal measures to respond to acute situations are necessary, but they should not be accompanied by the destruction of legal foundations. The connivance in this matter, which is observed now, is fraught with serious systemic problems in the future.

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Keywords: tax law, one-off taxes, extraordinary taxes, principles of taxation

The author considers the processes and phenomena occurring and emerging in the Russian tax reality amid foreign sanctions. The concept of tax capital has confirmed its relevance and viability. The historical excursion and the demographic crisis enable to return to the discussion of the tax on small families. The current VAT calculation procedure actually encourages late payment and needs to be changed. The harsh environment threatens to erode universally recognised principles of taxation.

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Keywords: incentivising function of taxation, childlessness tax, VAT, accrual method, taxation principles

The article analyses various measures of tax support for innovation activities provided for in Russian legislation. Based on data on the share of financing of innovative developments in the structure of domestic GDP in comparison with the leading countries of innovative development, it is concluded that it is necessary to triple such financing in Russia. The thesis is set forward about the need to create a federal tax deduction for R&D with the allocation of funds through the mechanism of digital financial assets to startups at universities and research institutes.

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Keywords: innovations, tax incentives, scientific research and development, criteria for the innovation of the economy, federal tax deduction, digital financial assets

The article examines the formation of the Russian system of tax antiavoidance measures in terms of adapting the experience of other countries and international organisations. Anti-avoidance measures of national tax legislation and international tax treaties, judicial concepts are investigated. The study shows a significant degree of borrowing foreign experience in the implementation of special antievasion tax measures and a weak appeal to foreign experience in the development of general tax anti-avoidance measures.

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Keywords: general anti-avoidance rules, special anti-avoidance rules, international tax treaties, Tax Code, transfer pricing, thin capitalisation, beneficial right to income, unjustified tax benefit

The article reveals the specifics of the functioning of tax monitoring as a form of tax control designed to improve the quality of interaction between taxpayers and tax authorities, replace traditional audits and reduce the administrative burden on business. Law enforcement practice is scrutinised, the study of which proves that tax monitoring, although having its advantages, contains some drawbacks, weaknesses and gaps. On the whole, they prevent the making of a predictable and stable tax framework for business activities.

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Keywords: administrative burden, motivated opinion, tax administration, tax audit, tax control, tax monitoring, tax responsibility

The author considers the tool proposed by the legislator in July 2024 to prevent tax and criminal offences, which allows businesses to voluntarily abandon the use of an illegal ‘split’ scheme in exchange for the further conduct of activities by a group of persons without the risk of their further prosecution for tax and criminal liability. The author considers the existing judicial and administrative approaches that determine the subject of proof when imputing the use of illegal ‘split’ scheme to taxpayers, as well as analyses certain features reflected in the legally enshrined term ‘business split’. The main conclusion of the study shows that there is still no certainty of legal regulation in the issue of qualification of relationships within a group of persons as aimed at unlawful ‘splitting of business’. To a lesser extent, the level of fiscal effect possible to achieve through the application of the instrument introduced by the new law is questioned. To a greater extent, in the author’s opinion, the level of certainty in the relationship between the state and business will suffer, in which the latter, as a weak party to tax legal relations, will prefer to refuse the legitimate use of tax preferences, despite the resulting additional tax burden.

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Keywords: prevention of tax offences, tax amnesty, business splitting, criteria of business splitting, certainty principle, tax disputes

The article summarises analysis of the tax consequences of VAT and corporate income tax for e cross-border assignment of a monetary claim under contracts envisaging supply of goods (performance of work, provision of services). The authors point out the area of legal uncertainty when determining the place of property rights supply for VAT purposes, as well as practical aspects of defining tax obligation to pay withholding income tax in the case of a cross-border debt assignment. The authors conclude that Russian Tax Code should more precisely determine property rights’ place of supply rules for VAT purposes. Additions to the law are required to address tax implications of a cross-border assignment of debt where a foreign related company assigns to another foreign company a debt associated with the performance of work (or rendering services) to a Russian company.

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Keywords: cross-border assignment of a monetary claim, VAT on debt assignment, tax on income relating to property rights assignment, withholding income tax

The article was prepared as part of a study on the assessment of the fiscal and economic consequences of the transition to taxation of real estate of organisations based on the cadastral value. The analysis of the judicial practice of recent years on the issues of challenging the fact of inclusion in the regional list of objects, the taxation of which is carried out based on the cadastral value. It is concluded that the problems of law enforcement can be solved on the basis of the formation of uniform approaches in judicial practice, including in terms of ensuring consistency in assessing the actual characteristics of real estate in each case. The main reason for the cancellation of judicial acts adopted in favour of the taxpayer does not relate to errors in law enforcement. The outcome of a court dispute in most cases depends on how effectively the parties approached proving the type of actual use of real estate objects.

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Keywords: tax law, corporate property tax, judicial practice, cadastral value, property taxation, tax administration, regional taxes, constitutional justice, the principle of certainty of taxation, arbitrazh courts

The article is devoted to practical problems of individuals and organisations applying tax benefits to income from the sale of shares (or participatory interests in LLC), which they have owned for more than 5 years. The author identifies two pressing problems: (1) the impact of reorganisation of a legal entity on the calculation of the period of ownership (2) limitations of benefits that apply to personal income tax, but do not apply to corporate income tax. The author considers the reasons for practical problems and proposes solutions based both on the purposes of benefits and on the economic and legal nature of investments in the authorised capital of legal entities. The author concludes that reorganisation of a legal entity should not interrupt the calculation of the period of ownership of shares. However, in the author’s opinion, the shortcomings in the law text will entail practical problems until the law is amended. The author also comes to the conclusion that limitations on personal income tax benefits will inevitably entail audits by Russian tax authorities when applying corporate income tax benefits.

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Keywords: tax benefits, sale of shares, sale of participatory interests in LLC, tax exemption, personal income tax, zero percent tax rate, corporate income tax

The article focuses on the select issues of modern tax law of the People’s Republic of China (PRC). The author starts with definition of the key features of Chinese tax law that must be taken into account when analysing it. In particular, the author shows relationship between tax reform and general economic reform, explains how several tax systems co-exist within one state, and gives brief description of the tax system of mainland China. The second part of the article presents in detail the system of legal regulation of taxation in the PRC and reflects the trends in its development. To enhance a better understanding of the features of the legal regulation of taxation in China, the author makes comparisons with sources of Russian tax law. The third part of the article gives overview of the taxation of the platform economy in China, including measures of tax support for the digitalisation of the economy.

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Keywords: law of PRC, tax law of PRC, platform economy, e-commerce, comparative law, China, People’s Republic of China (PRC)

The article is devoted to the criminal case against two peasants, brothers Kolesnikov. This case was tried by the Tambov regional court and the Senate in the end of the XIXth century. Both brothers were convicted for being members of heretic group and were pardoned only several years after conviction. Using this case as an example, the author explains how the Russian criminal courts worked after the 1864’s reform. Many famous lawyers and politicians were involved in this case including Boris Chicherin, Anatoly Koni, Nikolai Tagantsev, Petr Stolypin, and Emperor Nicholas II.

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Keywords: jury trial, witnesses, heretic group, cassation, Senate

This is a previously unpublished paper of prominent Russian lawyer, philosopher and politician, Boris Chicherin (1828–1904). He critically describes the trial over two peasants, brothers Kolesnikov. This case was tried by the Tambov regional court in the end of the XIXth century. Both brothers were convicted for being members of heretic group.

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Keywords: jury trial, witnesses, heretic group, testimonies, justice

The problems of the formation and development of copyright for photographic works in the Soviet period (1917–1991) are considered. The historical analysis is based on the stages of codification of Soviet civil and copyright legislation in the 20s, 60s and 90s. Along with the general trends of copyright, its specific practice and theory in the conditions of the Soviet state are investigated. On the example of the legal protection of photographic works, on the one hand, the formation and deformation of exclusive rights, the provisions of which were taken from pre-revolutionary legislation, are shown. On the other hand, the transition to the codification of civil and copyright law in 1991 is presented not only taking into account the perestroika processes in the USSR, but also in connection with the advent of a new information technology era of computers and the Internet.

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Keywords: copyright, history of Soviet copyright, photographic works, deformation of exclusive rights, information technology

This article is devoted to the brief analysis of 10-year practice of reforming of private arbitration institutions in Russia. The author emphasises two their negative consequences — the limit on the number of such institutions and restrictions upon access to arbiter profession, the second consequence being much more dangerous than the first. Finally the author acknowledges the necessity to change regulation in the sphere of private arbitration institutes.

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Keywords: private arbitration institutes, common list of arbiters, the reform of arbitration in Russia

In November’s Legal Chronicle we present comments on the Constitutional Court’s ruling on limitation periods in corruption cases, the Supreme Court’s rulings on the fundamental issues of ownership of real estate and the status of the self-employed, as well as its ruling on the criminal ‘doctors’ case’ which concerns the limits of extra-procedural communication between judge and jury, the Federal Tax Service’s clarifications on the procedure for amnesty of business splitting, and expert opinion on the rights of children born with the help of assisted technologies and their legal status in connection with the case considered in the Constitutional Court.

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Keywords: limitation period, corrupt income, seizure of property, ownership rights, unified state register of rights to real estate, property claims, proof of ownership, self-employed, professional income tax, personal income tax, business split amnesty

This article is devoted to the analysis of the situation in which the creditor, while retaining claims against the principal debtor under a secured obligation, assigns its claims against the guarantor to the assignee (separate assignment of the creditor’s claims against the guarantor). The author shows that, based on dogma, domestic legislation and judicial practice, several arguments pro et contra the admissibility of a separate assignment of the creditor’s claims to the guarantor can be given. At the same time, the arguments in favour of prohibiting the separate assignment of claims to the guarantor turn out to be very vulnerable to criticism. Based on the existing usefulness for the circulation of the corresponding instrument of separate assignment, the generally permissible nature of the private law method of regulating contractual relations, as well as the availability of effective tools for protecting the debtor and guarantor from abuse, the author concludes that it is necessary to support the point of view on the admissibility of separate assignment of claims to the guarantor, which is organically integrated into dogmatics, which does not recognise the accessority of belonging (following) as having a constitutive nature in securing obligations.

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Keywords: securing obligations, guarantee, assignment of rights (claims), accessory

The author analyses the role of state courts in granting interim measures and obtaining evidence in support of international arbitration proceedings. The author identifies the main issues arising from the overlap of jurisdiction between state courts and arbitral tribunals in these areas and discusses the most effective mechanisms for coordinating their interaction. The author argues that an arbitration agreement is the most effective tool for coordinating the interaction between state courts and arbitral tribunals. This can be achieved by either excluding specific provisions of an applicable arbitration law that grant concurrent powers to both state courts and arbitrators or by establishing procedures that guide parties in exercising their respective procedural rights.

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Keywords: state courts, arbitral tribunal, international commercial dispute, interim measures, evidence

One of the directions of the Russian criminal law policy is to increase the effectiveness of countering crimes related to the molestation, seduction and sexual exploitation of minors. Therefore, it is of scientific interest to find ways to criminalise sexual crimes based on the general principles of criminal responsibility. According to the study, in judicial practice, it is allowed to classify any actions against a person under the age of sixteen as depraved and sexual acts on the basis of their orientation towards satisfying the sexual desire of the perpetrator. The criminalising significance of this feature stems from an analysis of the system of existing norms. The author came to the conclusion that such regulation hinders the possibility of effective realisation of the right to protection from prosecution and leads to cases of conviction for acts that do not pose a public danger. The article argues for the need to disqualify the relevant legal provisions.

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Keywords: actions of a sexual nature, lewd acts, satisfaction of sexual desire, sex crimes, responsibility for pedophilia