The Constitution of the Russian Federation stipulates the obligation of everyone to pay taxes and fees to the budget system (Article 57 of the Constitution of the Russian Federation). But in order for a person to have such an obligation, a tax (or fee) must be legally established. It means that:

• the tax or fee must be established by representative authorities (federal or regional);
• taxpayers and elements of taxation should be defined;
• a tax or fee must be enacted.

General conditions for establishing taxes and fees

A tax is considered to be established in respect of which the following elements are also defined (clause 1, article 17 of the Tax Code of the Russian Federation):

• object of taxation, i.e. what exactly is subject to taxation - sales operations, income of a person, property belonging to a person, etc.;
• tax base - a quantitative expression of the object of taxation (more often in monetary terms, but not necessarily);
• the tax period after which the taxpayer must determine the tax base and pay the tax (quarter, year, etc.);
• the tax rate on the basis of which the amount of tax is calculated;
• tax calculation procedure (calculation procedure);
• the procedure and terms for paying tax (once the entire amount of tax at the end of the tax period or, for example, in installments during the tax period).

In addition, tax incentives and grounds for their application for a specific tax can be established (clause 2, article 17 of the Tax Code of the Russian Federation). But this is no longer a mandatory element of the tax.

If at least one mandatory element is not defined, then the tax is not considered legally established and taxpayers are not required to pay it.

Conditions for setting fees

As for the fees, the payers and the elements of taxation necessary for a particular fee should be established in their respect (clause 3, article 17 of the Tax Code of the Russian Federation). That is, when establishing the collection of some mandatory "tax" elements, there may not be. It all depends on the nature of the collection itself (Letter of the Ministry of Finance dated February 18, 2004 N 04-05-15 / 2).

For example, when establishing a trade fee, legislators established the payers of the fee, the object of taxation, rates, the period of taxation, as well as the procedure for calculating and paying the fee (Chapter 33 of the Tax Code of the Russian Federation). However, they did not establish, for example, the tax base. Because in this case it is not needed.

Thus, the procedure for establishing taxes and fees is different. For taxes, a strict list of mandatory elements of taxation is defined, and when a fee is established, the list of elements may change, but its payers must be determined in any case.

ST 17 Tax Code of the Russian Federation.

1. The tax is considered to be established only if the taxpayers are determined
and elements of taxation, namely:

• object of taxation;
• the tax base;
• taxable period;
• tax rate;
• the procedure for calculating the tax;
• procedure and terms of tax payment.

2. In necessary cases, when establishing a tax in an act of legislation on taxes
and fees may also provide for tax incentives and grounds for their use
taxpayer.

3. When establishing fees, their payers and elements of taxation are determined
for specific fees.

Commentary on Art. 17 Tax Code

The commented article defines the basic beginnings of establishing taxes and fees.

Enshrined in the Constitution of the Russian Federation, the obligation of everyone to pay taxes and fees applies only to those taxes and fees that are legally established. If it is determined that the tax (fee) was not established legally, then the obligation to pay such a payment cannot arise.

The test for the recognition of taxes and fees as legally established has been used more than once in Russian judicial practice. The Constitutional Court of the Russian Federation has repeatedly decided to recognize as illegally established a number of mandatory payments of a public law nature: a fee for border clearance (Resolution of the Constitutional Court of the Russian Federation of November 11, 1997), license fees for the production, bottling and storage of alcoholic products, for the wholesale sale of alcoholic products (Resolution RF Constitutional Court dated February 18, 1997), fee for electricity supplied to enterprises in the sphere of material production (Resolution of the RF Constitutional Court dated April 1, 1997), license fee for a settlement in the Moscow Region (Resolution of the RF Constitutional Court dated July 2, 1997), etc.

The concept of legally established taxes and fees is disclosed in the Tax Code of the Russian Federation (in the commented article) and decisions of the Constitutional Court of the Russian Federation. Based on the norms of the Tax Code of the Russian Federation and the legal positions of the Constitutional Court of the Russian Federation, it can be concluded that, firstly, taxes and fees should be established by representative bodies of state power and local self-government and clothed in relevant legislative acts (federal or regional) or decisions of representative bodies local government, adopted in accordance with the established procedure. Secondly, all the main elements of the tax or fee must be clearly defined, without which it is impossible to calculate and pay this obligatory public law payment. Third, the tax must be enacted.

The significance of the first requirement for the process of tax rule-making in order for the tax to be considered legally established is due to the fact that the obligation to pay the tax must necessarily take the form of a law (at the municipal level - regulatory legal acts adopted by representative bodies of municipal government). The law is the main source of law, since only the law can contain a requirement for the owner to transfer part of his property in the form of a tax free of charge in favor of the state or local government. Such a requirement becomes legal only when it is clothed in the form of a law. Otherwise, it will violate the constitutional principle of property protection.

Consider the concepts of establishing a tax and imposing a tax.

To establish a tax, as the Constitutional Court of the Russian Federation has repeatedly noted in its decisions, does not mean only giving it a name, it is necessary to define in the law all the essential elements of taxation (Resolutions of the Constitutional Court of the Russian Federation of 04/04/1996, 02/18/1997, 11/11/1997 and etc.).

The Constitutional Court of the Russian Federation specifically notes that it is possible to establish a tax only by such direct enumeration in the tax law of all the main elements of taxation, in which these elements are clearly and unambiguously defined.

In accordance with the commented article of the Tax Code of the Russian Federation, a tax is considered established only if the taxpayers and elements of taxation are determined.

The elements of taxation necessary for establishing a tax are exhaustively listed in the same Art. 17 of the Tax Code of the Russian Federation:

Object of taxation;

The tax base;

Taxable period;

tax rate;

The procedure for calculating tax;

Procedure and terms of tax payment.

In necessary cases, when establishing a tax, an act of legislation on taxes and fees may also provide for tax benefits and grounds for their use by the taxpayer. Tax incentives, actively used in modern legislation on taxes and fees in accordance with the requirements of fair tax regulation, are an optional element of taxation and do not belong to the main elements of taxation, without which the tax will not be considered established.

As stated in Art. 12 of the Tax Code of the Russian Federation, depending on the procedure for establishing taxes and fees, as well as the territory in which they are considered mandatory for payment, all taxes in the Russian Federation are divided into three types - federal, regional and local.

The above norms of the Tax Code of the Russian Federation and the legal positions of the Constitutional Court of the Russian Federation apply to all three types of taxes. However, it is obvious that in relation to the establishment of regional and local taxes, additional issues arise related to the distribution of powers between the Federation, its constituent entities and local self-government in determining the main elements of regional and local taxes.

Even before the adoption of the Tax Code of the Russian Federation, the Constitutional Court of the Russian Federation noted that the regulation of regional taxes by federal legislation is of a framework nature and assumes that the filling of the relevant legal institutions with specific content is carried out by regional legislation on taxes (Resolution of the Constitutional Court of the Russian Federation of March 21, 1997).

The Tax Code of the Russian Federation clarified the scope of powers to establish regional taxes, which are vested in the legislative bodies of state power of the constituent entities of the Russian Federation and representative bodies of municipalities. These authorities determine, in the manner and within the limits provided for by the Tax Code of the Russian Federation, tax rates, as well as the procedure and terms for paying regional and local taxes, respectively, if these elements of taxation are not established by the Tax Code of the Russian Federation. In addition, they are granted the right to establish the specifics of determining the tax base, tax benefits, the grounds and procedure for their application.

It should be noted that the legislation on taxes and fees may delegate certain powers to state authorities and local self-government within the framework of establishing a tax. The Tax Code of the Russian Federation may empower the federal legislator to determine the elements of regional and local taxes, the regional legislator (legislative bodies of state power of a constituent entity of the Russian Federation) - the authority to establish elements of federal and local taxes, and the representative bodies of local government - the authority to determine the elements of federal and regional taxes . For example, in accordance with Art. 222 of the Tax Code of the Russian Federation, the legislative authorities of the constituent entities of the Russian Federation are delegated the right to differentiate the amounts of social tax deductions for personal income tax - a tax that is not regional, but federal.

At the regional and local levels, the concepts of establishing and introducing taxes and fees differ.

Considering the issue of the authority to introduce regional taxes in the Russian Federation, the Constitutional Court of the Russian Federation noted in one of its decisions that the inclusion of a regional tax in the list of the Tax Code of the Russian Federation means the right of a subject of the Russian Federation to introduce this tax, and not the obligation to do so (Resolution of the Constitutional Court of the Russian Federation dated 01/30/2001). The same statement fully applies to local taxes, and to the representative bodies of local self-government that introduce them.

When deciding on the introduction of a regional or local tax, the representative bodies of state power of a constituent entity of the Russian Federation and local self-government, respectively, exercise this right, noted in the Resolution of the Constitutional Court of the Russian Federation, to impose or not to impose a tax on their territories. In addition, the decision on the introduction of the tax contains, as a rule, the rules on the definition of certain elements of taxation, referred by the Tax Code of the Russian Federation to the rule-making powers of the constituent entities of the Russian Federation or local self-government.

The introduction of a regional or local tax also involves determining the effective date of the tax or fee, as well as disseminating the necessary information about the established and introduced regional and local taxes.

The elements of taxation that the legislator must determine in order for the tax to be considered legally established, as already noted, are listed in an exhaustive manner in the commented article of the Tax Code of the Russian Federation. Together, they constitute the legal composition of the tax.

Consider each of these elements of the legal composition of the tax.

The establishment of a tax begins with the determination of taxpayers - organizations and individuals who, in accordance with the Tax Code of the Russian Federation, are required to pay taxes.

The tax law fixes the object of taxation - legal facts (actions, states, events), with the presence of which the legislation on taxes and fees connects the emergence of the taxpayer's obligation to pay tax. The objects of taxation may be the sale of goods (works, services), property, profits, income, expenses or other circumstances. For example, for VAT, the object of taxation is the sale of goods, works and services, for excises - the sale of excisable goods, for transport tax - a vehicle, for personal income tax - income, etc.

Another element of taxation is the tax base, which is a cost, physical or other characteristic of the object of taxation. The tax base measures the object of taxation, expresses it quantitatively. For personal income tax, for example, the tax base is the monetary expression of income in rubles, for excises - the volume of excisable goods sold in kind or their value in rubles, for land tax - the cadastral value of the land plot in rubles, for transport tax - capacity engine horsepower, etc.

The establishment of a tax involves fixing in the law a tax period, which is understood as a calendar year or other period of time in relation to individual taxes, after which the tax base is determined and the amount of tax payable is calculated. So, for personal income tax, income tax, the tax period is a calendar year, for excises - a calendar month, etc.

The next element of taxation to be enshrined in law when establishing a tax is the tax rate - the amount of tax charges per unit of measurement of the tax base. Tax rates can be expressed as a percentage of the tax base (tax on income, personal income, property, VAT, etc.; in relation to excises, such rates are called ad valorem), in a fixed amount per unit of taxation (transport tax, excise tax on most excisable goods) and in a combined (mixed) form, providing for a combination of percentage and fixed tax rates (combined rates are set for individual excisable goods).

In the theory of taxation, there are three types of tax rates used in modern tax legislation:

1) proportional - with a constant percentage;

2) progressive - with an interest rate that increases with an increase in the tax base;

3) regressive - with an interest rate that decreases with an increase in the tax base.

The procedure for calculating the tax - this element of taxation, enshrined in the law when establishing a tax, shows who calculates taxes and how. As a general rule, the taxpayer calculates the payable tax independently based on the previously determined tax base and the tax rate and tax benefits established by law.

In some cases, enshrined in the legislation on taxes and fees, the tax calculation is assigned to the tax authorities. This applies to certain taxes paid by individuals (property tax, land tax, transport tax), and is done in order to free citizens from collecting information necessary for calculating taxes, as well as from the calculations themselves, which require them to know the details of the legislation. about taxes and fees.

Another way to calculate the tax involves imposing the corresponding obligation on tax agents, who, in accordance with the Tax Code of the Russian Federation, are responsible for calculating and withholding taxes from the taxpayer, and then transferring the withheld taxes to the budget system of the Russian Federation. Tax agents are, for example, organizations paying personal income tax or paying interest or dividends to founders (shareholders).

Finally, the establishment of a tax is impossible without fixing in the relevant tax law the procedure and terms for paying the tax, namely:

a) actions that mediate the tax payment - it is made as a one-time payment or advance payments are provided for;

b) the method of tax payment - cash or non-cash payment, the possibility of paying tax through the cash desk of the local administration or the organization of the federal postal service, etc.;

c) terms of tax payment - such terms can be determined in the tax law, firstly, by a calendar date or the expiration of a period of time calculated in years, quarters, months and days, and secondly, by indicating an event that should occur or occur, or action to be taken.

Paragraph 3 of the commented article stipulates that when fees are established, their payers and taxation elements are determined in relation to specific fees. So, for example, when establishing fees for the use of objects of the animal world and for the use of objects of biological resources, the legislator in Chapter 25.1 of the Tax Code of the Russian Federation determined the payers of the fee (Article 333.1), the objects of taxation (Article 333.2), the rates of fees (Article 333.3), the procedure calculation of fees (Article 333.4), procedure for payment of fees (Article 333.5).

As a rule, in the legal literature, "taxation" defines the process of establishing and levying taxes, as well as the procedure for paying taxes by legal entities and individuals. However, this is too narrow an approach. This term is somewhat broader revealed by D.V. Tyutin, who understands taxation as the process of paying taxes regulated by law, as well as related processes (including the introduction and abolition of taxes, the collection of taxes, tax control, prosecution for tax offenses, protection of the rights of taxpayers, etc.).

Without going into theoretical discussions regarding the breadth of the definition of the term "taxation", it seems that for an accountant and his practice, the issues of taxation deserve attention from the position: 1) the conditions under which the tax is considered established. ; 2) taxpayers and tax agents; 3) the effect of legislation in time; 4) resolution of contradictions between regulatory legal acts; 5) the rules for determining the tax period when creating and liquidating an organization; 6) features of tax payment. Payment terms; 7) tax (adjusted) tax declaration (calculation); 8) rules for calculating terms.

As defined in Art. 17 of the Tax Code of the Russian Federation, a tax is considered established only if the taxpayers and elements of taxation are determined, namely:

• object of taxation;
• the tax base;
• taxable period;
• tax rate;
• the procedure for calculating the tax;
• procedure and terms of tax payment.

In this regard, if taxpayers or any element of taxation specified in paragraph 1 of Art. 17 of the Tax Code of the Russian Federation are not defined, the tax is not considered established.
As stated in paragraph 3 of Art. 11 of the Tax Code of the Russian Federation, the concepts of "taxpayer", "object of taxation", "tax base", "tax period" and other specific concepts and terms of the legislation on taxes and fees are used in the meanings determined in the relevant articles of the Tax Code of the Russian Federation.
Part one of the Tax Code of the Russian Federation contains general provisions on the mandatory elements of taxation (Articles 38, 52, 53, 55, 57, 58). In part two of the Tax Code of the Russian Federation, the persons recognized as taxpayers and the elements of taxation are indicated in relation to each tax.

Despite the fact that, as stated in the Tax Code of the Russian Federation: specific concepts and terms of legislation on taxes and fees are used in the meanings determined in the relevant articles of the Tax Code of the Russian Federation, unfortunately, one has to constantly refer to other legislation, which creates quite a lot of difficulties for an accountant, not having deep knowledge in the field of jurisprudence.
Both taxpayers and tax authorities cannot arbitrarily change or not apply the mandatory elements of taxation.

So, for example, in the Ruling of the Constitutional Court of the Russian Federation of May 15, 2007 N 372-O-P, it is indicated that it is a mandatory element of taxation and the taxpayer cannot arbitrarily apply it (change its size up or down) or refuse it applications.

In the Decree of April 27, 2009 in case N A54-3070 / 2008-C3, the Federal Antimonopoly Service of the Central District indicated that the tax authority is not entitled to change the length of the tax period or consider other periods of time as a tax period, unless this is only provided for by the Tax Code of the Russian Federation.

Also, such an element as the tax rate cannot be considered independently and separately both from the tax period and from other elements of taxation established by paragraph 1 of Art. 17 of the Tax Code of the Russian Federation (see Resolution of the Federal Antimonopoly Service of the North-Western District of April 22, 2011 in case N A05-11163/2010). Consequently, the provisions of the tax legislation, which impose certain obligations on the taxpayer, are effective from the beginning of the tax period. In other words, the tax becomes obligatory for payment from the beginning of the tax period.

Thus, the fact of establishing a tax takes place only if the following are defined: taxpayers, object of taxation, tax base, tax period, tax rate, procedure for calculating tax, procedure and terms for paying tax.

The presence or absence of other elements of taxation not listed in Art. 17 of the Tax Code of the Russian Federation, as well as the absence of any coefficients does not affect the legality of establishing a tax.

For example, the basic income adjustment factor is not a mandatory element of taxation, provided for in Art. 17 of the Tax Code of the Russian Federation (see Resolution of the Federal Antimonopoly Service of the North-Western District of October 18, 2010 in case N A13-3618 / 2010). In the Determination of the Supreme Arbitration Court of the Russian Federation dated May 29, 2009 N VAS-3703/09 in case N A37-1921 / 2007-16 / 2, it is noted that from the content of paragraph 6 of Art. 346.29 of the Tax Code of the Russian Federation it follows that the correction factor K2 corrects the value of the base yield specified in the Tax Code of the Russian Federation. Its establishment is the right of the municipality, and not its duty. Therefore, in the absence of this coefficient due to its failure to be established by the representative body of the municipality or the recognition of the regulatory legal act that established the coefficient as invalid, the single tax on imputed income for certain types of activity is to be calculated based on the base profitability, the amount of which is indicated in the Tax Code of the Russian Federation.

However, this circumstance may make it difficult or even exclude the possibility of calculating the tax.

So, in the Decree of December 16, 2011 in case N A64-3021 / 2011, the Federal Antimonopoly Service of the Central District indicated that two methods for determining the value of K2 for calculating a single tax on imputed income for certain types of activity cannot be installed in the city at the same time.

The Decree of the Federal Antimonopoly Service of the North-Western District of April 7, 2010 in case N A56-48990 / 2009 states that differentiating the size of the adjusting coefficient K2 depending on the form of ownership of business entities is contrary to the basic principles of legislation on taxes and fees.

In the Decree of the Federal Antimonopoly Service of the Far Eastern District dated March 29, 2011 N F03-807 / 2011 in case N A73-8634 / 2010, it is noted that the definition of the concept "average (average) for each calendar month of the tax period, the number of employees, taking into account all employees" in relation to the sphere of rendering household services is not contained in the Tax Code of the Russian Federation. There is no legal justification for determining a physical indicator in the decision of the tax authority. The tax authority's reference to Rosstat Decree No. 69 of November 20, 2006, and Rosstat Order No. 278 of November 12, 2008, is unfounded and was rightfully rejected by the courts as not related to tax regulation issues.

In addition, it is necessary to pay attention to the provisions of the norms of the Tax Code of the Russian Federation in force during the disputed period. For example, in the Decree of the Federal Antimonopoly Service of the Urals District dated November 14, 2011 N F09-6788 / 11 in case N A60-45086 / 2010, it is noted that during the audited period the Tax Code of the Russian Federation did not contain a procedure for determining the tax base for the initial assignment of a monetary claim, there was no object taxation of VAT upon transfer of property rights under an assignment agreement with the first creditor (assignor). Direct norm - par. 2 p. 1 art. 155 of the Tax Code of the Russian Federation, which establishes the procedure for determining the tax base for VAT upon initial assignment in the form of the difference between the amount of income from the assignment of the right to claim and the amount of the assigned monetary claim, entered into force only from October 1, 2011.

Thus, one should distinguish between:

• circumstances under which the tax is considered unstated;
• circumstances that hinder or exclude the possibility of tax calculation.

In all these cases, the principle enshrined in paragraph 7 of Art. 3 of the Tax Code of the Russian Federation: all fatal doubts, contradictions and ambiguities of acts of legislation on taxes and fees are interpreted in favor of the taxpayer. In this case, in the first case, the taxpayer has the right not to pay tax at all. In the second, the taxpayer either has the right not to pay the tax, or pay it in the most favorable amount for himself. However, as follows from paragraph 4 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 28, 2001 N 5 "On Some Issues of the Application of Part One of the Tax Code of the Russian Federation", when considering the question of whether there were fatal doubts and contradictions in the acts legislation on taxes and fees, which should be interpreted in favor of taxpayers, it is necessary to assess the certainty of the relevant norm. And this indicates that until the dispute is resolved in court, the tax authority will most likely believe that the tax has been established, there are no circumstances that impede or exclude the possibility of calculating the tax.

Privileges

In necessary cases, when establishing a tax, an act of legislation on taxes and fees may also provide for tax benefits and grounds for their use by the taxpayer (clause 2, article 17 of the Tax Code of the Russian Federation).

As established by Art. 56 of the Tax Code of the Russian Federation, privileges are recognized as benefits provided to certain categories of taxpayers and payers of fees provided by the legislation on taxes and fees in comparison with other taxpayers or payers of fees, including the opportunity not to pay a tax or fee or pay them in a smaller amount.

The taxpayer, at his choice, has the right to refuse to use the benefit or suspend its use for one or more tax periods, unless otherwise provided by the Tax Code of the Russian Federation.

Benefits for federal taxes and fees are established and canceled by the Tax Code of the Russian Federation.

Privileges for regional taxes are established and canceled by this Code and (or) laws of the constituent entities of the Russian Federation on taxes.

Privileges for local taxes are established and canceled by this Code and (or) normative legal acts of representative bodies of municipalities on taxes (laws of federal cities of Moscow and St. Petersburg on taxes).

It should be borne in mind that:

• tax exemption is also a benefit;
• benefits are targeted, and their establishment belongs to the legislative prerogative, which makes it possible to determine (narrow or expand) the circle of persons to whom they apply;
• benefits do not apply to the mandatory elements of the tax;
• the absence of benefits, including for other or certain categories of taxpayers, does not in itself affect the assessment of the legitimacy of imposing a tax.

Thus, tax incentives provide the taxpayer with the opportunity not to pay a tax or fee, or to pay them in a smaller amount. The absence of benefits in itself does not affect the assessment of the legitimacy of imposing a tax.

A tax is considered established only when the taxpayers and elements of taxation are determined, namely:

Object of taxation;

The tax base;

Taxable period;

tax rate;

The procedure for calculating tax;

Procedure and terms of tax payment.

Taxpayers and payers of fees organizations and individuals who, in accordance with the Tax Code of the Russian Federation, are obliged to pay taxes and (or) fees, respectively, are recognized.

In some cases, the subjects of tax legal relations are tax agents- persons who, in accordance with the Tax Code, are responsible for accruing, withholding from taxpayers and transferring taxes to the appropriate budget (off-budget fund). Tax agents for the payment of personal income tax (PIT) for most categories of taxpayers are employers, other organizations that are a source of income for individuals.

Objects of taxation may be transactions for the sale of goods (works, services), property, profit, income, the cost of goods sold (work performed, services rendered) or another object that has cost, quantitative or physical characteristics, with the presence of which the taxpayer has legislation on taxes and fees connects the obligation to pay tax. Each tax has an independent object of taxation, determined in accordance with the Tax Code of the Russian Federation.

The tax base represents the cost, physical or other characteristics of the object of taxation.

tax rate represents the amount of tax charges per unit of measurement of the tax base. The tax base and the procedure for its determination, as well as tax rates for federal taxes, are established by the Tax Code.

In the cases specified in the Code, federal tax rates may be established by the Government of the Russian Federation in the manner and within the limits determined by the Code.

The tax base and the procedure for determining it for regional and local taxes are established by the Tax Code. Tax rates for regional and local taxes are set accordingly by the laws of the constituent entities of the Russian Federation, regulatory legal acts of representative bodies of local self-government within the limits established by the Code.

Procedure for calculating tax. The taxpayer independently calculates the amount of tax payable for the tax period based on the tax base, tax rate and tax benefits.

In cases stipulated by the legislation of the Russian Federation on taxes and fees, the obligation to calculate the amount of tax may be assigned to a tax authority or a tax agent. In these cases, no later than 30 days before the due date for payment, the tax authority sends a tax notice to the taxpayer. The tax notice must specify the amount of tax payable, the calculation of the tax base, and the tax payment deadline.

Under tax period refers to a calendar year or other period of time in relation to individual taxes, after which the tax base is determined and the amount of tax payable is calculated. A tax period may consist of one or more reporting periods, following which advance payments are made.

Deadlines for paying taxes and fees set for each tax and duty.

When paying a tax and a fee in violation of the deadline for payment, the taxpayer (payer of the fee) shall pay penalties in the manner and on the terms provided for by the Tax Code.

The deadlines for paying taxes and fees are determined by the calendar date or the expiration of a period of time calculated in years, quarters, months, weeks and days, as well as an indication of an event that must occur or occur, or an action that must be performed.

In cases where the calculation of the tax base is made by the tax authority, the obligation to pay tax arises no earlier than the date of receipt of the tax notice.

1. A tax is considered established only if the taxpayers and elements of taxation are determined, namely:
object of taxation;
the tax base;
taxable period;
tax rate;
the procedure for calculating the tax;
procedure and terms of tax payment.

2. In necessary cases, when establishing a tax, an act of legislation on taxes and fees may also provide for tax benefits and grounds for their use by the taxpayer.

3. When establishing fees, their payers and elements of taxation are determined in relation to specific fees.

Commentary on Article 17 of the Tax Code of the Russian Federation

The commented article is devoted to the conditions for establishing taxes and fees.

The tax is considered established only when the taxpayers and elements of taxation are determined, namely: the object of taxation; the tax base; taxable period; tax rate; the procedure for calculating the tax; procedure and terms of tax payment.

As the Constitutional Court of the Russian Federation pointed out in Ruling No. 372-O-P dated May 15, 2007, the tax rate, including zero, for value added tax is a mandatory element of taxation (paragraph 1 of Article 17 of the Tax Code of the Russian Federation), and the taxpayer cannot arbitrarily apply it (change its size up or down) or refuse to use it. For example, the tax rate, including zero, for value added tax is a mandatory element of taxation, and the taxpayer cannot arbitrarily apply it (change its size up or down) or refuse to apply it. This conclusion is contained in the Ruling of the Supreme Court of the Russian Federation dated February 20, 2015 N 302-KG14-8990.

The fee is considered established only when the payers and the elements of taxation of the corresponding fee are determined.

This difference also predetermines a different approach to establishing mandatory payments to the budget: a tax is considered established only if taxpayers and all elements of taxation listed in the Tax Code of the Russian Federation, including the tax rate, are determined; when establishing fees, the elements of taxation are determined in relation to specific fees. Therefore, within the meaning of the Tax Code of the Russian Federation, in conjunction with Articles 57, 71 (paragraph "h"), 75 (part 3) and 76 (part 1) of the Constitution of the Russian Federation, the question of which elements of taxation should be enshrined in the law on this fee , the legislator decides based on the nature of this fee.

Similar explanations are given in the Letter of the Ministry of Finance of Russia dated February 18, 2004 N 04-05-15 / 2.

Based on the Definition of the Constitutional Court of the Russian Federation of February 8, 2007 N 381-O-P, tax is a necessary condition for the existence of the state, therefore the obligation to pay taxes, enshrined in Article 57 of the Constitution of the Russian Federation, applies to all taxpayers as an unconditional requirement of the state. The taxpayer does not have the right to dispose at his own discretion of that part of his property, which in the form of a certain amount of money is subject to contribution to the treasury, and is obliged to regularly transfer this amount in favor of the state, since otherwise the rights and legally protected interests of other persons, as well as the state, would be violated . The collection of tax cannot be regarded as an arbitrary deprivation of the owner of his property; it constitutes a lawful expropriation of a part of the property arising from a constitutional duty under public law.

If the taxpayer overpays a certain amount of tax in the current tax period, this amount is subject to all constitutional guarantees of property rights, since in this case its payment was made in the absence of a legal basis.

Under such circumstances, the amount of the overpayment in relation to the tax can be credited to expenses, since in the case of a reverse position, the concept of tax unlawfully includes the amount of the overpayment, which is not a tax (see also Resolution of the Federal Antimonopoly Service of the East Siberian District dated 13.06.2012 N A78-5404 / 2011).

The tax benefit is not a mandatory element of taxation.

Consequently, the issue of introducing or canceling benefits, as well as determining (narrowing or expanding) the circle of persons to whom tax benefits apply, belongs to the prerogative of the legislator.

This position is confirmed by the Letter of the Ministry of Finance of Russia dated 08.27.2010 N 03-05-04-01 / 42 and the Decree of the Federal Antimonopoly Service of the Far Eastern District dated 12.30.2005 N F03-A37 / 05-2 / 4403.

Therefore, the establishment of an optional element of taxation - a tax benefit, including in the form of a reduction in the amount of tax, cannot be identified with the need to establish a tax rate in a regulatory legal act of a representative body of local self-government on the tax on property of individuals.

A similar conclusion is contained in the Letter of the Ministry of Finance of Russia dated February 10, 2012 N 03-05-04-01/06.

Based on the Definition of the Supreme Court of the Russian Federation of May 17, 2006 N 44-G06-7, benefits can only be provided to certain categories of taxpayers.

It should be remembered that, unlike the tax benefit, the tax rate is an independent element of taxation, which must be determined when establishing each tax.

On the basis of paragraph 2 of Article 394 of the Tax Code of the Russian Federation, it is allowed to establish differentiated tax rates for land tax, depending on the categories of land and (or) the permitted use of the land plot.

At the same time, the Tax Code of the Russian Federation does not provide for the right of representative bodies of municipalities to differentiate tax rates for land tax for certain categories of taxpayers.

Thus, the differentiation of tax rates cannot be identified with the establishment of tax benefits.

Such clarifications are given in the Letter of the Ministry of Finance of Russia dated 06.10.2015 N 03-05-04-02 / 57016.

The legislation on taxes and fees provides for the specifics of taxation, as well as various benefits for certain categories of taxpayers, not only in the form of tax benefits, but also in relation to the mandatory elements of taxation. When establishing mandatory elements of taxation and determining various benefits for certain categories of taxpayers, including when establishing a reduced tax rate, the mandatory elements of taxation do not lose their specific nature and are not replaced by legislation on taxes and fees with an optional element of taxation - a tax benefit tax).

Therefore, in the formal legal sense, tax rates and tax benefits are different elements of taxation.

Explanations about this are contained in the Letter of the Ministry of Finance of Russia dated September 3, 2015 N 03-05-05-01 / 50668.

If at least one of the elements of taxation is not defined, for example, the tax base, then the tax is not recognized as legally established, and the taxpayer is not obliged to pay it.

Related to this conclusion is the conclusion that the tax authority, when checking the correctness of the calculation and payment of taxes to the budget, including VAT and income tax, is obliged to check all elements of taxation that make up these taxes, not excluding tax deductions and expenses (see also Decrees of the Federal Antimonopoly Service of the West Siberian District of December 13, 2011 N A75-11678 / 2010, FAS of the Volga District of March 28, 2011 N A55-9777 / 2010).

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