Guide to Russian Tax Law Research

 

This guide provides basic information on the Russian tax system, including the sources of the tax law and their hierachy and the structure of the tax system, as well as useful links to different sources of tax information in English.

 

Russian legislation distinguishes between “tax” (nalog) and “duty” (sbor).  The latter is payable as one of the conditions of the performance by state authorities in relation to the duty payer of particular legally significant actions, such as the provision of particular rights or the issue of permits (licences).  Tax and duty are defined in Article 8 of the Tax Code.  According to Article 2 of the Tax Code, the tax legislation does not cover the rules for application of customs duties, unless otherwise specifically provided in the Tax Code.

 

I. Sources of Russian Tax Law

 

A.  Constitution

 

The Constitution (which came into force on December 25, 1993) contains several important provisions with respect to the general principles of the Russian tax system.  The text of the Constitution in English translation is available here:  http://www.constitution.ru/en/10003000-01.htm

 

Under Article 57 of the Constitution, everyone is obliged to pay the legally established taxes and dues.  Laws introducing new taxes or deteriorating the position of taxpayers may not have retroactive effect.  Under Article 75.3, the system of taxes paid to the federal budget and the general principles of taxes and levies in Russia must be established by the federal law.

 

B.  International Treaties

 

International tax treaties supercede the domestic tax legislation.  See Article 7 of the Tax Code.  However, like most double tax treaties, the treaty rates and other provisions do not apply if the taxpayer is better off under the domestic tax legislation.

 

The double tax treaties of the former USSR are still valid under the Russian legislation, but most of the USSR treaties have been replaced by treaties entered into by Russia. 

 

C.  Tax Code

 

Tax Code Part I, Federal Law No. 146-FZ of July 31, 1998 in English translation is available here: http://www.garweb.ru/project/mns/nk/en/10800200/10800200-001.htm

 

Tax Code Part II, Federal Law No. 117-FZ of August 5, 2000 in English translation is available here (zip pdf file, 777Kb, 2397 pages):  http://www.ey.com/global/download.nsf/Russia_E/Russia_Tax_Code/$file/FLAW117_A29.zip

 

A comprehensive Tax Code envisaged as a replacement for existing legislation is wedvqwdvcurrently under development.  The Tax Code consists of two parts, Part I and Part II.    Part I of the Tax Code containing general tax rules and provisions became effective as of January 1, 1999.  Part II of the Tax Code contains special rules with respect to calculation and payment of particular taxes, and  by now most of its Chapters have been enacted.

 

The most important Chapters of Part II of the Tax Code have been gradually adopted starting from 2001 (Value-Added Tax (VAT), Excise Duties, Individual Income Tax, Unified Social Tax, Profits Tax, Sales Tax, Mineral Extraction Tax, Unified Agricultural Tax, Transport Tax, Gaming Tax, Special Regime of Taxation of Production Sharing Agreements).  Other changes to the tax law are expected when the remaining chapters of Part II of the Tax Code are enacted (for example, Assets Tax, State Levy, etc.)

 

D.  Federal Tax Laws

 

Certain provisions of the tax law are contained in federal tax laws (i.e. not in the Tax Code).  For example, the property (assets) tax, the advertisement tax, and certain other regional and local taxes are governed by the Law of Fundamentals of the Tax System of December 27, 1991 (unavailable on the Internet, to the best of my knowledge). 

 

The system of payments for use of mineral resources (royalties) is established by the Federal Law on Subsoil of March 3, 1995, which is available in Russian only here: http://mirror2.garant.ru/webclient/navigation.dsp?topic=494476&realid=10004313&page=1&shortname=#

 

In addition, certain federal laws governing non-tax areas contain tax related provisions, most often related to establishment of tax exemptions or allowances for certain industries or categories of taxpayers.

 

E.  Regional Tax Laws

 

Regional tax laws establish the rules for regional and local taxes, regional tax rates, as well as the system of tax exemptions and allowances where such rights are granted to regional authorities by the federal tax legislation.

 

F.  Administrative Regulations

 

The two government authorities which are given the right for interpretation of the tax laws are the Ministry for Taxes and Levies (here is the website containing general and specific information about the organization and functions of the Ministry for Taxes and Levies: http://www.nalog.ru/eng/sved.asp) and the Ministry of Finance (Tax Policy Department).  These authorities issue methodological recommendations (metodicheskiye recomendatsyi) and instructions (instruktsya) on application of the tax laws, as well as public and private letters addressing different controversial tax issues.  

 

The primary goal of the methodological recommendations and instructions is to serve as an obligatory guidance for the tax and other state authorities in their application of the tax law provisions.  They do not have the force of law (are not regarded as a source of law and may, therefore, be disregarded by courts) but could be a useful indicator for the taxpayers on what position the tax authorities are likely to take in various controversial issues described in these documents.   

 

The public and private letters issued by the tax authorites establish the authorities’ official position with respect to various controversial tax issues.  These documents, like the methodological recommendations and instructions, do not have the force of law.  The public letters are addressed to the general public, whereas the private letters are addressed to a particular taxpayer who initiated the request to the tax authority according to the right given to the taxpayers by Article 21.1.2 of the Tax Code.  It is important to note that the observance by a taxpayer of written explanations contained in the letter issued by a tax authority and addressed to this taxpayer is regarded as the circumstance that precludes assertion of  tax penalties for violation of the tax law according to Article 111.1.3 of the Tax Code.  This provision, however, does not exempt the taxpayer from the obligation to pay interest for late payment of taxes.

 

G.  Court Cases

 

Court cases have significance similar to that in other civil law countries.  Although court cases do not have the authority of law, the volume of tax litigation has been growing and the court practice in the tax area becomes increasingly important.  Tax cases are considered at all levels of the Russian judiciary system, including the Constitutional Court,  the highest court level. 

 

Overview of the Russian judiciary system in English can be found here. http://www.supcourt.ru/EN/rj.htm

 

Here you can find the description in English of the two main divisions of the judiciary system, the Supreme Court (considers the tax issues involving individual taxpayers) (http://www.supcourt.ru/EN/frames.htm) and the Supreme Arbitrage Court (considers tax issues involving legal entities) (http://www.arbitr.ru/eng/index.htm).

 

 

II. Structure of Tax System

 

A.  Tax Administration

 

The basics of the tax system, including the list of taxes, the rights of the tax authorities and taxpayers, general definitions and tax administration and procedure, are governed by Part I of the Tax Code.  The enactment of Part I of the Tax Code in 1998 was a milestone in the development of the Russian tax system, since this was the first comprehensive legal act that shaped the structure of the tax system.  The position of the taxpayers was considerably improved, as in addition to limiting the amounts of fines and penalties which were enormous in the past, Part I also strengthened the rights of taxpayers.  Some of the most important provisions of Part I related to taxpayers’ rights include:

 

 

B.  Tax Structure

 

The tax structure follows the federal nature of Russia in that the various regional jurisdictions that are parts of the Russian federal system have certain rights with respect to establishment of taxes and tax rates.  The tax structure may be summarized as follows:

 

 

The Ministry for Taxes and Levies, with its system of regional and local tax authorities, is the federal agency solely responsible for administration of all types of taxes.

 

 

III.  Subscription-Based Sources of On-Line Information

 

Garant – major Russian law database service that provides access to legislation documents translated in English

 

Tymothys – an excellent source of information on court cases involving tax matters that have been decided at all levels of the court system (available in Russian only).

 

IV.  Treatises, Commentaries, and Journals Available in Hard Copy

 

The following books are considered to be the fundamental sources of analytical information on Russian tax legislation; all of the books are in Russian.

 

Pepelyaev S.G., Tax Law

Shatalov S.Y.,  Commentary to the Part I of the Tax Code of the Russian Federation

Shatalov S.Y.,  Commentary to the Part II of the Tax Code of the Russian Federation

 

 

III.  Other Sources of Information

 

A.  Government Authorities

 

The Ministry for Taxes and Levies - contains general information on the organization and functions of the tax authorities in Russia, as well as current information, announcements, and news of the Ministry of Taxes and Levies which are important to the taxpayers.

 

B.  Professional Associations

 

American Chamber of Commerce in Russia (AmCham) – this website of the largest and most influential foreign business organization in Russia contains important information on the work and publications of AmCham in Russia, current developments, initiatives, meetings with government representatives, as well information related to various aspects of doing business in Russia.

 

European Business Club (EBC) – the website of an association of businesses from the European Union, which have activities with Russia and inside Russia.  The EBC serves as a networking forum and a valuable information resource keeping members up-to-date on a variety of current issues, such as taxation and legislation changes, politics, the business environment, and socio-economic undercurrents.  This website contains information related to all aspects of the EBC’s activities in Russia.

 

The U.S.-Russia Business Council (USRBC) – the website of a Washington-based trade association, that represents interests of nearly 300 member companies operating in the Russian market.  USRBC conducts activities and provides services that fall into the following categories: company-specific assistance and industry-sector efforts; Russian and U.S. government policy work; information products; and Russian business relationships; policy briefing and formal/informal networking opportunities.  This website contains information related to all aspects of the USRBC’s activities in Russia.

 

C.  Information Services

 

Business Information Service for the Newly Independent States (BISNIS) – the website of the U.S. Government's primary market information center for U.S. companies exploring business opportunities in Russia and other Newly Independent States (NIS).  BISNIS provides U.S. companies with the latest market reports and tips on developments, export and investment leads, and strategies for doing business in the NIS.

 

RUSTOCKS (Financial Information Agency) – this is the first Russian Internet resource dedicated to investor relations. It aggregates original corporate data, market professionals’ opinions, and information products provided by independent analysts and information agencies.

 

 

Prepared by Roman Bilyk, NYU LL.M. candidate, International Tax Program, Class of 2004