Tax law related branches of law. The relationship between tax law and other branches of law and legislation

Topic 1. Tax law in the Russian legal system. Sources of tax law.

Question No. 1. The concept of tax law. Subject of tax law, method of legal regulation.

Tax law occupies a leading place in the Russian legal system, because it regulates the most important legal relations for the state and society - public relations in the field of taxation that arise between the state, taxpayers and other obligated persons.

The term "tax law" can be considered and interpreted with different meanings:
1) tax law as an academic discipline;
2) tax law as a branch of legal science (a system of categories, judgments and conclusions about tax-legal relations);
3) tax law as part of a branch (sub-branch) of Russian law.

It must be remembered that tax law as an academic discipline and tax law as scientific knowledge are based on a branch of law, since they study the norms and institutions of a specific branch (sub-branch) of law.

As an academic discipline, tax law is a system of information, knowledge and information about the basic provisions of tax law. It may differ from tax law as a branch, as it contains a more extensive amount of information. Indeed, within the framework of the academic discipline, issues such as the subject, method of tax law, history of tax legislation, and various theoretical problems are considered.

The science of tax law is a system of knowledge about the norms of the relevant branch of law, theory, practice, the order, forms and methods of applying the norms of a particular branch of law. As a branch of science, tax law studies social problems and processes that arise in the regulation of tax legal relations. Intensive research in tax science creates a theory of tax law, scientific developments and recommendations that provide grounds for the preparation and adoption of economically sound tax laws.

Tax law is a set of legal norms regulating social relations regarding the establishment, introduction and collection of taxes through the imperative method of influencing relevant subjects.

A characteristic feature of tax relations is their property nature - the fulfillment of tax obligations, which means the transfer of certain funds to the state by their owner. These social relations (tax legal relations) constitute the subject of tax law.

The subject of tax law is a set of legal relations that develop between the state, taxpayers and other obligated persons regarding the establishment, calculation, payment and collection of taxes and fees, the implementation of tax control and liability for violations of tax legislation, the protection of the rights and property interests of taxpayers, the state and local government bodies.

The relations that are subject to regulation of tax law can be presented in the following form:
1) the first group - relations related to the establishment of taxes and fees at the federal, regional and local levels, respectively;
2) the second group - relations associated with the introduction of taxes and fees at the federal, regional and local levels, respectively;
3) the third group - relations for the collection of taxes and fees, which manifest themselves in the process of execution of tax and quasi-tax relations, i.e. when calculating and paying specific types of tax payments by taxpayers and fee payers, as well as in the performance of duties by other obligated persons - tax agents, banks, etc.;
4) fourth group - relations for the implementation of tax control by the relevant government bodies;
5) fifth group - relations arising in the process of bringing relevant persons to justice for committing tax offenses.

In addition, the subject of tax law may also include some groups of relations regulated by customs legislation, but this requires a special indication of this in the tax legislation.

Participants in public relations in the field of taxation, which form the subject of legal regulation of tax law, are individuals and legal entities, including:
1) taxpayers, tax agents, tax authorities, financial authorities, customs authorities, tax police authorities, authorities of extra-budgetary funds, etc.;
2) bodies that carry out registration of organizations and individual entrepreneurs, places of residence of individuals, accounting and registration of property and transactions with it (registrars), social institutions, procedural persons participating in tax control activities, and credit organizations.

The subject of legal regulation and its boundaries can be clarified using the method. The method of legal regulation of any branch of law is usually defined as a set of legal means through which the regulation of social relations is ensured. Each method of legal regulation has its own characteristic features, the totality of which achieves the goals and solves the problems of legal regulation.

There are two methods in tax law:
1) public law method (or the method of power and subordination, the authoritarian method, the imperative method). The main feature of this method of regulating tax relations is the government's instructions to one participant in tax relations from others acting on behalf of the state;
2) civil law method (or dispositive method, coordination method, autonomy method). The application of this method in tax law involves the use of recommendations, approvals and the right to choose in the behavior of a subordinate entity of the taxpayer (coordination method). For example, tax authorities can provide enterprises, under the conditions established by Russian legislation, with a tax credit, deferment or installment payment based on a special agreement.

Since relations regulated by tax law mostly fall within the sphere of public law, the imperative method of legal regulation is used more often in tax law. The dispositive method is used, for example, when regulating relations regarding the conclusion of agreements on the provision of tax and investment tax credits.

Tax law is the most important part of the financial and legal system of the state and, as an element of the Russian legal system, closely interacts with other branches of law: constitutional, civil, financial, administrative, etc.

Tax law is closely related to constitutional law. So, in Art. 57 of the Constitution of the Russian Federation enshrines its fundamental principles, universality and legality: “Everyone is obliged to pay legally established taxes and fees.” The same article contains a ban on making legal regulations that increase the tax burden retroactive and, thus, performs a protective function, protects the interests of all taxpayers and serves as a guarantee against excessive property claims of the state.

Tax legislation and civil legislation have a similar subject of legal regulation in content - property relations, but they differ in their method. As we know, the dispositive method is a method of legal regulation of civil law. And the method of regulating tax law is predominantly the imperative method. In addition, in civil legal relations, property obligations are contractual in nature. Therefore, the norms of civil legislation do not apply to tax legal relations, unless otherwise provided in the Tax Code of the Russian Federation (Part 3 of Article 2 of the Civil Code of the Russian Federation).

The interaction of civil procedural and administrative procedural law with tax law is due to the fact that civil procedure ensures the enforcement of violated or disputed rights of legal entities and individuals. Civil procedural and administrative procedural law determines ways to protect rights, forms of prosecution, as well as the effectiveness of tax law in a controversial situation.

Tax law and administrative law are close not only in the imperative method of legal regulation, but also in the administrative and procedural forms of tax control and the responsibility of taxpayers, tax agents and other obligated persons.
Customs law is moving closer to tax law in terms of collecting VAT, excise taxes and customs duties.

Criminal law, on the one hand, ensures the protection of the fiscal interests of the state, on the other hand, criminal law enforcement practice is based on the norms of tax legislation, which ensures the correct qualification of crimes in the field of taxation.

Question No. 2. The place of tax law in the system of Russian law. The relationship between tax law and other branches of law and legislation.

The place of tax law in the system of Russian law is one of the controversial issues.

As a rule, scientists involved in the study of other branches of law attach independent importance to tax law. For example, M.I. Braginsky believes that “tax law is an independent branch of law, since property relations are the subject of not only civil, but also tax, budget and a number of other branches of law.” Other authors do not exclude the possibility of the formation of tax law as an independent legal community, since the taxpayer realizes himself as a subject of public relations in the absence of strict financial centralization and the concentration in the hands of taxpayers of significant powers to spend tax funds. The discussion about the independent nature of tax law was largely due to the codification of tax legislation carried out in 1998.

Most scientists studying issues of financial law are of the opinion that tax law is integrated into the system of financial law. During the period of underdevelopment of market relations and legislative priority of public property, tax law was considered nothing more than an integral part in the legal institution of state revenues. The transition to market forms of economic management, recognition of the equality of all forms of ownership and, consequently, the emerging need for a legislative model for combining private and public interests led to the growth of regulatory legal acts regulating tax mechanisms. As a result of the active development of tax law, it began to be characterized in relation to the financial law of the Russian Federation as its sub-sector.

A weighty argument in the dispute about the place of tax law is the constitutionally established principle of unity of financial policy. Tax policy is part of financial policy, which is of decisive importance in relation to the first.

The inclusion of tax law in the financial system is also evidenced by the partial coincidence of the boundaries of the subject of legal regulation. The subject of financial law is social relations that develop in the process of formation, distribution and use of state (municipal) monetary funds. The subject of tax law is social relations aimed at accumulating state (municipal) monetary funds and, thus, being part of the subject of financial law.

The system of taxes and fees is organically integrated into the financial system of the state, which presupposes general approaches to theoretical understanding and legislative regulation. Despite the fact that in the Russian legal system financial law belongs to uncodified sectors, since there is no single system-forming normative act, the current financial legislation allows us to speak of formed groups of general legal norms that directly affect tax relations. The rules of tax law and its individual institutions are formed on the basis of the basic institutions of the General Part of Financial Law.

In the system of financial law, tax law occupies a certain place and interacts with other financial and legal communities. Tax law is most closely related to budget law, which necessitates a clear distinction between these categories.

Indeed, the formation of budgets at all levels and state extra-budgetary funds is to a greater extent carried out on the basis of the norms of tax law and the norms of other financial law institutions regulating state revenues. However, the above does not mean the inclusion of tax law in the system of budget law. The presence of tax law is only predetermined, “established” by budget law as an institution of revenue for budgets of all levels. The relations that develop in the process of establishing and collecting taxes, conducting tax control, bringing to responsibility for violations of tax legislation, etc., do not constitute the subject of budget law. The subject of tax law only partially coincides with the boundaries of budgetary and legal regulation. It should be agreed that the basis for distinguishing tax and budget law can be the establishment of the moment of fulfillment of the tax obligation, which allows the tax payment process to be considered completed. Outside of tax exemptions, the movement of financial resources is regulated by budget law.

The above arguments substantiate the inappropriateness of distinguishing as independent elements of relations arising from the establishment, introduction and collection of taxes in the income of the state (municipal entity), the implementation of tax control and prosecution for committing a tax offense as part of the legal relations that form the subject of financial law. The use by the legislator of the legal technique of codifying tax legislation as a technique does not mean expanding the subject of tax legal regulation and acquiring the necessary attributes of independence by tax law.

At the same time, being in the structure of financial law, tax law comes into contact with and interacts with other branches of law.

Tax and constitutional law. Constitutional law occupies a leading place in the legal system, which is determined by the fact that constitutional law contains fundamental norms of other branches of law. The constitutional and legal regulation of tax relations is predetermined by their public significance and state power nature. In a rule-of-law state, any external activity of a public entity (state) must be carried out exclusively on legal grounds and, therefore, act within the limits permitted by the basic law - the constitution.

In the Russian legal system, tax legal relations acquired constitutional status only in 1993, i.e. after the adoption of the new Constitution of the Russian Federation by popular vote. Giving tax relations a constitutional character reflected not only the needs of law enforcement practice, but also the level of development of legal thought and legal culture of Russian society.

It is noteworthy that the norms of the Constitution of the Russian Federation not only established the universal obligation to pay legally established taxes and fees (Article 57), but also provided for a system of legal guarantees that ensure a compromise between respect for the rights of taxpayers and the fiscal interests of the state. Since taxation limits the rights of private entities to dispose of their property, the rules of tax law must comply with the constitutionally significant goals of limiting individual rights and the legislative form of introducing such restrictions.

Constitutional law influences tax law through a specific method - the establishment of general legal principles. The constitutional recognition of taxes as a permissible restriction of rights and freedoms made it possible to identify and fix in sectoral legislation such basic principles of taxation as formal certainty, proportionality, fairness, etc.

The norms of the Constitution of the Russian Federation were further developed in the decisions of the Constitutional Court of the Russian Federation, and then in the Tax Code of the Russian Federation. The Constitutional Court of the Russian Federation plays an important role in the mechanism of interaction between constitutional and tax law, the practice of which has developed valuable legal positions on taxation issues. The legal positions of the Constitutional Court of the Russian Federation, based on the Constitution of the Russian Federation, served as the basis for the formation of the ideology of the current Tax Code of the Russian Federation. In particular, the concept of tax (Article 8), the composition of legislation on taxes and fees (Article 1), and the composition of regulatory legal acts of executive authorities on taxes and fees (Article 4) were first formulated by the Constitutional Court of the Russian Federation and then recorded by the Tax Code of the Russian Federation. , the main principles of the legislation on taxes and fees (Article 3), the mechanism and moment of fulfillment of the obligation to pay tax (Article 45), general provisions on liability for tax offenses (Chapter 15), types of tax offenses (Chapter 16) etc.

The norms of the Constitution of the Russian Federation and the law enforcement activities of the Constitutional Court of the Russian Federation served in the early 90s. basis for reforming tax legislation. Many current norms of the Tax Code of the Russian Federation represent specific manifestations of the norms of the Constitution of the Russian Federation, the development of their essence.

Tax law and civil law. Tax legal relations, being a form of restriction of private property rights, are closely related to civil law regulation. The common subject of regulation in tax and civil law is property relations. However, property relations are diverse and form the subject of not only tax law, but also a number of other branches (sub-sectors) of law. The criterion for distinguishing between civil and tax law was the method of legal regulation characteristic of different branches of law.

In accordance with Art. 2 of the Civil Code of the Russian Federation do not relate to civil property relations regulated by tax, financial and administrative legislation, based on authority, unless otherwise provided by law. This rule, which establishes the priority of tax rules over civil ones, is not new in Russian legal practice. In the joint resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 No. 6/8 “On some issues related to the application of part one of the Civil Code of the Russian Federation”, attention was drawn to the fact that “in cases where a dispute resolved by the court arises from tax or other financial and administrative legal relations, it should be taken into account that civil legislation can be applied to these legal relations only if this is provided for by law.”

In some cases, tax relations, due to the direct instructions of the Civil Code of the Russian Federation, are regulated by civil law. For example, Art. 855 of the Civil Code of the Russian Federation determines the order of debiting funds from customer accounts, including payment documents providing for payments to the budget and extra-budgetary funds. Consequently, if a contradiction arises between the norms of tax legislation and Art. 855 of the Civil Code of the Russian Federation, the rules of this article apply. Based on Art. 27 and 29 of the Tax Code of the Russian Federation, representation in tax relations is formalized in accordance with the civil legislation of the Russian Federation.

Articles 11 and 19 of the Tax Code of the Russian Federation establish a rule according to which the institutions, concepts and terms of civil, family and other branches of legislation of the Russian Federation used in the Tax Code of the Russian Federation are applied in the meaning in which they are used in these branches of legislation, unless otherwise provided.

Civil legal relations entail consequences that are important for tax relations, since objects of taxation are formed, as a rule, as a result of civil transactions. The obligation to pay tax can be fulfilled by the taxpayer only after he has funds belonging to him by right of ownership, economic management or operational management. According to Art. 38 of the Tax Code of the Russian Federation, legal facts with which tax law associates the emergence of a tax obligation can be transactions for the sale of goods (work, services), property, profit, income, etc. Consequently, tax relations arise on the basis of actual property relations, legal form which are civil relations.

At the same time, tax property relations differ significantly from civil property relations. In particular, one of the criteria showing the fundamental difference between these branches of legislation is the essence of money. In civil legal relations, money manifests its essence as a universal equivalent - a universal means of payment - and is intended to reciprocally satisfy the mutual interests of the subjects of civil law. In tax relations, money exhibits a completely different essence, since it is the object of legal regulation. Within the boundaries of tax relations, money is not intended for mutual satisfaction of the property interests of subjects, but acts only as a material object in relation to which the fiscal sovereignty of the state is realized and through which part of the income of the state (municipal) treasury is formed.

A close connection between tax and civil law is observed in the subject composition. Subjects paying taxes must have civil legal capacity and legal capacity.

The unifying element of civil and tax relations is civil proceedings, since liability for violation of tax laws is implemented, like civil liability, within the framework of the legal norms of civil or arbitration proceedings.

In some cases, civil liability measures may be applied for violation of tax laws. For example, under an agreement for the provision of a tax credit (Article 65 of the Tax Code of the Russian Federation), the liability of the parties may be established in the form of a penalty (fine, penalty) paid by the taxpayer to the authorized government body in case of delay in repayment of debt and (or) payment of interest for using the tax credit. Regarding a tax credit agreement, penalties and fines are not regulated by the provisions of Art. 75 and 122 of the Tax Code of the Russian Federation, and the norms of Ch. 23 Civil Code of the Russian Federation. According to Art. 15 and 16 of the Civil Code of the Russian Federation, civil liability is applied as a result of the presentation by individuals or organizations of claims to the tax authorities for compensation for losses due to the unreasonable imposition of economic (financial) sanctions.

The relationship between tax and civil legislation is also manifested in the methods of ensuring the fulfillment of tax obligations. So, on the basis of clause 5 of Art. 64 of the Tax Code of the Russian Federation, as security for a tax credit agreement, the authorized body has the right to require from the taxpayer documents on the property that is the subject of the pledge, or a guarantee; according to Art. 72 of the Tax Code of the Russian Federation, the fulfillment of the obligation to pay taxes and fees, among other methods, can be ensured by a pledge of property, a guarantee and penalties. The named methods are traditionally used in civil circulation and are regulated by civil law. After the entry into force of the Tax Code of the Russian Federation, relations to ensure the fulfillment of tax obligations entered the circle of relations regulated by tax law. Thus, in the Russian legal system, relations have arisen that are imperative in nature and at the same time fall under the scope of tax and civil legislation, and the subjects entering into these relations simultaneously become subjects of the two named branches of legislation. The current situation is not a conflict of law, but, on the contrary, such sectoral dualism allows the balance of private and public interests to be taken into account as fully as possible when forming the revenue side of state or municipal budgets.

The significant dependence of tax law on civil legal relations necessitates the use of unified (or at least consistent) terminology by these legal communities. Unfortunately, in some cases, tax law norms either contradict civil law or introduce new categories that are not consistent with civil law relations. If the Civil Code of the Russian Federation does not provide for such a legal status of subjects, this causes serious difficulties in law enforcement activities. The fixation in tax legislation of terms that do not have a fundamental basis in civil circulation or contradict it, as well as the establishment of tax rights and obligations in isolation from the legal consequences of civil law transactions force taxpayers to violate civil law norms in order to prevent tax violations.

Tax and administrative law. The relationship between tax and administrative law is determined by the executive and administrative activities of the state. The mechanism of legal regulation of tax relations includes executive authorities that exercise state powers.

Tax and administrative law, being public sectors, use the method of government regulations as the main method of legal regulation.

At the same time, one should not identify the scope and subjects of regulation of administrative and tax law. Administrative law ensures public interests and the implementation of government functions and tasks; tax law is intended to resolve conflicts between public and private property interests. The area of administrative and legal regulation is management relations that arise in the process of functioning of executive authorities; Tax law regulates property and related non-property relations aimed at accumulating tax payments to the state.

Tax law shows relationships with criminal law. On the one hand, one of the objects of criminal law protection is the fiscal interests of the state. At the same time, the qualification of some crimes is impossible without recourse to the norms of tax law.

Thus, being part of financial law, tax law is an integral part of the unified system of Russian law. At the same time, tax law has its own specific features, the subject of legal regulation and a special combination of methods of influencing social relations, which indicates the relative independence of tax and legal norms.

Question No. 3. (tasks)

The essence and internal content of taxes are manifested in their functions, in the “work” that they perform.

Fiscal function stems from the very nature of taxes. It is characteristic of all states in all periods of their existence and development. By implementing this function in practice, state financial resources are formed and material conditions are created for the functioning of the state. The main task of performing the fiscal function is to ensure a stable revenue base for budgets of all levels. The fiscal function, therefore, is a broader concept than the function of ensuring the participation of the population in the formation of a fund for financing national needs.

It should be noted that in many developed countries the tax burden on individuals is indeed higher than on legal entities, since such a structure of the tax system is a stronger incentive for economic development. Reducing the tax burden on legal entities contributes to an increase in their number and growth in production, which ensures an increase in the number of employees.

However, the implementation of the fiscal function of taxes has objective and subjective limitations. With insufficient tax revenues and the impossibility of reducing government spending, one has to resort to searching for other forms of income. First of all, this is an appeal to internal and external state, regional, and local loans. The placement of loans leads to the formation of public debt.

However, servicing the public debt at the expense of the budget will require increasing taxes in the future (increasing tax rates, introducing new taxes). At the same time, an increase in the tax burden may again encounter insurmountable restrictions, cause increased dissatisfaction among taxpayers and a decline in production, which will prompt the placement of new loans. There will be a danger of the formation of a financial pyramid, and therefore financial collapse. Domestic experience has clearly confirmed this: the excessive scale of the issue of state bonds caused a default and devaluation of the ruble in August 1998, and the financial crisis of 2009 led to a decline in production and, accordingly, to a decrease in corporate income tax revenue by 45% compared to 2008.

Thus, the share of funds coming to the budget through the implementation of the fiscal function of taxes during a decline in business activity decreases, since the amount of tax revenue to the budget directly depends on the amount of income of payers.

Regulatory function is of particular importance in modern conditions of anti-crisis regulation, active influence of the state on economic and social processes. This function is related in a temporary aspect to the distribution of tax payments between legal entities and individuals, spheres and sectors of the economy, the state as a whole and its territorial entities. This function allows you to regulate the income of different groups of the population. Tax regulation is implemented through a system of benefits and a system of tax payments and fees.

The purpose of applying tax benefits is to reduce the size of the payer's tax obligations. Depending on what element of the tax structure the benefits are aimed at changing, they can be divided into exemptions, discounts, and tax credits.

Exemptions are a tax benefit aimed at removing certain objects from taxation (for example, a tax-free minimum). Discounts are understood as benefits aimed at reducing the tax base. In relation to taxes on profits (income) of organizations, discounts are associated not with income, but with the expenses of the taxpayer, in other words, the payer has the right to reduce the profit subject to taxation by the amount of expenses he has made for purposes encouraged by the state. A tax credit is a benefit aimed at reducing the tax rate or salary amount.

Depending on the type of benefit provided, tax credits take the following forms:

· reduction in tax rate;

· reduction of the salary amount (complete exemption from paying tax for a certain period - the possibility is provided for in Article 56 of the Tax Code of the Russian Federation - called tax holidays);

· refund of previously paid tax or part thereof;

· deferment and installment payment of taxes, including investment tax credit;

· offset of previously paid tax;

· replacement of payment of tax (part of tax) with payment in kind.

The regulatory function is aimed at regulating the financial and economic activities of producers of goods and services through a system of tax payments and fees accumulated by the state and intended to restore spent resources (primarily natural ones), as well as to expand the degree of their involvement in production in order to achieve economic growth. These deductions, as a rule, have a clear industry focus. What types of taxes and fees can legitimately include the tax on the use of subsoil, the tax on the reproduction of the mineral resource base, the fee for the right to use objects of the animal world and aquatic biological resources, the forest tax, the water tax, the environmental tax, the property tax, the road tax, the transport tax , land tax.

The regulatory function of taxes is manifested not only in the sphere of production, but also through the solvency of individuals - in the market of supply and demand for goods and services, in the sphere of exchange and consumption.

Social function taxes are closely related to fiscal and regulatory functions through the conditions for collecting income and property taxes. Taxes are levied in larger amounts on the wealthy, while a significant share of them should go to the poor in the form of social assistance.

Specific mechanisms for implementing the social function of taxes provided for by part two of the Tax Code of the Russian Federation include insurance payments; In addition, in relation to the personal income tax, lists are provided: of income not subject to taxation; standard tax deductions; professional tax deductions. At the same time, in Art. 224 of the Tax Code of the Russian Federation contains a list of income on which tax is levied at increased rates.

The importance of the social function of taxes increases sharply during economic crises, when a large part of the population needs social protection.

In practice, in the Russian tax system, the social function of taxes levied on the population is not fully realized. This is primarily due to the imperfection of tax legislation.

Along with the named main functions of taxes, other additional functions are mentioned in the economic literature:

· the function of limiting the economically unjustified growth of profits of monopoly producers in the market of goods and services, as well as socially unjustified incomes of citizens;

· anti-inflationary function - limiting the growth of prices and incomes while maintaining a balance in the value of GDP and the financial resources at the disposal of the state and enterprises, used for consumption and accumulation.

· The control function creates the prerequisites for maintaining cost proportions in the process of formation and distribution of income of different economic entities. Thanks to it, the effectiveness of each tax channel and the “tax press” as a whole is assessed, and the need to make changes to the tax system and tax policy is identified.

· It should be noted that it would be incorrect to identify the control function of taxes with tax control (Article 82 of the Tax Code of the Russian Federation) carried out by tax and customs authorities, bodies of state extra-budgetary funds. The task of the listed departments is to monitor compliance with tax legislation through tax audits in various forms.

· In our opinion, the performance of these functions by taxes is realized when they carry out their main functions (fiscal, regulatory, social, control). Of decisive importance will be the development of a system of taxation of legal entities and individuals, establishing the ratio of direct and indirect taxes on profit, income and property, tax rates and mechanisms for their construction, the procedure for determining the object of taxation and providing benefits to taxpayers.

· The theoretical definition of functions does not mean that the tax system adopted by law will act in a given direction. The functional capacity of the taxation system adopted by the law of a particular country is determined not only by theory, but also by practice. The degree of practical use of tax potential determines the role of taxes in the existing economic and financial systems. Thus, the essence of the tax is the same, but the practical forms of its implementation differ depending on the specifics of the economic policy being pursued, the type of state, its tasks and the purposes of collecting the tax.

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Itemtax law

The subject of legal regulation, understood as a set of social relations regulated by law, is an objective criterion that lies outside the law. The basis for identifying the subject of a branch of law, therefore, is the specificity of objectively existing (independent of the discretion of law-making bodies) connections between social relations, the originality of which is determined by their purposefulness, content and form.

Obviously, the subject of tax law is social tax relations.

The subject of tax law includes:

Consolidating the structure of the tax system;

Distribution of competence in this area between the Federation and its constituent entities, local self-government represented by relevant bodies;

Regulation on the basis of these initial norms of relations arising in the process of establishing and collecting taxes and fees from organizations and individuals in the budgetary sphere or in state extra-budgetary funds;

Implementation of tax control;

Application of measures of financial and legal responsibility for violation of tax laws;

Appealing acts of tax authorities, actions (inaction) of their officials.

Relations subject to regulation by the rules of tax law are specific, but do not have qualitative originality, being part of the subject of financial law regulating social relations arising in the process of formation, distribution and use of funds of funds necessary for the implementation of the tasks and functions of the state and municipalities.

Social relations in the field of taxation are directly related to state tax control and management of economic and social development of society through the taxation mechanism. These relations, covering various areas of state, property, power and administrative relations, constitute the subject of tax law.

Tax law method

An auxiliary basis for the distribution of legal norms by industry is the method of legal regulation. With its help, the relationship of rights and obligations between participants in legal relations regulated by the industry is carried out.

The legal relations that arise between government organizations, tax payers and tax representatives are authoritative. According to Art. 2 of the Tax Code of the Russian Federation, the legislation on taxes and fees regulates power relations regarding the establishment, introduction and collection of taxes and fees in the Russian Federation, as well as relations arising in the process of tax control and prosecution for committing a tax offense.

Thus, the basis of the tax law method is the method of regulations of a power-property nature, i.e., the use of unambiguous rules that do not allow choice for the purpose of forming state and local budgets. The activity of each of the subjects of the tax legal relationship is not free: the public body acts strictly in accordance with its competence, and the other party (the obligated person) is obliged to strictly fulfill the legal will of the authority or official acting within its competence. The difference between taxes and other forms of economic regulation is that their approval does not leave any discretionary power to the tax administration. Discretion (from Latin discrete) is a decision by an official or government body of any issue at its own subjective discretion.

The rights and obligations of subjects of tax law may arise from the rules of law or from sanctions and procedures for their application. The tax law method is formed from these components.

A different combination of methods and techniques of legal influence on public tax relations determines its special legal regime, the method by which the regulation of this sphere of social relations is carried out. At the same time, the similarity between the methods of financial and tax law is clearly visible.

Tax law is a branch of the legal system of the Russian Federation that regulates public relations in the field of taxation, i.e. relations in connection with the collection of taxes and other obligatory payments, the organization and functioning of the system of tax regulation and tax control bodies at all levels of government and local government. The predominantly authoritative nature of these relations does not mean that tax law is indifferent to the regulation of property relations arising from power relations.

Tax legal relations

Tax legal relations are state-protected social relations that arise in the field of taxation, which represent a socially significant connection between subjects through the rights and obligations provided for by the rules of tax law.

In the literature, tax legal relations are usually defined as a type of financial legal relations regulated by the rules of tax law, representing a set of the following legal relations:

on the establishment, introduction and collection of taxes and fees in the Russian Federation;

arising in the process of fulfillment by the relevant persons of their tax obligations for the calculation and payment of taxes or fees;

arising in the process of tax control and control over compliance with tax legislation of the Russian Federation;

arising in the process of protecting the rights and legitimate interests of participants in tax legal relations (taxpayers, tax authorities, the state, etc.), that is, in the process of appealing acts of tax authorities, actions (inactions) of their officials, as well as in the process of tax disputes;

arising in the process of bringing to justice for tax offenses.

2. Tax legal relations have the following features:

This is a social relationship, that is, a relationship between legal entities or individuals that has social significance. Personal relationships, for example, between a specific taxpayer - an individual entrepreneur and the head of a tax authority do not have public significance and do not require special legal regulation by tax law;

a legal relationship regarding funds that arises (develops and ends) exclusively in the field of taxation;

socially significant relationship - regulated by tax law. Tax legal relations are essentially normative legal relations; they are inextricably linked with the norms of tax law - they arise and cease on the basis of, in accordance with and within the framework of the norms of tax law;

represents a legal connection between the subjects of such legal relations through subjective rights and legal obligations. In this case, the subjective right belongs to an authorized person (for example, a tax authority), who has certain powers. The bearer of a legal obligation is an obligated person in a legal relationship and acts as a taxpayer who is obliged to perform certain legally significant actions in favor of the state or to refrain from any actions;

the grounds for the emergence, change and termination of tax legal relations are provided for in tax legislation.

The composition of a specific tax legal relationship is understood as the totality of its participants, that is, the subjects of tax legal relations. At the same time, in accordance with the systematic approach, the rights and obligations of these entities (taxpayers, etc.) as part of the tax legal relationship act as their legal properties.

The structure of tax legal relations refers to the internal

the structure and interrelation of the elements of such a legal relationship. The structure of tax legal relations, as well as the structure of any legal relations, is formed by the following three elements:

subjects of legal relations;

object of legal relationship.

The subjects of tax legal relations are its participants (parties). The legal content of tax legal relations is formed by the subjective rights and legal obligations of these subjects - participants in the social relations under consideration. At the same time, the material content of tax legal relations represents the behavior of the parties (action or inaction) associated with the implementation of their rights and obligations. The object of tax legal relations is what or for the sake of which the subjects of legal relations in the field of taxation enter into a legal relationship. The object of legal relations is a variety of material and intangible benefits.

In the process of taxation, the structure of the tax legal relationship, on the one hand, is determined by the content of the rights and obligations of the subjects (legal structure), on the other hand, it is manifested in the behavior of the subjects in the implementation of rights and obligations (actual structure). In the case of lawful behavior of the participants in the tax legal relationship, there is a coincidence of the legal and actual tax structures; if there is a discrepancy, there is a violation of the tax legislation of the Russian Federation, an offense or a tax crime.

According to Art. 9 of the Tax Code of the Russian Federation participants in relations regulated by legislation on taxes and fees:

organizations and individuals recognized in accordance with the Tax Code of the Russian Federation as taxpayers or payers of fees;

organizations and individuals recognized as tax agents in accordance with the Tax Code of the Russian Federation;

Ministry of the Russian Federation for Taxes and Duties and its divisions in Russia;

State Customs Committee of the Russian Federation and its divisions;

state executive bodies and executive bodies of local self-government, other bodies and officials authorized by them, who in the prescribed manner, in addition to tax and customs authorities, receive and collect taxes and (or) fees, as well as control over their payment by taxpayers and payers of fees (tax collectors and fees);

Ministry of Finance of the Russian Federation, ministries of finance of republics, financial departments (departments, departments) of administrations of territories, regions, cities of Moscow and St. Petersburg, autonomous region, autonomous districts, districts and cities (financial authorities), other authorized bodies - when resolving issues of deferment and installment payment of taxes and fees and other issues provided for by the Tax Code of the Russian Federation;

bodies of state extra-budgetary funds.

In addition, participants in tax legal relations include:

* bodies carrying out registration of organizations and individual entrepreneurs, place of residence of an individual, acts of civil status, accounting and registration of property and transactions with it (registrars);

* guardianship and trusteeship authorities, social institutions,

* procedural persons participating in tax control activities (experts, specialists, translators, attesting witnesses, witnesses),

* credit organizations (banks).

Principles of tax law

tax law state legal relationship

1. In legal science, principles are usually understood as the fundamental guiding principles and ideas enshrined in the current legislation that express the essence of the norms of a given branch of law and the main directions of state policy in the field of legal regulation of relevant social relations.

The principles of tax law represent a coordinate system within which it develops, and, at the same time, a vector that determines the direction of development of this industry, which is especially important for tax law in general in the context of ongoing tax reform. In conditions when the generally accepted concept of the construction and development of the tax system of the Russian Federation has not yet been fully developed, the guidelines for the country's tax policy have not been determined at the state level, the principles of tax law become value guidelines, a vector for the development of such a complex socio-economic phenomenon as the tax system.

The principles of tax law are fundamental and guiding ideas, leading provisions that define the principles of tax law. These general principles find their expression directly in the norms of tax law.

In accordance with the provisions of Part 3 of Art. 75 of the Constitution of the Russian Federation, general principles of taxation and fees must be established by federal law.

In 1997, in a ruling on one of the cases on checking the constitutionality of acts of legislation on taxes and fees, the Constitutional Court of the Russian Federation noted that “the general principles of taxation and fees are among the basic guarantees, the establishment of which by federal law ensures the implementation and observance of the foundations of the constitutional system, fundamental rights and freedoms of man and citizen, principles of federalism in the Russian Federation"1. Thus, the Constitutional Court of the Russian Federation pointed to the general value and humanitarian legal nature of the sectoral principles of tax law.

2* The principles of tax law include general principles of taxation (both economic and legal). But not all economic principles are implemented in legislation. For example, at present, the principle of economic efficiency of taxation and the associated principle of profitability of tax measures, the content of which is that budget revenues from a particular type of tax should not exceed the costs of its introduction and collection, have not been enshrined in the Tax Code of the Russian Federation. As noted by economists, today taxes such as personal property tax and inheritance or gift tax do not meet this principle2.

3* The principles of tax law are divided into two types:

socio-legal (as a rule, they have general legal significance);

special legal principles. Social and legal principles include principles inherent in other branches of law: legality, humanism, democracy, equality. Special legal principles (in the literature they are also called industry principles) determine the specifics of tax law. In some cases, the literature highlights economic principles of taxation, principles of tax law and principles of organization of the tax system. However, it should be taken into account that the most important economic principles of taxation for legal science (for example, the principle of the economic basis of taxation) and the organizational principles of the tax system (for example, the principle of its unity) are also principles of tax law.

4. The main (basic) principles of tax law include:

* principle of legality of taxation;

the principle of universality and equality of taxation;

principle of tax fairness;

the principle of levying taxes for public purposes;

the principle of establishing taxes and fees through due process;

the principle of the economic basis of taxes (fees);

the principle of presumption of interpretation in favor of the taxpayer (payer of fees) of all irremovable doubts, contradictions and ambiguities of acts of legislation on taxes and fees;

principle of certainty of tax liability;

the principle of the unity of the economic space of the Russian Federation and the unity of tax policy;

the principle of unity of the system of taxes and fees, etc.

The relationship between tax law and other branches of law

Modern tax law as a sub-branch of financial law and the corresponding area of Russian legislation is rapidly developing, as a result of which the subject of legal regulation of tax relations is being specified and its internal institutions are being updated.

In the science of financial law there is no fundamental disagreement regarding the concept of tax law. Tax law represents a set of legal norms governing relations and social ties that arise between certain entities when establishing, introducing and collecting taxes. Some authors define tax law as a sub-branch of financial law based on its own principles, the rules of which regulate the relations that arise in connection with the organization and implementation of tax exemptions from individuals and organizations.

The relations and social connections that arise between private and public entities in the process of tax activities of the state and local government are multidimensional, complex in nature and, in their social, political and legal content, are initially conflicting. At the same time, tax relations are extremely important for the life of the entire state, and therefore must be comprehensively regulated by legal norms. At the same time, the systemic organization of these norms, enshrined in regulatory financial acts of various territorial levels, forms tax law.

All branches or sub-sectors of law are distinguished primarily by the subject of legal regulation. The subject of legal regulation is formed by relations characterized by the following features:

a) stability and repeatability, which gives the legislator the opportunity to record the legal relations of subjects with sufficient accuracy;

b) the ability to exercise external legal control;

c) being in the legal field, i.e. under the jurisdiction of law.

Determining the subject of tax law makes it possible to limit it from other components of financial law and branches of Russian law. Thus, we can say that tax law is a sub-branch of financial law, the rules of which, by imperative and dispositive methods, regulate the totality of homogeneous property and associated non-property social relations that develop between the state, taxpayers and other persons regarding the establishment, introduction and collection of taxes in income of the state (municipal entity), implementation of tax control and prosecution for tax violations.

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Introduction of the dissertation (part of the abstract) on the topic “Interaction of civil and tax law in regulating relations with the participation of entrepreneurs”

The study of the interaction of civil and tax law1, a particular issue in relation to the problem of interaction between legal branches and individual institutions, involves a comprehensive study of legal relations, the features of their legal regulation, and a number of conflict of laws issues that arise at the intersection of civil and tax law. Of course, such an analysis is possible both from the perspective of civil and tax law. This work is devoted mainly to civil law, those characteristic features that arise in the civil law sphere, in private business under the influence of imperative tax law in general. The dissertation research also analyzes the possibilities of civil law, determined by its characteristic features, implemented by taxpayers, primarily entrepreneurs, when collecting taxes.

Starting to analyze the interaction of civil and tax law, one cannot help but pay attention to the non-application of civil law norms to tax relations and vice versa, which is directly confirmed by paragraph 3 of Article 2 of the Civil Code of the Russian Federation as amended and supplemented (hereinafter referred to as the Civil Code of the Russian Federation)2.

At the same time, when studying the interaction of civil and tax law, one should take into account the nature of the various relationships that arise in economics.

1 In accordance with the terminology established in the doctrine of financial law, in this work tax law is understood as a sub-branch of financial law.

2 Collection of Legislation of the Russian Federation, 1994, N32, Art. 3301, Collection of Legislation of the Russian Federation, 1996, N5, Art. 410, Collection of Legislation of the Russian Federation, 1996, N9, Art. 733, Collection of Legislation of the Russian Federation, 1996, N34, Art. 4025, Art. .4026; 1997, N43, article 4903. ical sphere, including those related to the collection of taxes. This, in turn, indicates the need for a fairly balanced approach to the application of the above rule, clause 3, article 2 of the Civil Code of the Russian Federation.

There is no doubt that civil law interacts not only with tax law as part of financial law, but also with other components of the latter, as well as with other legal branches. In particular, an analysis of the external form of law, its sources, shows the close interaction of civil legislation regulating civil legal relations complicated by a foreign element, and currency legislation. However, the collection of taxes, and, consequently, the tax law regulating this process, occupies a special place in the lives of citizens and in business activities, the main goal of which is achieved in the field of civil law.

Relevance of the topic. Issues related to taxation have almost always interested researchers, since the very existence of this institution is associated with taxes - state revenues. During the Soviet period, taxes were also recognized as one of the sources of funds for the treasury3. At the same time, taxation at that time did not have such a great impact on the private sphere as it does today, which is due to the virtual absence of the latter in its modern understanding. The fact is that in the era of the construction of socialism and communism, firstly, the role of everything private was noticeably diminished, which was manifested almost everywhere and primarily in the absence of private property, and, secondly, the only owner of state enterprises - the main taxpayers - there was a state that allowed

3 See: Tsypkin S.D. Legal regulation of tax relations in the USSR, M., state publishing house of legal literature, 1955, 76 e., S.Z. him to seize and dispose of significant funds of these, as well as other entities, in other ways4.

The emergence of economic entities that are property independent of the state, the formation of a layer of entrepreneurs whose main goal is to receive rather than give profit, force us to take a fresh look at civil and tax law, at the problem of their interaction, especially at the side that is associated with entrepreneurship. For example, modern economic realities require a different look at the thesis expressed in the past in the literature that when taxes are collected from enterprises and organizations, there is no transfer of ownership of funds from one entity to another5.

During the transition period, at the stage of deepening market relations, processes of formation and improvement of both civil and tax legislation take place. However, neither civil nor tax law should, despite the difference in the subject and method of legal regulation, develop in isolation from each other. This is explained by very specific reasons: firstly, both tax and civil law are part of a single system of domestic law, and, secondly, tax law is designed to regulate fairly specific tax relations that are formed in the field of economics, where there is a fairly large mass of legal relations ( if not their majority) is based on the principles of civil law6, enshrined in paragraph 1 of Article 2 of the Civil Code of the Russian Federation.

4 On non-tax methods of raising income in the USSR, see: Tsypkin S.D., op. cit., pp. 10-11.

5 Tsypkin S.D., op. cit., P.15.

6 See: Gerasimenko S.A. Protection of taxpayers' rights in arbitration court // Incorporation Workshop, 1994, issue 5, p.6.

The latest legislation, modern legal practice, including judicial practice, provide grounds for a detailed study of the problem posed. For example, the Resolution of the Constitutional Court of Russia dated April 4, 1996 in the case of checking the constitutionality of a number of regulations of the city of Moscow and the Moscow region, the Stavropol Territory, the Voronezh region and the city of Voronezh, regulating the procedure for registering citizens arriving for permanent residence in these regions, is widely known7. In this judicial act, first of all, attention is drawn to the conclusion that “taxation always means certain restrictions on property rights,” which is contained in paragraph 4, paragraph 5. Thus, today at the level of judicial practice it becomes obvious that there is a close relationship between civil and tax law, the need for simultaneous consideration and analysis in the practical implementation of a number of rules of civil and tax law.

The relevance of studying related issues of civil and tax law is also noted in the scientific literature. Thus, G.V. Petrova points out the need for legal research and comparative analysis of civil and tax legislation8.

According to the dissertation author, since the study analyzes the dialectics of the interpenetration of private and public law based on the material of civil and tax law, the work makes it possible to revisit the issue of the relationship between private and public law. Consideration of the last problem, in our opinion, is still important today, because “the division of law into private and public is not

8 Petrova G.V. Tax legislation: problems of improvement and codification. Report on the discussion of current problems of legal regulation of tax relations // State and Law, 1995, N11, pp. 149-154, pp. 152. historical accident"9. Analysis of the relationship between private and public law also indicates the scientific relevance of the chosen aspect of legal research, since modern literature10 indicates that this issue has not actually been developed and needs scrupulous research.

It is important to emphasize that the study of the relationship between civil and tax law is in the context of modern legal research, since the relationship between individual divisions of law has not been deeply analyzed, not only in terms of the named legal entities11. The same picture is noted by specialists in criminal law, for example, Z.A. Neznamova and S.S. Belousova12.

The choice of research topic, apparently, is not accidental. It is no coincidence that there is a certain narrowing of the problem, a concentration on the figure of the entrepreneur (collective and individual). The fact is that a significant part of tax revenues to the budget comes from taxes paid by persons engaged in entrepreneurial activities who receive profit, as noted, using civil law methods. Thus, the bulk of local taxes and fees,

9 Agarkov M.M. The value of private law // Jurisprudence, 1992, N1, pp. 24-41, p. 41.

10 See Boytsova V.V., Boytsova L.V. Interpretation of the principle of state responsibility for damage caused to citizens in the practice of the Constitutional Court of the Russian Federation // State and Law, 1996, N4, pp. 48-58, p. 58.

11 The expression "legal education" is used in modern literature to refer to various subdivisions of law. See, for example: Tikhomirov Yu.A. Comparative Law Course. - M.: Publishing house NORMA, 1996. - 432 p.

12 See: Neznamova Z.A. Collisions in criminal law. Monograph, Publishing house "Cricket". 1994. -284 p. - P.10; Belousova S.S. Criminal liability for tax evasion, abstract of a dissertation for the degree of candidate of legal sciences, M., 1996, P.8. the share of which in the budget of the Republic of Tatarstan is constantly increasing13 is contributed by entrepreneurs. As a matter of fact, the same conclusion can be drawn from an analysis of the content of Article 21 of the Law of the Russian Federation “On the Fundamentals of the Tax System in the Russian Federation”. Along with this, from the analysis of the content of Art. 12 of the Law of the Republic of Tatarstan “On the budget system of the Republic of Tatarstan for 1997”14, which determines, among other things, the size and structure of tax revenues of the republican budget, it is also clear that the main burden of the tax burden lies on persons engaged in entrepreneurial activities. The same conclusion follows from Art. 16 of the Federal Law "On the Federal Budget for 1997", reflecting the receipt of tax revenues of the federal budget in 1997, from Art. 14 of the Law of the Republic of Tatarstan "On the budget system of the Republic of Tatarstan for 1998"15.

Further, it should be noted that there is a multidirectionality of goals achieved by means of tax and civil law, since the collection of taxes entails the withdrawal of the very profit (part of it) for the systematic receipt of which in accordance with paragraph 3, paragraph 1, article 2 of the Civil Code of the Russian Federation and entrepreneurial activity is directed.

From here it is clear that civil law welcomes private initiative, providing a wide range of techniques and ways to make a profit. At the same time, tax law limits such private initiative to a certain extent, being an instrument for withdrawing such profits. Thus, in actions

13 See: Kapkaeva N.Z. About local taxes // Materials of the All-Russian scientific and practical conference "Reforming the economy: financial and credit aspect", Kazan, publishing house of the Kazan Financial and Economic Institute, 1996, pp. 53-55.

15 "Republic of Tatarstan" dated January 13, 1998. The recipient simultaneously manifests, using the expression of M.M. Agarkov, private law and public law motivation. Consequently, in the absence of developed tax legislation, as stated by the Constitutional Court of the Russian Federation in paragraph 4 of the Resolution of February 18, 199716, a detailed study of the impact of the tax sphere on private business relations is necessary.

The purpose of the study is a legal analysis of the problem of interaction between civil and tax law in regulating relations with the participation of entrepreneurs. Based on this goal, the author sets the following tasks:

1. Study of the problem of the relationship between private and public law and its manifestation in the legal regulation of business relations, including relations related to the collection of taxes from entrepreneurs.

2. Analysis of the general and special in the subject and method of civil, administrative, tax regulation of economic relations and the establishment on this basis of the main manifestations of the interaction of civil and tax law.

3. Identification of the prerequisites for the interaction of civil and tax law, including in the field of regulation of business activities.

4. Study of the interaction of individual institutions of civil law, in particular the institution of civil contract and the institution of civil liability, and tax law.

5. Analysis of contradictions in civil and tax law and their impact on business activities.

Objects of dissertation research. The dissertation is based on the latest civil, tax and other legislation regulating relations with the participation of entrepreneurs, judicial practice, including the Constitutional Court of Russia and the Supreme Arbitration Court of the Republic of Tatarstan, as well as research by leading domestic scientists in the field of legal theory, civil and financial law.

Theoretical basis of the dissertation research. Consideration of an issue that simultaneously concerns two or more legal branches and branches of legislation is unthinkable without turning to the richest domestic scientific thought. In his work, the author relies on the research of domestic legal scholars, specialists in the theory of state and law, and civil law researchers. In particular, the author bases his research on the position expressed by Professor V. ATarkhov, according to which “the legal regulation of one type of relationship is always associated with the legal regulation of other relations”17.

It is quite obvious, based on the name and purpose of the study, that in the work it was necessary to use the experience of civil scientists, researchers

17 Tarkhov V.A. Civil law. A common part. Lecture course. - Cheboksary: Chuv.kn. publishing house, 1997.-331 p.-p.131. economic (entrepreneurial) law, and scientists - specialists in the field of financial law (N.I. Khimicheva, etc.), as well as economic theory.

Methodological basis of the dissertation research. The dissertation research is based on the use of a systematic analysis of the phenomena under consideration. This research method is reflected in the works of S.S. Alekseev18 and other scientists. In combination with this, the study uses dialectical, formal-logical methods, the method of comparative legal research, as well as the method of concrete sociological research.

Scientific novelty of the dissertation research. Essentially, this work is the first comprehensive scientific study of the interaction of civil and tax law, which is analyzed from the standpoint of dividing law into private and public. In the dissertation, the norms of civil law are considered in connection with the norms of tax law, which allows for a comprehensive study of the interaction of these units of law in individual civil law institutions in the field of entrepreneurship, in particular, the interaction of the institution of civil liability, as well as the institution of a civil law contract with the tax authorities. right. The work, based on the latest civil and tax legislation, examines the influence of the public law sphere on the private law sphere. The dissertation author has established a legal prerequisite, identified specific cases of interaction between civil and tax law, and made proposals to the legislator to ensure the interaction of civil and tax law.

Recently, a number of special works have appeared in the literature, which analyze the relationship between certain norms of private and public law, in particular

18 See: Alekseev S.S. The structure of Soviet law. M., 1975. sti, to one degree or another, simultaneously devoted to both issues of civil and tax law. Among them are the works of V.V. Vitryansky, S.A. Gerasimenko, A.Ya. Kurbatov, I.Kh. Makarova, A.A. Manukyan, G.V. Petrova and other authors19. However, until now there has been no comprehensive scientific study of this problem.

Analysis of the problem posed allowed us to present the following main conclusions and provisions for defense, reflecting the scientific novelty of the dissertation research:

1. The legal prerequisite for the interaction of civil and tax law is that civil and tax law, coexisting within a single system of law, make it necessary for the same subjects to build their behavior guided by the norms of both legal entities and regulate, albeit with different techniques, relations property.

2. The legal result of the interaction of both civil and tax law is their mutual influence, expressed, in particular, in the form of the influence of tax law on the implementation of civil law and the influence of civil law on tax law.

19 See: Kurbatov A. Basic forms of interaction between civil and tax legislation // Economy and Law, 1996, N6, pp. 57-62; Makarova I.Kh. General aspects of civil and tax relations // Materials of the All-Russian Scientific and Practical Conference, Ekaterinburg, 1995, pp. 167-168; Manukyan A.A. Restrictions on property rights under the legislation of the Russian Federation, abstract of a dissertation for the degree of candidate of legal sciences. - M. - 1997; Petrova G.V. Responsibility for violation of tax laws. - M.: INFRA-M, 1995.-144 p.; Petrova G.V. Interaction of tax and civil law norms in the book: Petrova G.V. Tax law. Textbook for universities. - M.: Publishing group INFRA-M - NORMA, 1997. - 271 p. - P.191-196, etc.

3. There is a need for a comprehensive, that is, simultaneous and unambiguous solution in both civil and tax legislation of issues related to the problem of interaction between civil and tax law, in particular the issue of protecting the rights of taxpayers.

4. The practice of using a number of civil law concepts in tax law should be legislated. In particular, it is necessary to supplement the draft Tax Code of the Russian Federation with the following norm: “Unless otherwise established in this code, then when interpreting the norms of this code on the object of taxation, including civil law concepts, the provisions of civil law are used.”

5. Relations between tax authorities and taxpayers arising as a result of unlawful actions (inaction) of the former and affecting the property rights of the latter must be mediated primarily by civil law, which must be expressly stated in the Tax and Civil Codes. Legal regulation of these relations should be carried out using the institution of civil liability.

6. It is necessary to change the rules on the limitation period in civil legislation in relation to the demands of taxpayers-legal entities to invalidate the relevant acts of the tax authorities and to return from the budget amounts written off by the tax authorities in the direction of increasing the limitation periods to the value of the limitation periods established in the tax legislation , the expiration of which extinguishes the possibility of bringing a person to justice for a tax offense.

7. A civil contract in the field of entrepreneurial activity is interconnected with the tax obligations of the entrepreneur, which is manifested, firstly, in the fact that as a result of the fulfillment of contractual obligations, in most cases an object of taxation arises; secondly, in the influence of tax law on the implementation of the principle of freedom of civil contract; thirdly, that a civil contract is an effective means of tax planning.

8. The possibility of implementing tax planning as a system of various organizational and legal measures, including civil measures, not prohibited by law, implemented by entrepreneurs based on taking into account the results of fulfilling tax obligations in business activities and aimed at limiting tax obligations, should be enshrined in legislation.

The practical significance of this work is as follows. In his interview with Rossiyskaya Gazeta, the Prosecutor General of Russia Yu.I. Skuratov noted that “we are experiencing a time of a system-wide crisis of the rule of law”20. Such a crisis is clearly manifested in the tax sphere in the form of tax non-payments, which ultimately affects the state’s financing of the public sector (higher education, medicine, etc.). It seems that resolving the current situation is possible only with the help of a set of measures aimed at strengthening both the fiscal and incentive functions of taxes. Studying the problem of interaction between civil and tax law, which makes it possible to develop recommendations for practical ensuring the consistency of civil and tax law, can, in our opinion, have a positive impact on solving the problem of tax non-payments.

20 See: article “The dictatorship of the law will not allow a dictator to power” in “Rossiyskaya Gazeta” dated October 17, 1996.

As noted above, the dissertation research also addresses the problem of the Russian legal system, in particular, the problem of the relationship of system-forming elements within this system.

In practice, the question currently arises not only about the internal contradictions of tax law21, mostly explained by the complex path (in many ways this is the path of “trial and error”) of the formation of the Russian tax system in the direction of the Tax Code22, but also conflicts of civil and tax law, significantly influencing primarily the private legal sphere of entrepreneurs. Today literally everyone is talking about certain contradictions within the legal system, in particular about the lack of relationship between tax and civil law23. Moreover, existing relationships are not taken into account in the draft Tax Code of the Russian Federation24.

21 On this, see, for example, the following work by the head of the Tax Reform Department of the Ministry of Finance of Russia: Ivaneev A.I. Taxation of foreign companies and enterprises with foreign investment. - M.: International Center for Financial and Economic Development, 1997. - 128 p. - p.112 et seq.

22 The latest Address of the President of the Russian Federation to the Federal Assembly on the situation in the country and the main directions of policy of the Russian Federation (Rossiyskaya Gazeta dated March 7, 1997, P.5-12) notes the need to adopt the Budget Code (C.7), in scientific In the literature, there is also a proposal to adopt a Uniform Unified Tax Code of the CIS countries, about this see: Petrova G.V. Legislation on taxes in the CIS member states // Legislation and economics. -1996. - N9/10, P.42-46.

23 See, for example, reviews of taxes in the Kommersant magazine N6 (165) dated February 27, 1996, N22 dated June 18, 1996, etc.

24 On this, see, for example, Kucherenko V. Taxes should be such that it is more profitable to pay them than to run away from them // "Rossiyskaya Gazeta" dated December 9, 1995 N 239 (1350), p.6.

The contradictions of civil and tax law are also reflected in the latest Address of the President of the Russian Federation to the Federal Assembly on the situation in the country and the main directions of policy of the Russian Federation. Here, section 4.2 notes the need for such an area of reforming the Russian tax system as codifying the rules governing the relationship between the taxpayer and tax authorities in order to eliminate contradictions in civil and tax legislation and ensure the protection of taxpayers’ rights.

Identification of contradictions in the coexistence of civil and tax law will make it possible to indicate possible ways to overcome them, and further generalization of theoretical and practical material in the chosen direction will, in turn, make it possible to understand to a certain extent the mechanism of interaction between civil and tax law.

Further, it should be noted that this study has some significance for improving financial law. The work of K.S. Velsky outlines the task of the modern stage of legal regulation of financial relations: the creation of a new financial law25. In the opinion of the said author,26 such new financial law requires, in particular, clarification of its subject matter, that is, a more precise definition of the range of relations it regulates. Further, K.S. Belsky, speaking about this task, notes that “the science of financial law needs to understand its own scientific economy, take an inventory of all values, share them with the science of civil law on a gentlemanly basis, throw away unnecessary trash and pay attention to the problems which were prohibited

25 See: Belsky K.S. Financial law - M.: Lawyer, 1994. - 208 p. - P.5.

26 Velsky K.S., op. cit., p.6. has been underway since the late 20s."27. The last goal can be achieved, in our opinion, including through a joint comprehensive study of social relations emerging in the economy both from the standpoint of civil law and from the standpoint of part of financial law - tax law28.

Thus, in light of the work being carried out in Russia to systematize and improve legal material, within the framework of the formation of a unified updated system of Russian law, this work will allow the author to make his contribution to this process. Consequently, the next aspect of practical significance is that the dissertation research has implications for practical work to improve the Russian legal system.

Further, it is important to note the significance of this study for understanding such a phenomenon as law, especially for an in-depth study of civil law and, in particular, the set of norms of the latter related to business activities. Understanding phenomena, including legal ones, in their interconnection and interdependence gives, in our opinion, a holistic view of the world around us. This idea is of great importance, especially in practical activities, when, when solving a number of issues, it is necessary to take into account the influence of a whole range of different factors, and none of them can be “thrown out” or excluded from view in order to correctly solve the problem. The results of the dissertation research can be used: - in legislative practice, to improve the domestic legal system;

27 Belsky K.S., op. cit., p.7.

28 On the possibility of separating tax law, see below.

In further scientific research on current problems of both civil and tax law, and on related legal problems that arise here;

In the practical activities of arbitration courts, tax authorities of Russia, special law enforcement agencies, the legal profession, legal services of organizations;

When reading training courses on civil and tax law, business law, a number of special courses addressing the problems of business law, as well as special courses affecting such an institute of civil law as a civil contract.

Approbation of research results. The conclusions and provisions contained in this dissertation were introduced by the author into the educational process in his teaching activities, and were also used in protecting the rights of taxpayers in tax authorities and arbitration courts.

The main provisions of the dissertation research are covered in speeches at scientific conferences and published in print.

1. Some issues of interaction between tax and civil legislation in modern conditions // Economic and Legal Bulletin. - Kazan, 1995. -N4. - P.20-26.

2. Civil law agreement and tax legislation // Scientific notes of the Kazan Financial and Economic Institute. Issue 15. - Kazan: Publishing House of the Kazan Financial and Economic Institute, 1996. - P.53-59.

3. Mutual influence of tax and civil legislation // Scientific notes of the Kazan State University. T. 132. Legal sciences. - Kazan: Kazan State University Publishing House, 1996. - P.27-31.

4. Abstracts of the speech on the topic “Interaction of branches of legislation” in the work: Scientific conference dedicated to the 65th anniversary of the Ural State Law Academy // Russian Legal Journal. -1996. - N3(11). - P. 18.

5. Interaction of civil law with public law sectors (using the example of intellectual property law) // Current problems of intellectual property law. Collection of scientific papers. - Publishing house "ABAC-Center for Operational Printing". - Kazan, 1997. - 90 p. - P.5-10.

6. Legal aspects of tax planning in entrepreneurial activity // Economic and Legal Bulletin. - Kazan, 1997. - N3-4. - P.29-35.

7. The right of citizens to engage in entrepreneurial activity and the problem of interaction between civil and tax law - the work was submitted for publication in the next issue of Academic Notes of the Kazan State University for 1997.

8. Reflection of the norms of international humanitarian law in the national legislation of Russia and the problem of interaction of civil law with public law sectors (using the example of tax law) - the work was submitted for publication to the collection of materials of the international conference "Dissemination of knowledge about international humanitarian law".

The structure of this work is subordinated to the above-mentioned goals and objectives of the study. The work consists of an introduction, two chapters and a conclusion.

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Conclusion.

The conducted study of the interaction of civil and tax law allowed us to come to the conclusion that it is necessary to make the following proposals aimed at improving the current legislation.

1. It is necessary to adopt the Federal Law “On State Regulation and State Guarantees of Entrepreneurial Activities”, which defines the basis for the legal regulation of public entrepreneurial relations and takes into account the relationship between private and public law in the field of entrepreneurial activity. For example, cases of application of civil legislation in relations between entrepreneurs and the state could be directly mentioned here.

This law could reflect the rules relating to guarantees of entrepreneurial activity, the protection of their rights when carrying out public activities by the relevant entities, including rules establishing the specifics of the latter’s responsibility to entrepreneurs, for example, on the specifics of compensation for lost profits of entrepreneurs. Here it is also possible to establish norms that take into account the peculiarities of entrepreneurial activity as a private legal activity of great public importance, taking into account the relationship between private and public law. As for the relationship of this act with the Civil Code of the Russian Federation, even if the first one contains any norms of private law, then they should be recognized as special in relation to the corresponding norms of the Civil Code of the Russian Federation, but should not contradict it. In such a law, it is necessary to directly indicate the possibility of tax planning as an activity of a prospective taxpayer-entrepreneur, carried out mainly by civil means without violating legal norms based on taking into account the result of fulfilling tax obligations in business activities and aimed at establishing a minimum tax obligations.

2. In paragraph 2, paragraph 2, Article 61 of the Civil Code of the Russian Federation, the phrase “or with other repeated or gross violations of the law or other legal acts” should be worded as follows: “or with other repeated or gross violations of the law or other legal acts, in including those regulating relations other than those specified in paragraphs 1 and 2 of Article 2 of this Code." In parallel, Article 226 of the draft Tax Code of the Russian Federation should consolidate the right of tax authorities to bring claims for the liquidation of legal entities on the basis of repeated or gross violation of tax laws and other acts of tax legislation, but be sure to explain here in order to protect the rights of taxpayers, what is such gross violation of tax laws and other acts of tax legislation. In our opinion, a gross violation of tax laws and other acts of tax legislation in this situation must necessarily be linked to the intent, gross negligence of the taxpayer, as well as the amount of unpaid tax.

3. Since, as already noted, the object of taxation appears in the sphere of civil law and, taking into account the similarity of concepts used in civil and tax law, it is necessary to supplement the draft Tax Code of the Russian Federation with the following norm: “Unless otherwise established in this code, then when interpreting the norms of this Code on the object of taxation, including civil law concepts, the provisions of civil law are used." The same rule can be formulated in a more general form, that is, not only in relation to the object of taxation.

4. It is necessary to adopt a federal law on state responsibility, providing here in a unified form a number of special procedural provisions regarding state responsibility, that is, who is authorized to speak in court and which specific body compensates for damage, within what period, at the expense of what means, the responsibility of those or other entities for violating the norms of this law, etc., and the responsibility for harm caused to private individuals must be considered on the basis of civil law principles, which is facilitated by the current Civil Code of the Russian Federation, in particular its Art. 16. This normative act must be based on Art. 125, 1071 Civil Code.

5. The legislator should clearly speak out in the Civil Code of the Russian Federation about the possibility or impossibility of applying Article 395 of the Civil Code of the Russian Federation in relations between private individuals and government bodies, including tax authorities, since the judicial interpretation of this norm does not correspond to the current legislation. For example, this can be done in Article 395 of the Civil Code of the Russian Federation itself, which can be supplemented with paragraph 4 of the following content: “4. A demand for the payment of interest in accordance with this article may be presented to the victim in the event of his unlawful prosecution by state bodies, local authorities self-government".

6. To change the rules on the limitation period, it is necessary to add clause 1 of Art. 197 of the Civil Code of the Russian Federation with a new sentence as follows: “The limitation periods in tax disputes are established in tax legislation.” Accordingly, it is necessary to introduce into the draft Tax Code of the Russian Federation, in the article on the responsibility of tax authorities, a rule on the limitation period for the above requirements.

7. Our proposed Federal Law “On State Regulation and State Guarantees of Entrepreneurial Activities” or the Tax Code of the Russian Federation should provide for adequate features of the settlement procedure for a person who has debts on taxes and other obligatory payments.

In our opinion, in the absence of a current Tax Code of the Russian Federation, and also taking into account its possible delayed entry into force, it is necessary to implement the proposals made above to improve legislation in currently applied regulations, in particular in the Law of the Russian Federation "On the Fundamentals of the Tax System in the Russian Federation ". It is also necessary to pay attention to the fact that the implementation of these changes in legislation will not lead to an increase in budget expenditures.

Concluding the work, I would like to note that a correct understanding of the problem of interaction between civil and tax law considered and still in need of research will allow us to create high-quality regulations related to tax and civil legislation, characterized by a wide scope and depth of legal regulation of relations and high legal technology.

There is no doubt that further study of the problem posed will make it possible to concretize and develop the conclusions contained in this study. In this regard, it is important to emphasize that the adoption of the Tax Code of the Russian Federation, which addresses a whole range of issues in the field of tax law in a new way, will force researchers to return to the analysis of the interaction of civil and tax law. Of course, the practice of applying this normative act must also have its say here.

Please note that the scientific texts presented above are posted for informational purposes only and were obtained through original dissertation text recognition (OCR). In this connection, they may contain errors associated with imperfect recognition algorithms. There are no such errors in the PDF files of dissertations and abstracts that we deliver.

The connection between civil and tax law, it would seem, at first glance, is a purely theoretical problem associated with the study of the connection between tax and civil law, the resolution of which cannot bring anything new to the legal implementation process. But the truth of all legal disputes has never been and does not lie on the surface; it always requires deep scientific research and establishments that explain the logic and correctness of the position.

In recent years, in judicial practice, there have been very common cases when, when resolving tax disputes, tax authorities and courts, when determining the economic essence of financial and economic transactions, compare them with civil law transactions, analyze the conditions of property relations in the civil law vector and subsequently project information about property benefits on tax payments.

Moreover, a paradoxical situation arose when, depending on the application or non-application of civil law structures, the results of interpretation led to radically opposite conclusions. This clearly did not contribute to the certainty of tax rules and increase taxpayer confidence in the country's tax system.

As the Presidium of the Supreme Arbitration Court of the Russian Federation noted in the considered case No. 14786/08 of March 24, 2009, the assessment of evidence must be objective, which implies the inadmissibility of its unreasonable assessment, in which essentially identical circumstances receive a diametrically opposite interpretation without indicating any reasons for this. Resolution of the Presidium Supreme Arbitration Court of the Russian Federation dated March 24, 2009 N 14786/08 in case N A03-5725/07-34 // The document was not officially published..

As a result of this, the problem of the relationship between tax and civil law received closer attention both in scientific circles and among practicing lawyers. The discussion about the relationship between tax and civil law revolved primarily around what the relationship between tax and civil law is, whether the relationship between these sectors is systemic in nature or is it due to the improvement of tax legislation. Various points of view were put forward on this issue, but no unanimous and unambiguous answers were received.

However, the put forward points of view that the connection between civil and tax law is temporary in nature were not crowned with success by G.V. Petrova. Tax relations: theory and practice of legal regulation. M.: Olita, 2013. P. 166.. In practice, the connection between tax law and civil law has only become stronger, an indisputable confirmation of this is the systematic use of civil legislation in qualifying transactions for tax consequences.

It became clear that in order to respect the rights and guarantees of taxpayers, it is necessary to talk about a constant connection between tax and civil law, since the interpretation of tax rules must be carried out within the reasonable expectations of taxpayers. It is worth saying that this provision was repeatedly pointed out by judges of the Supreme Arbitration Court when reviewing cases related to tax disputes by way of supervision. Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 10, 2009 N 9024/08 in case No. A40-5083/07142-39 // Bulletin of the Supreme Arbitration Court of the Russian Federation RF. 2009. N 6; Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of March 1, 2011 N 13018/10 in case No. A19-25409/09-43 // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2011. N 6..

As a result, the question of what constitutes the connection between tax and civil law remains unclear.

According to the legal positions of the Constitutional Court of the Russian Federation, civil legal relations precede tax legal relations, and not vice versa. Determination of the Constitutional Court of the Russian Federation of November 2, 2006 N 444-O; Determination of the Constitutional Court of the Russian Federation of June 4, 2007 N 320-O-P; Resolution of the Constitutional Court of the Russian Federation of December 23, 2009 N 20-P; Definition of the Constitutional Court of the Russian Federation of June 1, 2010 N 753-О-О // SPS ConsultantPlus.. Thus, from this point of view, with the through movement of an economic good, civil law acts as a cause, and tax law as a consequence, occupying different areas of legal regulation. However, one should not treat tax law as an addition to civil law, since tax law is a basic superstructure for the accumulation of funds and the emergence of state property, which predetermines its relative independence and autonomy.

The connection between civil and tax law is nothing more than determination, the conditioning of some phenomena, processes and states by other phenomena Alekseev P.A., Panin A.V. Philosophy. 3rd ed., revised. and additional M.: Prospect, 2011. P. 480. At the same time, the first person in the science of financial law to draw attention to the fact that the connection between tax and civil law is a determination was M.V. Karaseva Karaseva (Sentsova) M.V. Civil law determination of tax lawmaking and enforcement // Financial law. 2012. N 4. P. 21 - 26..

Developing further the position that the connection between civil and tax law is a determination, we should highlight two very important aspects that are important for law enforcement practice. Firstly, the universal connection “civil - tax law” does not appear in everything, but only in property relations, due to the fact that property relations are not a legal category, but an economic one. And these economic relations are objective and relatively independent of the will of people, since people find them at a certain stage of development. Thus, property relations of tax and civil law represent half of one whole - the country's gross domestic product. A striking example of the fact that the connection is universal and manifests itself only in property relations is the dispute about the inadmissibility of applying the consequences of Art. 169 of the Civil Code of the Russian Federation to tax relations, although quite acceptable at first glance Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 10, 2008 N 22 “On some issues of the practice of considering disputes related to the application of Article 169 of the Civil Code of the Russian Federation” // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2008. N 5; Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of June 1, 2010 N 16064/09 in case No. A27-6222/2009-6 // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2010. N 9; Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of November 6, 2012 N 8728/12 in case No. A56-44428/2010 // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2013. N 3..

Secondly, as a result of the close relationship between tax and civil law, one of its properties will inevitably manifest itself - this is the property of reflection, which is understood as the ability of some bodies, as a result of interaction with other bodies, to reproduce in their nature the features of the latter Tyukhtin V., Ponomarev Ya. Reflection // Philosophical Encyclopedia. T. 4. M., 2010. P. 184 - 186.. When talking about such reflection, it should be borne in mind that some forms of reflection of civil matter are unacceptable in tax law and should be excluded. This concerns the transfer of risks inherent in civil law. For this reason, it is necessary to legislatively establish guarantees for taxpayers in the form of enshrining general principles that will penetrate the meaning of all tax rules and carry social significance. In our opinion, the key principle of tax law, along with the principle of the economic basis of the tax, should be the principle of tax neutrality, which is currently not legally enshrined in tax law.

The essential significance of the principle of tax neutrality is revealed in the works of many scientists and practicing lawyers (S.D. Shatalov S.D. Shatalov, The problem of improving the tax legislation of the Russian Federation // Tax Code. Today and Tomorrow: Collection of articles. M.: FBK-PRESS, 2011 . P. 12., S.G. Pepelyaev S.G. On the issue of tax legislation and tax relations // Tax Bulletin. 2011. N. 19., D.V. Vinnitsky D.V. law: Textbook for bachelors. 2nd ed. M.: Yurayt, 2013. P. 48. etc.) and is defined as follows: tax law should not limit the discretion of participants in civil legal relations, should not replace the legal regulation of business activities, but exclusively take into account the results obtained.

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