In detail...

IN THE NAME OF THE PRIDNESTROVSKAIA MOLDAVSKAIA RESPUBLIKA

R E S O L U T I O N

on the case about the verification of constitutionality of the Law of the Pridnestrovskaia Moldavskaia Respublika from February 14th, 2005 N 536--III "About Entry of the addition into the Law of the Pridnestrovskaia Moldavskaia Respublika from December 28th, 2001 N 87--III "About surtax from physical persons" on the complaint of the citizen Kozlenkov Dmitriy Sergeevich

February 21st, 2006 the City of Tiraspol

The Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika comprising: the presiding Chairman of the Constitutional Court Grigoriev V.A., Judges Garaga V.I., Kabaloev O.K., Karamanutsa V.I., Lyakhova M.I., Malskaya L.G.,

in the presence of the citizen Kozlenkov D.S. and the plenipotentiary of Supreme Council of the Pridnestrovskaia Moldavskaia Respublika in Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika Head of Department of legal support of bills of the Staff of the Supreme Council of the Pridnestrovskaia Moldavskaia Respublika Melnik .B., Deputy Chairman of the Committee of Supreme Council of the Pridnestrovskaia Moldavskaia Respublika on economic policy, budget and finance Sipchenko A.V.,

being guided by Article 87 (item 3) of the Constitution of the Pridnestrovskaia Moldavskaia Respublika, Article 9 (item c) Part One), Article 27 (item c) Part One), Articles 102, 103 of the Constitutional Law of the Pridnestrovskaia Moldavskaia Respublika "About the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika",

considered in the open session the question about the verification of constitutionality of the Law of the Pridnestrovskaia Moldavskaia Respublika from February 14th, 2005 N 536--III "About Entry of the addition into the Law of the Pridnestrovskaia Moldavskaia Respublika from December 28th, 2001 N 87--III "About surtax from physical persons".

The ground for consideration of the case has become the complaint of the citizen Kozlenkov D.S. on the infringement of his constitutional right to property as a result of application by tax inspection on the City of Tiraspol of the Law of the Pridnestrovskaia Moldavskaia Respublika from February 14th, 2005 N 536--III "About Entry of the addition into the Law of the Pridnestrovskaia Moldavskaia Respublika from December 28th, 2001 N 87--III "About surtax from physical persons".

The ground for consideration of the case has become the uncertainty in the question on conformity of the disputed by the petitioner legislative act the Constitution of the Pridnestrovskaia Moldavskaia Respublika.

After hearing the report of the Judge-Speaker Malskaya L.G., the explanations of the petitioner and the representatives of the Supreme Council of the Pridnestrovskaia Moldavskaia Respublika, after the examination of all the documents and other materials submitted, the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika

established:

1. The Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika in accordance with item 3 Article 87 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika and (item c) Part One) Article 9 of the Constitutional Law of the Pridnestrovskaia Moldavskaia Respublika "About the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika" has been petitioned with the complaint of citizen Kozlenkov D.S. on the infringement of his constitutional right to property as a result of application by tax inspection on the City of Tiraspol of the Law of the Pridnestrovskaia Moldavskaia Respublika from February 14th, 2005 N 536--III "About Entry of the addition into the Law of the Pridnestrovskaia Moldavskaia Respublika from December 28th, 2001 N 87--III "About surtax from physical persons".

In his complaint the petitioner specified, that by the Decision of Head of the state administration of city of Tiraspol N 2625 from September 8th, 2004 he has been registered as the businessman without juridical education and he has been given the certificate N 15627 from September 8th, 2004 about state registration of an individual businessman without juridical education . On the results of his activity for the year 2004 he sent the declaration to tax inspection of the City of Tiraspol. In connection that the sum of the uniform social tax and surtax as advance payments paid during the year has exceeded the sum of the uniform social tax and the surtax estimated on the results of the work for the year 2004, he simultaneously sent the application about return of unduly paid sums of the uniform social tax and surtax. The sum of unduly paid uniform social tax was paid back to the petitioner. However, in the letter sent by tax inspection of the city of Tiraspol N 08/6183 from June 30th, 2005 Kozlenkov D.S. was refused in return of unduly paid sum of surtax on the ground of Article 18 of the Law of the Pridnestrovskaia Moldavskaia Respublika from December 28th, 2001 N 87--III "About surtax from physical persons", establishing that the paid during the tax period by the individual businessman sum of surtax, as the part of cost of patent, exceeding the sum of surtax estimated in accordance with the current Law on results of declaration of the cumulative revenue, shall not be subjected to return from the budget on account of forthcoming payments.The given norm came into force by of the Law of the Pridnestrovskaia Moldavskaia Respublika from February 14th, 2005 N 536--III "About Entry of the addition into the Law of the Pridnestrovskaia Moldavskaia Respublika from December 28th, 2001 N 87--III "About surtax from physical persons" and distributes the action to legal relations arisen on January 1st, 2005.

Kozlenkov D.S. considers, that Article 1 of the above-mentioned Law contradicts Article 99 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika providing, that tax system of the state shall be aimed to blessing and benefit of the population, satisfaction of financial needs of the state, to fair distribution of incomes and national riches, to stimulation of national manufacture. However, interdiction on return of unduly paid tax payments as advance payments on the surtax, stipulated in the disputed Law, worsens the position of separate citizens individual businessmen in comparison with other citizens and in this connection tax system regarding this part becomes not aimed on the blessing and benefit of the separate part of the population individual businessmen.

In the opinion of the petitioner, the disputed legislative act contradicts Article 17 of Constitution of the Pridnestrovskaia Moldavskaia Respublika establishing identical rights and freedoms, equality under law without distinction of sex, race, nationality, language, religion, social origin, belief, personal and social status, and Article 17 of Law of the Pridnestrovskaia Moldavskaia Respublika from April 4th, 1995 "About fundamentals of tax system in the Pridnestrovskaia Moldavskaia Respublika", stipulating the right to offset or return of unduly paid (collected) sum of the tax, collection or any other obligatory payment, including fine as it stipulates the prohibition to return of unduly paid sums of surtax as advance payments, which is belittling of the right to property of citizens individual businessmen in comparison with other categories of citizens - tax bearers who keep the right on return of unduly paid tax payments.

In accordance with Part One item 2 Article 98 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika laws and other legal acts stipulating new taxes and other obligatory payments or worsening position of tax bearers, shall have no return force and shall come into force with the beginning of new fiscal year under the condition they have been officially published not later than three months prior its beginning. However, in the opinion of the petitioner, the Law of the Pridnestrovskaia Moldavskaia Respublika from February 14th, 2005 N 536--III "About Entry of the addition into the Law of the Pridnestrovskaia Moldavskaia Respublika from December 28th, 2001 N 87--III "About surtax from physical persons" cannot come into force in no event after its official publication as it has been adopted during the following after accounting fiscal year. Besides distribution of the action of the Law to legal relations arisen from January 1st, 2005 can be considered as giving to the given Law of return force. In connection with the above-mentioned, the disputed Law worsens the position of a tax bearer as before its coming into force, there were no the norms establishing the prohibition for individual businessmen for return of unduly paid sums of surtax as advance payments on the results of declaring of incomes for the year.

The petitioner considers, that withdrawal of money resources in the form of prohibition of the specified sums is withdrawal of the property not on the ground of the decision of court which contradicts guaranteed to each person right to property stipulated by Article 37 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika.

Thus, the applicant believes, that the norms stipulated by the Law of the Pridnestrovskaia Moldavskaia Respublika from February 14th, 2005 N 536--III "About Entry of the addition into the Law of the Pridnestrovskaia Moldavskaia Respublika from December 28th, 2001 N 87--III "About surtax from physical persons", contradict his constitutional right to property stipulated in Article 37 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika and contradict the requirements of Articles 17, 98, 99 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika and in this connection the petitioner applied to recognize the disputed legislative act not corresponding to the above mentioned norms of the Constitution of the Pridnestrovskaia Moldavskaia Respublika.

2. The Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika, considering the given question, grounds on the fact that the Constitution of the Pridnestrovskaia Moldavskaia Respublika shall have the supreme legal force and direct action Article 2 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika Everyone shall have equal rights and freedoms and be equal under the law without distinction of sex, race, nationality, language, religion, social origin, belief, personal and social status. Advantages and privileges can be established solely by law and shall correspond to principle of social justice Article 17 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika The state shall guarantee each person the right to property. No one can be deprived of his property, otherwise on court decision Article 37 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika . Tax system of the state shall be aimed to blessing and benefit of the population, satisfaction of financial needs of the state, on fair distribution of incomes and national riches, stimulation of national manufacture (Article 99 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika).

3. The Law of the Pridnestrovskaia Moldavskaia Respublika from April 4th, 1995 "About the fundamentals of tax system in the Pridnestrovskaia Moldavskaia Respublika" determines the general economic, legal and organizational principles of construction of tax system in the republic. In accordance with Article 2 of the above mentioned Law tax bearers are legal persons, other categories of payers and physical persons on whom according to legislative acts is assigned the responsibility to pay taxes. Payers of taxes shall be equal under the law. The state shall guarantee the uniform approach to tax bearers, irrespective of pattern of ownership and forms of managing. The given norm proceeds, that taxes and collections cannot bear discrimination character and establish differently with reference to separate categories of the citizens - tax bearers. And in accordance with Article 4 of the given Law the objects of taxation shall be incomes (profit), cost of the certain goods, separate kinds of activity of the tax bearer, operations with securities, use of natural resources, property, transfer of property, the added cost of production, works and services and other objects subjected to taxation in accordance with the current legislation. Article 13 of the Law of the Pridnestrovskaia Moldavskaia Respublika from December 28th, 2001 N 87--III "About surtax from physical persons" stipulates that calendar year is recognised as the tax period. It is necessary to specify , that in accordance with Part One Article 18 of the above mentioned Law the annual sum of income received from enterpreneur activity, registered in the established order, is subjected to taxation in accordance with the specified Law. The estimated sum of the tax in accordance with Article 15 of the same Law, minus the surtax paid during year by this kind of the income, including as a part of cost of the patent shall be subjected to transfer Into the budget. Article 17 of the Law of the Pridnestrovskaia Moldavskaia Respublika from April 4th, 1995 "About the fundamentals of tax system in the Pridnestrovskaia Moldavskaia Respublika" stipulates that on the application of the bearer or on the decision of the official of the tax organ offset of the sum of unduly estimated or brought payments on account of forthcoming payments can be made. At the same time the application of the payer or under the decision of the official, return of unduly paid payments on the condition of repayment of debts by other kinds of payments can be made in accordance with the current legislation. Simultaneously with return of unduly estimated and brought (collected) payments come back and the corresponding sumsof fine.

However, the disputed Law establishes, that in case if the tax period the individual businessman the sum of surtax, as a part of cost of the patent, exceeds the sum of surtax estimated according to the given Law, on results of declaring of the cumulative revenue, the difference from the budget or to offset on account of forthcoming payments is not subjected to return. Established by the Law of the Pridnestrovskaia Moldavskaia Respublika from February 14th, 2005 N 536--III "About Entry of the addition into the Law of the Pridnestrovskaia Moldavskaia Respublika from December 28th, 2001 N 87--III "About surtax from physical persons" the interdiction is belittling of the right of the citizens to property individual businessmen in comparison with other categories of citizens - tax bearers who, in accordance with Article 17 of the Law of the Pridnestrovskaia Moldavskaia Respublika from April 4th, 1995" About the fundamentals of tax system in the Pridnestrovskaia Moldavskaia Respublika", preserves the right to return of unduly paid tax payments. Thus, the establishment of interdiction on return from the budget or offset on account of forthcoming payments of difference of the sums of the paid and estimated surtaxes stipulated in the disputed Law, interferes with realization by the citizens individual businessmen of their constitutional rights which contradicts requirements of Article 37 of Constitution of the Pridnestrovskaia Moldavskaia Respublika, and violates constitutional -legal principle of equality under the law, stipulated in Article 17 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika, and rules of the equal and fair taxation .

Article 99 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika establishes, that the tax system of the state is aimed to the blessing and benefit of the population, satisfaction of financial needs of the state, on fair distribution of incomes and national riches, stimulation of national manufacture. However, on sense of Article 1 of the Law of the Pridnestrovskaia Moldavskaia Respublika from February 14th, 2005 N 536--III "About Entry of the addition into the Law of the Pridnestrovskaia Moldavskaia Respublika from December 28th, 2001 N 87--III "About surtax from physical persons" (Part Two Article 18 of the Law) for the citizens individual businessmen the interdiction on return of unduly paid tax payments as advance payments on surtax is established. The given requirement of the Law, in the opinion of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika, violates constitutional rights of the citizens as the non-uniform tax burden for citizens - tax bearers in this connection worsens the position of a separate category of citizens individual businessmen in comparison with other citizens, paying taxes, is established. Thus, the tax system in this case results in creation of unequal conditions of the taxation for the specified category of citizens and, hence, becomes aimed not to the blessing and benefit of all population, but only separate part of the population which contradicts Article 99 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika and Article 17 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika stipulating the constitutional-legal principle of equality.

In accordance with item 2 Article 98 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika laws and other legal acts establishing new taxes and other obligatory payments or worsening the position of tax bearers, shall have no return force and shall come into force with the beginning of new fiscal year after the condition they have been officially published not later than three months prior to its beginning. The given constitutional -legal regulation is stipulated in Part Two Article 5 of the Law of the Pridnestrovskaia Moldavskaia Respublika "About the fundamentals of tax system in the Pridnestrovskaia Moldavskaia Respublika". And in accordance with Part Three item 1 Article 31 of the Law of the Pridnestrovskaia Moldavskaia Respublika from May 7th, 2002 No. 123-3-III "About acts of legislation of the Pridnestrovskaia Moldavskaia Respublika" features of the order of coming into force of tax and other laws of the Pridnestrovskaia Moldavskaia Respublika directly stipulated by the Constitution of the Pridnestrovskaia Moldavskaia Respublika, shall be determined by the norms of the Constitution of the Pridnestrovskaia Moldavskaia Respublika. In the opinion of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika, the given requirements about inadmissibility of giving of return force to the law worsening the position of tax bearers, shall be basic. In them is expressed the general principle of action of laws in time: the laws worsening the position of a person in any sphere of life, shall have no return force, and stabilize a legal status of a person and a citizen. The specified constitutional legal norms established an effective barrier in application of the laws issued in the contradiction with the established in them order of adoption. Changes should be brought in tax system prior to the beginning of new fiscal year to provide gradual transfer from one tax system to another. Transitional presence is connected with the necessity of both adaptations of tax bearers to new conditions of taxation, and preparation of organizational, material and other conditions for collection of taxes without essential losses both for tax bearers, and for the budget. However, as follows from Article 2 of the disputed legislative act, the Law has come into force in no event after its official publication, i.e. on February 16th, 2005 and has distributed the action to legal relations, arisen since January 1st, 2005. Thus, the given Law has been adopted in the violation of requirements of the above- mentioned constitutional legal norms, which, first, have allowed to worsen the position of the certain category of tax bearers as the interdiction on return of unduly paid sums of surtax as advance payments on results of declaring of incomes for the year 2004 which is the withdrawal of the property not on the ground of the decision of court as it is stipulated by Article 37 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika, but on the ground of the considered Law; second, the return force is given to the Law, which contradicts the above-mentioned constitutional legal norms of the Pridnestrovskaia Moldavskaia Respublika as the disputed Law worsening the position of separate tax bearers, has not been officially published three months prior to the beginning of the tax period.

On the ground of the above-mentioned, the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika comes to the conclusion, that during application by tax inspection of the City of Tiraspol of the Law of the Pridnestrovskaia Moldavskaia Respublika from February 14th, 2005 N 536--III "About Entry of the addition into the Law of the Pridnestrovskaia Moldavskaia Respublika from December 28th, 2001 N 87--III "About surtax from physical persons" has been violated the constitutional right to property of the citizen Kozlenkov D.S. accoprding to which the given Law does not correspond to the Constitution of the Pridnestrovskaia Moldavskaia Respublika, and namely to its Articles 17, 37, 98, 99.

Being guided by Article 2 and item 1 Article 88 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika, Article 12, item c) Part One Article 27, Parts One, Two, Four and Five Article 78, Articles 79, 80, 84, 85, 106 of the Constitutional Law of the Pridnestrovskaia Moldavskaia Respublika "About the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika", the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika

established:

1. To admit not corresponding to the Constitution the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika it Articles 17, 37, 98, 99 of the Law the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika from February 14th, 2005 N 536--III "About Entry of the addition into the Law of the Pridnestrovskaia Moldavskaia Respublika from December 28th, 2001 N 87--III "About surtax from physical persons" .

2. The Law the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika (Articles 1 and 2) from February 14th, 2005 N 536--III "About Entry of the addition into the Law of the Pridnestrovskaia Moldavskaia Respublika from December 28th, 2001 N 87--III "About surtax from physical persons" loses force.

3. The given Resolution of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika shall be final, shall not be subjected to appeal and shall come into force in no event after its declaration.

4. The given Resolution of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika shall be published in The Collection of Legislative Enactments of the Pridnestrovskaia Moldavskaia Respublika, in the newspaper Pridnestrovie and The Bulletin of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika.

Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika

No 03 / 06




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