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Monitoring of the Federal Legislation dated 9.11.2006
Ruling of the Constitutional Court of the Russian Federation No. 274-O of June 13, 2006 on the Appeals of Citizens M.G.Akhalbedashvili and K.V.Moldovanov Against Violation of Their Constitutional Rights by Subitem 10 of Item 1 of Article 333.19 of the Tax Code of the Russian Federation
The Constitutional Court of the Russian Federation has confirmed its position expressed in the Ruling No. 272-O of June 13, 2006 stating that the courts may exempt from the state duty the citizens whose benefits are not envisaged in the legislative acts. This time, the motive for the decision appeared to be the appeal of citizens serving the term in the form of imprisonment who pleaded to recognise as unconstitutional Subitem 10 of Item 1 of Article 333.19 of the Tax Code of the Russian Federation whereby they were refused copies of the judicial act, since the appropriate application did not have attached the documents of transfer of the state duty in the amount specified in the challenged provision and the applicants are not included in the categories of citizens exempted from the state duty by virtue of Article 333.36 of the Tax Code of the Russian Federation.
It is emphasised that the absence with the interested person of opportunities to execute the duty to pay the state duty because of his property status must not prevent implementation of his right for protection in court, since this would be in violation of the provisions of the Constitution of the Russian Federation guaranteeing such right. Taking this into account, the Tax Code of the Russian Federation defines the categories of citizens exempted from the state duty, as well as envisages that the courts of general jurisdiction or the justices of the peace, proceeding from the property status of the payer, may reduce the amount of the state duty or grant a respite (extension schedule) for its payment. Nevertheless, these measures may appear insufficient to provide access to justice for citizens, especially if this is the case with the convicts of the criminal execution system sentenced to imprisonment who are not employed and do not have money on the personal account. Therefore, Subitem 10 of Item 1 of Articl e 333.19 of the Tax Code of the Russian Federation interconnected with Item 2 of Article 333.20 of the Tax Code of the Russian Federation, as not permitting the court to take decisions on requests of natural persons to reduce (up to the zero amount) the state duty due at submission of the application for a repeated issue of copies of judicial acts, if another reduction of the amount of the state duty or granting a respite (extension schedule) for its payment do not provide for a free access to justice, looses its force and may not be applied by judicial bodies.
It is emphasised that the absence with the interested person of opportunities to execute the duty to pay the state duty because of his property status must not prevent implementation of his right for protection in court, since this would be in violation of the provisions of the Constitution of the Russian Federation guaranteeing such right. Taking this into account, the Tax Code of the Russian Federation defines the categories of citizens exempted from the state duty, as well as envisages that the courts of general jurisdiction or the justices of the peace, proceeding from the property status of the payer, may reduce the amount of the state duty or grant a respite (extension schedule) for its payment. Nevertheless, these measures may appear insufficient to provide access to justice for citizens, especially if this is the case with the convicts of the criminal execution system sentenced to imprisonment who are not employed and do not have money on the personal account. Therefore, Subitem 10 of Item 1 of Articl e 333.19 of the Tax Code of the Russian Federation interconnected with Item 2 of Article 333.20 of the Tax Code of the Russian Federation, as not permitting the court to take decisions on requests of natural persons to reduce (up to the zero amount) the state duty due at submission of the application for a repeated issue of copies of judicial acts, if another reduction of the amount of the state duty or granting a respite (extension schedule) for its payment do not provide for a free access to justice, looses its force and may not be applied by judicial bodies.
Decision of the Plenum of the Higher Arbitration Court of the Russian Federation No. 55 of October 12, 2006 on the Provisional Measures Applied by Arbitration Courts
The Plenum of the Higher Arbitration Court of the Russian Federation provides explanations pertaining to the procedure of application of provisional measures when solving the disputes in the sphere of economic activities. A principally important one appeared to be the Plenum's explanation pertaining to opportunities of application of preliminary provisional measures (providing for the proprietary interests of the applicant) by the court whose territorial location does not permit to use them most efficiently. In spite of the fact that according to Part 3 of Article 99 of the Code of Arbitration Procedures of the Russian Federation the application for the preliminary provisional measures is submitted to the arbitration court at the place of location of the applicant or the place of location of monetary resources or another property the applicant requests to secure or the place of violation of the rights of the applicant, the court may refuse to apply these measures if their application by another competent cour
t according to the mentioned norm is more efficient (the property being the secured object is in the jurisdiction of another court; legal entity whose activities are being secured is registered in another subject of the Russian Federation etc.). Moreover, the court may refuse to satisfy the application requesting application of provisional measures submitted at the place of location of the applicant if the place of location of the debtor or his property or monetary resources is known and application of the measures by the court chosen on the basis of the given criteria will be more efficient.
Besides, according to Part 2 of Article 90 of the Code of Arbitration Procedures, provisional measures may be applied at any stage of the arbitration process, including the period of suspension of the case proceedings. However, during this period, the persons involved in the case, may appeal to request other procedural actions envisaged in Chapter 8 of the Code of Arbitration Procedures, including a revocation of provisional measures, replacement of one provisional measure with another, requesting countersecurity.
Arbitration courts should also keep in mind that provisional measures are a means of faster protection. Therefore, their application does not require the evidence in the volume necessary for substantiation of claims and arguments of the party in the dispute. It is obligatory for the applicant to present the proof of disputed or violated right, as well as its violation. When applying countersecurity, it is necessary to keep in mind that the countersecurity presented by the applicant in the absence of the reasons to apply provisional measures envisaged in Part 2 of Article 90 of the Code of Arbitration Procedures of the Russian Federation may not serve as an independent substantiation of application of such measures.
Besides, according to Part 2 of Article 90 of the Code of Arbitration Procedures, provisional measures may be applied at any stage of the arbitration process, including the period of suspension of the case proceedings. However, during this period, the persons involved in the case, may appeal to request other procedural actions envisaged in Chapter 8 of the Code of Arbitration Procedures, including a revocation of provisional measures, replacement of one provisional measure with another, requesting countersecurity.
Arbitration courts should also keep in mind that provisional measures are a means of faster protection. Therefore, their application does not require the evidence in the volume necessary for substantiation of claims and arguments of the party in the dispute. It is obligatory for the applicant to present the proof of disputed or violated right, as well as its violation. When applying countersecurity, it is necessary to keep in mind that the countersecurity presented by the applicant in the absence of the reasons to apply provisional measures envisaged in Part 2 of Article 90 of the Code of Arbitration Procedures of the Russian Federation may not serve as an independent substantiation of application of such measures.
Decision of the Government of the Russian Federation No. 656 of November 4, 2006 on the Endorsement of the Rules of Determination of the Initial Cost of the State Contract When the State Defence Order is Placed Through Tenders, As Well As the Price of the State Contract If the State Defence Order is Placed with a Single Supplier (Executor, Contractor)
The rules are endorsed to implement the provisions of the Federal Law No. 19-FZ of February 2, 2006 bringing legislative acts of the Russian Federation in compliance with the Federal Law No. 94-FZ of July 21, 2005 on the placing of orders for supplies of commodities, carrying out works, rendering services for the state and municipal needs
Defines the procedure and criteria of forming by the state ordering party if the initial price of the state contract for placing the state defence order through tenders, as well as the price of the state contract if the state defence order is placed with a single supplier (executor, contractor).
The initial price of the state contract permits to established the amount of security of the request for participation in the contest and the amount of security of execution of the state contract granted to the state ordering party.
When forming the prices, the federal bodies of executive power must take account of the volumes of financing envisaged for them in appropriate types of expenses.
Defines the procedure and criteria of forming by the state ordering party if the initial price of the state contract for placing the state defence order through tenders, as well as the price of the state contract if the state defence order is placed with a single supplier (executor, contractor).
The initial price of the state contract permits to established the amount of security of the request for participation in the contest and the amount of security of execution of the state contract granted to the state ordering party.
When forming the prices, the federal bodies of executive power must take account of the volumes of financing envisaged for them in appropriate types of expenses.
Decision of the Government of the Russian Federation No. 647 of November 4, 2006 on the Endorsement of the Regulation on the Licensing of Activities of Production of Prosthetic Appliances to Orders of Citizens
From July 2005, in the sphere of activities of rendering prosthetic aid, the licensing applies to only making of prosthetic appliances to orders of citizens. The repair and technical maintenance do not require licensing.
Prosthetic appliances include technical means of rehabilitation used to compensate for or eliminate stable life impairments: upper and lower extremities, mammary gland, orthopaedics including the upper and lower extremities, recliners, corsets, obturators, bandage, tutors and other orthopaedic correcting devices, orthopaedic shoes and correcting orthopaedic inserts (insoles).
The endorsed Regulation on the licensing of activities of making prosthetic appliances to orders of citizens specifies requirements to the applicants, the list of documents submitted by the applicant to get the license, procedure of checking the full and true information presented by the applicant, the list of major violations of the license requirements.
The applicant must have on the payroll persons with a higher or secondary professional education and the length of work in the occupation of at least 3 years as specialists in charge of production and quality of prosthetic appliances. There must also be specialists with a higher medical education.
The licensing of activities of production of prosthetic appliances is vested in the Federal Service of Enforcement in the Sphere of Public Health and Social Development. The license is issued to both legal entities and independent entrepreneurs for 5 years. The issue of the license is fee-paying.
The Regulation on the licensing of activities of rendering of prosthetic aid endorsed by the Decision of the Government of the Russian Federation No. 309 of May 13, 2002 is invalidated.
Prosthetic appliances include technical means of rehabilitation used to compensate for or eliminate stable life impairments: upper and lower extremities, mammary gland, orthopaedics including the upper and lower extremities, recliners, corsets, obturators, bandage, tutors and other orthopaedic correcting devices, orthopaedic shoes and correcting orthopaedic inserts (insoles).
The endorsed Regulation on the licensing of activities of making prosthetic appliances to orders of citizens specifies requirements to the applicants, the list of documents submitted by the applicant to get the license, procedure of checking the full and true information presented by the applicant, the list of major violations of the license requirements.
The applicant must have on the payroll persons with a higher or secondary professional education and the length of work in the occupation of at least 3 years as specialists in charge of production and quality of prosthetic appliances. There must also be specialists with a higher medical education.
The licensing of activities of production of prosthetic appliances is vested in the Federal Service of Enforcement in the Sphere of Public Health and Social Development. The license is issued to both legal entities and independent entrepreneurs for 5 years. The issue of the license is fee-paying.
The Regulation on the licensing of activities of rendering of prosthetic aid endorsed by the Decision of the Government of the Russian Federation No. 309 of May 13, 2002 is invalidated.
Decision of the Government of the Russian Federation No. 640 of November 4, 2006 on the Criteria to Qualify the Objects As Subject to the State Federal Control and the State Regional Control over the Use and Protection of Water Objects
In pursuance of Article 81 of the Water Code of the Russian Federation, endorses the criteria to qualify the objects as subject to the federal control and the regional control over the use and protection of water objects.
The criteria to qualify the objects as subject to the federal control over the use and protection of water objects include the use of: surface water objects located on the territories of two and more subjects of the Russian Federation; water objects or parts thereof located on the lands of defence and security, as well as the ones used to ensure defence and security of the state and for supplies of the federal power-supply systems, federal transport and other state needs; internal sea waters; territorial sea of the Russian Federation; specially protected water objects or the water objects being specially protected nature territories of federal significance or a part of these territories; water objects or parts thereof being the objects declared as fishing reserve zones; water objects serving as an environment for the anadromous and catadromous fishes; trans-border (borderline) water objects; water objects or parts thereof for the needs of the cities with population numbering one hundred thousand persons and m ore, as well as for the needs of enterprises and other organisations consuming water or disposing waste water in the volumes greater than 15 million cubic meters a year.
The criteria to qualify the objects as subject to the regional control is the use of water objects fully located within the boundaries of the appropriate subject of the Russian Federation and not included in the objects subject to the federal control.
The list of the objects subject to the state federal control will be endorsed within one month by the Ministry of Natural Resources of Russia.
The criteria to qualify the objects as subject to the federal control over the use and protection of water objects include the use of: surface water objects located on the territories of two and more subjects of the Russian Federation; water objects or parts thereof located on the lands of defence and security, as well as the ones used to ensure defence and security of the state and for supplies of the federal power-supply systems, federal transport and other state needs; internal sea waters; territorial sea of the Russian Federation; specially protected water objects or the water objects being specially protected nature territories of federal significance or a part of these territories; water objects or parts thereof being the objects declared as fishing reserve zones; water objects serving as an environment for the anadromous and catadromous fishes; trans-border (borderline) water objects; water objects or parts thereof for the needs of the cities with population numbering one hundred thousand persons and m ore, as well as for the needs of enterprises and other organisations consuming water or disposing waste water in the volumes greater than 15 million cubic meters a year.
The criteria to qualify the objects as subject to the regional control is the use of water objects fully located within the boundaries of the appropriate subject of the Russian Federation and not included in the objects subject to the federal control.
The list of the objects subject to the state federal control will be endorsed within one month by the Ministry of Natural Resources of Russia.
Order of the Ministry of Economic Development of the Russian Federation, Ministry of Finance of the Russian Federation and the Federal Service of State Statistics No. 306/120n/139 of October 2, 2006 on the Reassessment of Fixed Assets and Non-Material Assets of Budget-Supported Institutions
Budget-supported institutions are ordered to carry out a reassessment of fixed assets and non-material assets as of January 1, 2007.
To carry out the reassessment, appropriate changes are introduced in the procedure of reassessment of fixed assets and non-material assets of budget-supported institutions endorsed by the joint Order of the Ministry of Economic Development of Russia, Ministry of Finance of Russia, Ministry of State Property Management of Russia and the State Statistics Committee of Russia No. 25/6n/14/7 of January 25, 2003.
According to the amendments, the objects of unfinished construction are not included in the reassessment.
In reassessment of accrued amortisation for the fixed assets and non-material assets, the coefficients apply that were worked out by the Federal Service of State Statistics of Russia on the basis of producer price indices for the fund-creating commodities and producer price indices in construction (construction and installation works) published in Rossiyskaya Gazeta before November 1, 2006.
The procedure, respectively, does not include the provisions envisaging a stepwise reassessment of fixed assets using the prices of various years.
Since from January 1, 2006 budget-supported institutions in accounting work use the accounting Instruction endorsed by the Order of the Ministry of Finance of Russia No. 25n of February 10, 2006, appropriate changes are introduced in the provisions regulating the procedure of recording of the results of reassessment in the accounting work.
There are also changes stipulated by the reorganisation of the structure of the federal bodies of executive power in compliance with the Decree of the President of the Russian Federation No. 649 of May 20, 2004.
Decision on subsequent reassessment shall be taken by the Ministry of Economic Development of Russia, Ministry of Finance of Russia and the Federal Service of State Statistics in coordination with the Federal Agency for Federal Property Management no later than November 1 of the year preceding the reassessment.
Registered in the Ministry of Justice of the Russian Federation on November 3, 2006. Reg. No. 8433.
To carry out the reassessment, appropriate changes are introduced in the procedure of reassessment of fixed assets and non-material assets of budget-supported institutions endorsed by the joint Order of the Ministry of Economic Development of Russia, Ministry of Finance of Russia, Ministry of State Property Management of Russia and the State Statistics Committee of Russia No. 25/6n/14/7 of January 25, 2003.
According to the amendments, the objects of unfinished construction are not included in the reassessment.
In reassessment of accrued amortisation for the fixed assets and non-material assets, the coefficients apply that were worked out by the Federal Service of State Statistics of Russia on the basis of producer price indices for the fund-creating commodities and producer price indices in construction (construction and installation works) published in Rossiyskaya Gazeta before November 1, 2006.
The procedure, respectively, does not include the provisions envisaging a stepwise reassessment of fixed assets using the prices of various years.
Since from January 1, 2006 budget-supported institutions in accounting work use the accounting Instruction endorsed by the Order of the Ministry of Finance of Russia No. 25n of February 10, 2006, appropriate changes are introduced in the provisions regulating the procedure of recording of the results of reassessment in the accounting work.
There are also changes stipulated by the reorganisation of the structure of the federal bodies of executive power in compliance with the Decree of the President of the Russian Federation No. 649 of May 20, 2004.
Decision on subsequent reassessment shall be taken by the Ministry of Economic Development of Russia, Ministry of Finance of Russia and the Federal Service of State Statistics in coordination with the Federal Agency for Federal Property Management no later than November 1 of the year preceding the reassessment.
Registered in the Ministry of Justice of the Russian Federation on November 3, 2006. Reg. No. 8433.
Order of the Federal Customs Service No. 916 of September 21, 2006 on the Procedure for Providing Software of the Joint State Automatic Information System of Registration of the Volume of Production and Circulation of Ethyl Alcohol, Alcoholic and Alcohol-Containing Products to Organisations Importing Ethyl Alcohol, Alcoholic and Alcohol-Containing Products and Its Installation in the Technical Means of Registration and Transfer of Information on the Volume of Production and Circulation of Ethyl Alcohol, Alcoholic and Alcohol-Containing Products to the Joint State Automatic Information System of Registration of the Volume of Production and Circulation of Ethyl Alcohol, Alcoholic and Alcohol-Containing Products
Specifies the grounds, procedure and time limits of installation and removing of the software for registration and transfer of information to the Joint Information System of Registration of the Volume of Production and Circulation of Alcoholic Products for importer organisations.
The software shall be provided by the customs bodies. The installation is made to the application of the organisation within the time limits not greater than 9 days, which includes installation in the technical means of all components of the software and the means of protection of information.
The organisation having submitted the request for the installation is registered by the tax body in the database of the Joint Information System while generating the registration file and the electronic key of protection of information to be handed out to the representative of the organisation against his signature. Installation of the key and loading of the file of registration is made by the representative of the organisation having developed the software.
The checking of opportunities of use of the installed software is made jointly by representatives of the customs body, territorial tax body, developer organisation and the organisation, which is followed by the drawing up of the act and the technical means are sealed.
The software must be removed if the organisation fails to use the technical means with installed software for 6 months in a row. The grounds for the removal is the absence in the customs body for 6 months in a row of information that must be received from the organisation and registered in the Joint Information System.
Registered in the Ministry of Justice of the Russian Federation on November 1, 2006. Reg. No. 8432.
The software shall be provided by the customs bodies. The installation is made to the application of the organisation within the time limits not greater than 9 days, which includes installation in the technical means of all components of the software and the means of protection of information.
The organisation having submitted the request for the installation is registered by the tax body in the database of the Joint Information System while generating the registration file and the electronic key of protection of information to be handed out to the representative of the organisation against his signature. Installation of the key and loading of the file of registration is made by the representative of the organisation having developed the software.
The checking of opportunities of use of the installed software is made jointly by representatives of the customs body, territorial tax body, developer organisation and the organisation, which is followed by the drawing up of the act and the technical means are sealed.
The software must be removed if the organisation fails to use the technical means with installed software for 6 months in a row. The grounds for the removal is the absence in the customs body for 6 months in a row of information that must be received from the organisation and registered in the Joint Information System.
Registered in the Ministry of Justice of the Russian Federation on November 1, 2006. Reg. No. 8432.
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