Suspension of the validity of a contested act, decision of a tax authority, body for control over the payment of insurance premiums is carried out on the basis of the adoption by the arbitration court of an appropriate interim measure (hereinafter, when mentioning an act, decision of a tax authority, the act, decision of the body for control over the payment of insurance premiums is also meant). As follows from the provisions of Part 1 of Art. 90 of the Arbitration Procedure Code of the Russian Federation, interim measures are temporary measures taken by the arbitration court at the request of a person participating in the case, and in cases provided for by this Code, and another person, aimed at securing the claim or property interests of the applicant. The purpose of interim measures in accordance with Part 2 of this article is to prevent difficulty or impossibility of executing a judicial act, as well as to prevent causing significant damage to the applicant. The possibility of suspending the validity of a contested act or decision of the tax authority is indicated in Article 3, introduced by Law of 2006 N 137-FZ. 138 part one of the Tax Code of the Russian Federation: in case of appealing acts of tax authorities, their actions officials to the court, at the request of the taxpayer (payer of fees, tax agent), the execution of the acts being appealed, the commission of the acts being appealed may be suspended by the court in the manner established by the relevant procedural legislation of the Russian Federation.
In part 3 of Art. 199 ch. 24 of the Arbitration Procedure Code of the Russian Federation provides that, at the request of the applicant, the arbitration court may suspend the effect of the contested act or decision of a state body. Suspension on the basis of this norm of the action of a contested act or decision of a state body is also an interim measure. This, in particular, was the basis of the Constitutional Court of the Russian Federation when forming the following legal position, expressed in Determination No. 390-O of November 6, 2003: interim measures in administrative proceedings carried out by arbitration courts are not discriminatory in relation to any party in progress; their application is carried out within the discretionary powers of arbitration courts and on the basis of the principles of adversarialism and procedural equality of the parties.
Recommendations that arbitration courts are ordered to follow when considering petitions under Part 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation, given in the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 13, 2004 N 83 “On some issues related to the application of Part 3 of Article 199 of the Arbitration Procedure Code Russian Federation", as well as in paragraph 29 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 No. 55 "On the application of interim measures by arbitration courts."
In particular, paragraph 1 of the said information letter states that in Ch. 24 of the Arbitration Procedure Code of the Russian Federation does not establish the specifics of considering applications for suspension of non-regulatory legal act, decisions, in connection with which arbitration courts need to take into account the relevant provisions of Chapter. 8 “Interim measures of the arbitration court” of this Code, including the grounds for interim measures and the procedure for considering an application for securing a claim. Similar explanations are given in paragraph 29 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 N 55: by virtue of Part 1 of Art. 197 of the Arbitration Procedure Code of the Russian Federation, the application of such measures is carried out in the manner prescribed by Chapter. 8 of this Code, taking into account the peculiarities of proceedings in cases arising from administrative legal relations; Accordingly, suspension of the action of a contested act or decision is permissible only if there are grounds provided for in Part 2 of Art. 90 of this Code.
In paragraph 4 of the specified information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation, it is explained that under the suspension of the non-normative legal act, the decision in Part 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation is understood as non-recognition of an act or decision as invalid as a result of an interim measure of the court, but a prohibition of the implementation of those measures that are provided for by this act or decision. The Plenum of the Supreme Arbitration Court of the Russian Federation in paragraph 29 of the said Resolution also clarified that the suspension of an act, decision of a state or other body or official does not entail their invalidity. As the Plenum of the Supreme Arbitration Court of the Russian Federation noted, under the suspension of a non-normative legal act, a decision in accordance with Part 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation as an interim measure is understood as a prohibition of the execution of actions provided for by this act or decision; if the actions provided for by a non-normative legal act or decision have already been performed or their execution has begun (changes have been made to the public register, funds have been debited from the account, etc.), the courts are ordered to find out to what extent the requested interim measure is actually enforceable and effective, and also assess the extent to which failure to take such measures could lead to significant damage to the applicant, complicate or make impossible the execution of a judicial act.
An important point is that the adoption of an interim measure is the power of the arbitration court, but not at all its obligation. As established in Part 2 of Art. 90 of the Arbitration Procedure Code of the Russian Federation, interim measures are allowed if failure to take these measures may complicate or make impossible the execution of a judicial act, as well as in order to prevent causing significant damage to the applicant. In other words, this Code provides only two grounds for taking interim measures: the difficulty or impossibility of executing a judicial act in the event of failure to take interim measures and the possibility of causing significant damage to the applicant.
According to Part 3 of Art. 93 of the Arbitration Procedure Code of the Russian Federation, security for a claim may be refused if the provisions provided for in Art. 90 of this Code grounds for taking measures to secure a claim. In paragraph 2 of the above information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 13, 2004 N 83, it is explained that if the applicant has not provided evidence indicating that if the interim measure is not taken, the consequences specified in Part 2 of Art. . 90 of the Arbitration Procedure Code of the Russian Federation, then the petition to suspend the validity of the contested act or decision cannot be satisfied (however, the same clause 2 of the information letter contains a reservation: “except for cases when such consequences directly follow from the essence of the contested act, decision”; we are talking about the norm of Part 1 of Article 69 of this Code, according to which the circumstances of the case, recognized by the arbitration court as generally known, do not need to be proven). A similar explanation is given in paragraph 9 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 N 55: given that interim measures are applied subject to justification, the arbitration court recognizes the party’s application for the application of interim measures as justified if there is evidence confirming the presence of at least one from the grounds provided for in Part 2 of Art. 90 of this Code.
In paragraph 10 of the same Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation, arbitration courts are ordered to take into account that interim measures are an expedited remedy, therefore, their application does not require the presentation of evidence in the amount necessary to substantiate the party’s claims and objections on the merits of the dispute. As the Plenum of the Supreme Arbitration Court of the Russian Federation indicated, it is mandatory for the applicant to provide evidence of the existence of a disputed or violated right, as well as its violation.
The Plenum of the Supreme Arbitration Court of the Russian Federation also clarified that in determining the application of interim measures or the refusal to apply them, the arbitration court must assess the validity of the applicant’s arguments about the need to take interim measures.
In this regard, when assessing the applicant’s arguments in accordance with Part 2 of Art. 90 of the Arbitration Procedure Code of the Russian Federation, arbitration courts are ordered, in particular, to keep in mind:
the reasonableness and validity of the applicant’s request for interim measures;
the likelihood of causing significant damage to the applicant if interim measures are not taken;
ensuring a balance of interests of stakeholders; preventing violations of public interests and the interests of third parties when taking interim measures.
In addition, as the Plenum of the Supreme Arbitration Court of the Russian Federation indicated, when considering applications for the application of interim measures, the court assesses the extent to which the specific interim measure requested by the applicant is related to the subject of the stated claim, is proportionate to it, and how it will ensure the actual implementation of the goals of the interim measures, due to the grounds provided for in Part. 2 tbsp. 90 Arbitration Procedure Code of the Russian Federation.
Accordingly, when applying to the arbitration court with an application to suspend the validity of the disputed act of the tax authority, it is necessary to justify and prove the existence of the circumstances provided for in the specified norm, in connection with which the following must be noted.
With regard to the first basis for taking interim measures - the difficulty or impossibility of executing a judicial act in the event of failure to take interim measures:
a possible consequence of the arbitration court’s failure to take an interim measure is the undisputed collection of taxes and penalties at the expense of cash and other property of the taxpayer. If an arbitration court makes a decision to invalidate a non-normative legal act on the basis of which the tax was collected, the taxpayer will not be deprived of the opportunity to return written-off funds from the budget, since Art. 79 of Part 1 of the Tax Code of the Russian Federation provides for a mechanism for the return of amounts of excessively collected taxes, fees, penalties and fines;
Accordingly, there is no point in justifying the application for an interim measure by the impossibility of executing a judicial act in the event of non-acceptance of the security. At the same time, established by Art. 79 of the Tax Code of the Russian Federation, the procedures for returning amounts of excessively collected tax are quite complex; they provide, among other things, for the taxpayer to apply to an arbitration court. This is the justification for the difficulty of executing a judicial act in the event of failure to take interim measures.
With regard to the second basis for taking interim measures - the possibility of causing significant damage to the applicant:
illegal, undisputed collection of tax and penalties at the expense of funds and other property of the taxpayer; failure to suspend the contested decision of the tax authority is in itself a damage to the taxpayer. However, it is possible that the arbitration court will consider such justification insufficient, since Art. 79 of the Tax Code of the Russian Federation provides for the return of the amount of excessively collected tax with interest accrued on it, and this means compensation for losses incurred by the taxpayer;
it seems more preferable to justify the possibility of causing damage by the presence of monetary obligations of the organization, which may not be fulfilled (not fulfilled in full) as a result of illegal collection of taxes and penalties from funds, and possible sanctions or other adverse consequences for their failure to fulfill them. Such justification can be very different. For example, the presence of obligations for current tax payments to the budget (in case of late payments, penalties will be charged on the amount of arrears), obligations to pay wages (the social consequences of delays in payment of wages are obvious), monetary obligations under credit and other civil law agreements ( in case of late payment, the organization will bear the costs of paying penalties and other sanctions provided for in these agreements), etc. Of course, in support of such arguments, copies of relevant documents (tax returns, payroll statements, credit and other civil agreements, etc.) must be attached to the application for an interim measure;
the significance of possible damage is an assessment category, established on the basis of an assessment of the taxpayer’s arguments given in support of the need to take an interim measure. Therefore, the significance of the damage must be justified directly by the amount of tax collected, as well as the ratio of this amount to the value of the organization’s assets (fixed assets, current assets, cash, finished products and goods, accounts receivable, etc.). It is advisable to confirm the value of the organization’s assets balance sheets, appendices thereto, data from accounting registers and other accounting documents.
You should also take into account the explanation given in paragraph 2 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 13, 2004 N 83: the concept of “damage” used in part 2 of Art. 90 of the Arbitration Procedure Code of the Russian Federation, covers both damage determined according to the rules of Art. 15 of Part 1 of the Civil Code of the Russian Federation, as well as adverse consequences associated with infringement of honor, dignity and business reputation. According to paragraph 2 of Art. 15 of the Civil Code of the Russian Federation, losses are understood as expenses that a person whose right has been violated has made or will have to make to restore the violated right, loss or damage to his property (real damage), as well as lost income that this person would have received under normal conditions of civil circulation , if his right had not been violated (lost profits).
Another important point. In paragraph 3 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 13, 2004 N 83, arbitration courts are instructed to keep in mind that the suspension of acts, decisions of state and other regulatory bodies is unacceptable if there is reason to believe that the suspension of the act or decision may upset the balance interests of the applicant and the interests of third parties, public interests, and may also lead to the loss of the opportunity to execute the contested act, decision in case of refusal to satisfy the applicant’s claim on the merits of the dispute. The same is stated in the above explanations given in paragraph 10 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 No. 55.
Accordingly, it is advisable to prevent such a situation and justify in the application for an interim measure that upon completion of the consideration of the case, the opportunity to execute the decision of the tax authority will not be lost. In some cases, this can be justified by the status of the taxpayer (the organization is the largest taxpayer), the status of the organization (the taxpayer is a city-forming organization, a credit organization, a strategic enterprise or a subject of natural monopolies) or even just the organizational and legal form legal entity(the taxpayer is a state or municipal enterprise or institution). In other cases, it seems that it is necessary to provide evidence of the stability of the activities and financial stability of the organization, namely the period of activity of the organization, the value of the organization’s assets, the volume of mandatory payments to the budget and state extra-budgetary funds, etc.
It is also necessary to keep in mind that in paragraph 6 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 13, 2004 N 83, in the event that the applicant requests the suspension of a non-normative legal act, a decision to collect from him sum of money or seizure of other property and there are no convincing grounds to believe that at the end of the proceedings the applicant will have sufficient funds for the immediate execution of the contested act or decision, arbitration courts are recommended to satisfy the petition only if the applicant provides countersecurity in the manner provided for in Art. 94 Arbitration Procedure Code of the Russian Federation. At the same time, according to the explanation given in paragraph 11 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 N 55, if the evidence presented by the applicant confirms the existence of grounds for applying interim measures provided for in Part 2 of Art. 90 of the Arbitration Procedure Code of the Russian Federation, failure by the applicant to provide counter security when filing an application for interim measures, including preliminary interim measures, cannot serve as a basis for refusal to apply such measures.
Part 1 art. 92 of the Arbitration Procedure Code of the Russian Federation provides the opportunity to submit an application for securing a claim to the arbitration court both simultaneously with statement of claim, and at any time during the proceedings before the adoption of a judicial act in the case, which ends the consideration of the case on the merits.
As mentioned above, according to Part 2 of Art. 90 of this Code, interim measures are allowed at any stage of the arbitration process. Accordingly, an application for an interim measure can also be filed at the stage of appealing a court decision.
The requirements for the content of an application for securing a claim are established in Part 2 of Art. 92 Arbitration Procedure Code of the Russian Federation. In particular, the application for securing a claim must indicate:
1) the name of the arbitration court to which the application is submitted;
2) the names of the plaintiff and defendant, their location or place of residence;
3) the subject of the dispute;
4) the amount of property claims;
5) justification of the reason for filing an application to secure the claim;
6) the interim measure that the plaintiff requests to take;
7) list of attached documents.
The application for security for the claim may also indicate counter security and other information, including telephone numbers, fax numbers, addresses email persons participating in the case.
According to Part 3 of Art. 92 of the Arbitration Procedure Code of the Russian Federation, an application for securing a claim is signed by a person participating in the case or his representative. The application signed by the representative is accompanied by a power of attorney or other document confirming the authority to sign it.
In part 1 of Art. 92 of the Arbitration Procedure Code of the Russian Federation provides that a request to secure a claim may be set out in a statement of claim.
In this case, in accordance with Part 4 of this article, the petition must indicate:
justification of the reason for filing an application to secure the claim;
interim measure requested by the plaintiff.
To apply to the court with an application (petition) for an interim measure in the form of suspension of the disputed act, as when filing any application for securing a claim, in accordance with sub. 9 clause 1 art. 333.21 ch. 25.3 “State duty” of part two of the Tax Code of the Russian Federation (as amended by Federal Law No. 374-FZ of December 27, 2009), you must pay a state duty in the amount of 2000 rubles. A document confirming payment of the state duty, in accordance with Part 6 of Art. 92 of the Arbitration Procedure Code of the Russian Federation is attached to the application for an interim measure.
An approximate form of an application for an interim measure in the form of suspension of the contested decision of the tax authority is given in Appendix 14 to this book.
An application (petition) to suspend the action of a contested decision of the tax authority, as well as any application to secure a claim, in accordance with Part 1.1 of Art. 93 of the Arbitration Procedure Code of the Russian Federation is considered by a single judge no later than the next day after the day the application is received by the arbitration court without notifying the parties. Based on the results of consideration of the application, the arbitration court, in accordance with Part 5 of this article, issues a ruling on securing the claim or refusing to secure the claim.
If the court grants an application (petition) to suspend the contested decision of the tax authority, then on the basis of such a determination the court immediately issues a writ of execution, which must be presented to the tax authority for execution and on the basis of which the tax authority suspends the forced collection of taxes and penalties. An approximate form of a letter to the tax authority regarding the presentation of a writ of execution for execution is given in Appendix 15 to this book.
The tax authority in accordance with Part 7 of Art. 93 of the Arbitration Procedure Code of the Russian Federation has the right to appeal a court ruling to suspend the execution of a collection order. However, this norm establishes that filing a complaint against a ruling on securing a claim does not suspend the execution of this ruling.
If the application (request) to suspend the contested decision of the tax authority is left unsatisfied, the taxpayer, in accordance with Part 7 of Art. 93 of the Arbitration Procedure Code of the Russian Federation also has the right to appeal the court’s ruling. However, filing another such application seems to be a more effective measure. In this case, it is necessary to pay the state fee again and, of course, take into account the reasons for which the previous application (petition) was rejected. The number of applications submitted is not limited.
ABOUT SOME QUESTIONS,
RELATED TO THE APPLICATION OF PART 3 OF ARTICLE 199 OF ARBITRATION
PROCEDURE CODE OF THE RUSSIAN FEDERATION
According to Part 1 of Article 198 of the Arbitration Procedural Code of the Russian Federation (hereinafter referred to as the Code), citizens, organizations and other persons have the right to apply to the arbitration court with an application to invalidate non-normative legal acts, illegal decisions and actions (inaction) of state bodies, bodies local government, other bodies, officials, if they believe that the contested non-normative legal act, decision and action (inaction) do not comply with the law or other regulatory legal act and violate their rights and legitimate interests in the field of business and other economic activity, unlawfully impose any obligations on them, or create other obstacles to the implementation of entrepreneurial and other economic activities.
Based on Part 3 of Article 199 of the Code, the arbitration court, at the request of the applicant, may suspend the effect of the contested act or decision.
The Presidium of the Supreme Arbitration Court of the Russian Federation recommends that arbitration courts, when considering these petitions, be guided by the following:
1. Cases challenging non-normative legal acts, decisions and actions (inactions) of state bodies, local governments, other bodies, officials, including bailiffs, affecting the rights and legitimate interests of persons in the field of business and other economic activities are considered arbitration court for general rules claim proceedings with the features established in Chapter 24 of the Code (Part 1 of Article 197 of the Code).
Chapter 24 of the Code does not establish the specifics of considering petitions to suspend the validity of a non-normative legal act or decision, and therefore in this case it is necessary to take into account the relevant provisions of Chapter 8 of the Code, including the grounds for interim measures and the procedure for considering an application for securing a claim.
2. Taking into account the content of Part 2 of Article 90 of the Code, the arbitration court’s ruling to suspend the validity of the contested act or decision must provide the reasons why the applicant’s request was granted.
The said petition cannot be granted if the applicant has not provided evidence indicating that if the interim measure is not taken, the consequences specified in Part 2 of Article 90 of the Code may arise, except in cases where such consequences directly follow from the essence of the contested act, decision (Part 1 of Article 69 of the Code).
The concept of “damage” used in Part 2 of Article 90 of the Code covers both damage determined according to the rules of Article 15 Civil Code Russian Federation, as well as adverse consequences associated with infringement of honor, dignity and business reputation.
3. It must be borne in mind that the suspension of acts, decisions of state and other regulatory bodies is unacceptable if there is reason to believe that the suspension of the act or decision may upset the balance of interests of the applicant and the interests of third parties, public interests, and may also entail loss of the possibility of executing the contested act or decision in case of refusal to satisfy the applicant’s claim on the merits of the dispute.
4. The suspension of a non-normative legal act or decision in Part 3 of Article 199 of the Code does not mean declaring the act or decision invalid as a result of an interim measure of the court, but a prohibition of the implementation of those measures that are provided for by this act or decision. If the actions provided for by a non-normative legal act or decision have already been executed or their execution has begun (changes have been made to the public register, funds have been debited from an account, etc.), the courts need to find out to what extent the requested interim measure is actually enforceable and effective.
5. When issuing a determination to suspend the validity of a contested act or decision in accordance with Part 3 of Article 199 of the Code, it is necessary to pay attention to the fact that such a determination does not lead to the actual cancellation of measures aimed at the future execution of the contested non-normative legal act, decision, in particular the seizure of property applicant.
6. In the event that the applicant requests the suspension of a non-normative legal act, a decision to collect a sum of money from him or seize other property and there are no convincing grounds to believe that at the end of the proceedings the applicant will have sufficient funds for the immediate execution of the contested act or decision, the arbitration court is recommended to satisfy the petition only if the applicant provides countersecurity in the manner prescribed by Article 94 of the Code.
7. When considering petitions to suspend the validity of a non-normative legal act or decision, it must be taken into account that, in accordance with paragraph 1 of Article 25 of the Federal Law “On the Insolvency (Bankruptcy) of Credit Institutions”, an appeal of the decision of the Bank of Russia on the appointment of a temporary administration, as well as the use of measures to secure claims in the activities of the provisional administration shall not be suspended in relation to the credit institution. Based on the meaning of this norm, the activities of the temporary administration cannot be suspended until a judicial act is issued on the merits of the dispute.
It is also necessary to keep in mind that appealing the decision of the Bank of Russia to revoke a credit organization’s license to carry out banking operations in the cases provided for
ARBITRATION COURT OF THE SVERDLOVSK REGION
620075 Ekaterinburg, st. Shartashskaya, 4, www.ekaterinburg.arbitr.ru e-mail: A60.mail@ arbitr.ru
DEFINITION
on suspension of the contested non-normative act
Arbitration Court of the Sverdlovsk Region, composed of judge S.E. Kalashnik, having read the statement of the Non-Profit Partnership "Agricultural Enterprise in the Name of the Great Martyr St. George the Victorious of the Yekaterinburg Diocese of the Russian Orthodox Church"
upon application of a non-profit partnership to a State institution - Management Pension Fund Russian Federation in the city of Kamensk-Uralsky and Kamensky district of the Sverdlovsk region
on invalidation of the decision No. 075/036/РВ 1287-2014 dated 12/12/2014,
INSTALLED:
The non-profit partnership applied to the arbitration court to invalidate the decision of the Pension Fund Administration dated December 12, 2014 No. 075/036/РВ 1287-2014 in terms of clauses 4, 5. In accordance with clause 4 of the said decision, the Pension Fund Management accrued additional insurance premiums for compulsory medical insurance in the amount of 3627 rubles. 35 kopecks, for compulsory pension insurance in the amount of 22,660 rubles. 87 kop. According to paragraph 5 of the said decision, the Pension Fund Administration assessed additional insurance premiums for compulsory medical insurance in the amount of 30,500 rubles. 97 kopecks, for compulsory pension insurance in the amount of 192,904 rubles. 43 kopecks
By a court ruling dated January 27, 2014, the application was accepted for consideration by the arbitration court, and a preliminary hearing was scheduled.
At the same time, the non-profit partnership filed a petition to take measures to ensure the stated requirements by suspending the validity of the contested non-normative act.
To justify the adoption of these interim measures, the applicant indicates that failure to apply the requested interim measures may lead to adverse consequences in the form of causing significant damage to him.
Having assessed in accordance with Art. of the Arbitration Procedural Code of the Russian Federation, the evidence presented by the applicant in its totality and interrelation, the court came to the conclusion that the entrepreneur’s application to suspend the validity of the contested non-normative act must be satisfied based on the following.
According to Part 3 of Art. Section III. Proceedings in the arbitration court of first instance in cases arising from administrative and other public legal relations > Chapter 24. Consideration of cases challenging non-normative legal acts, decisions and actions (inaction) of state bodies, local government bodies, other bodies, organizations vested with separate functions by federal law state or other public powers, officials > Article 199. Requirements for an application to declare a non-normative legal act invalid, decisions and actions (inaction) illegal" target="_blank">199 of the Arbitration Procedure Code of the Russian Federation, at the request of the applicant, the arbitration court may suspend the action of a contested decision. Suspension of a non-normative act or decision means a ban on the implementation of those measures provided for by this act or decision.
(Clause 4 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 13, 2004 No. 83). Suspension of the validity of a contested act is applied according to the rules for the application of interim measures, that is, in the event that failure to take these measures may complicate or make impossible the execution of a judicial act, as well as in order to prevent causing significant damage to the applicant. The application of interim measures is aimed at maintaining the existing state of relations between the parties. Interim measures must be related to the subject of the stated claims.
According to paragraph 29 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 No. 55 “On the application of interim measures by Arbitration Courts” (hereinafter referred to as the Resolution), at the request of the applicant, the arbitration court can suspend the effect of the contested non-normative legal act, decision of a state body, local government body , other bodies, officials in accordance with
Part 3 Art. Section III. Proceedings in the arbitration court of first instance in cases arising from administrative and other public legal relations > Chapter 24. Consideration of cases challenging non-normative legal acts, decisions and actions (inaction) of state bodies, local government bodies, other bodies, organizations vested with separate functions by federal law state or other public powers, officials > Article 199. Requirements for an application to recognize a non-normative legal act as invalid, decisions and actions (inaction) as illegal" target="_blank">199 of the Arbitration Procedure Code of the Russian Federation. By virtue of Part 1 of Art. Section III. Proceedings in the arbitration court of first instance in cases arising from administrative and other public legal relations > Chapter 24. Consideration of cases challenging non-normative legal acts, decisions and actions (inaction) of state bodies, local government bodies, other bodies, organizations authorized federal law with certain state or other public powers, officials > Article 197. The procedure for considering cases of challenging non-normative legal acts, decisions and actions (inaction) of state bodies, local governments, other bodies, organizations vested by federal law with certain state or other public powers, officials" target="_blank">197 of the Arbitration Procedural Code of the Russian Federation, the application of such measures is carried out in the manner specified
Ch. 8 of the Arbitration Procedural Code of the Russian Federation, taking into account the peculiarities of proceedings in cases arising from administrative legal relations. Accordingly, suspension of the action of a contested act or decision is permissible only if there are grounds provided for in Part 2 of Art. Arbitration Procedural Code of the Russian Federation.
In accordance with Part 2 of Art. According to the Arbitration Procedural Code of the Russian Federation, interim measures are allowed at any stage of the arbitration process if failure to take these measures may complicate or make impossible the execution of a judicial act, including if the execution of a judicial act is expected outside the Russian Federation, as well as in order to prevent significant damage to the applicant .
Interim measures are allowed at any stage of the process if one of the following grounds exists: 1) if failure to take these measures may complicate or make impossible the execution of a judicial act, including if the execution of a judicial act is expected outside the Russian Federation; 2) in order to prevent significant damage to the applicant.
At the same time, in order to prevent significant damage to the applicant, interim measures may be aimed at maintaining the existing state of relations (status quo) between the parties.
Considering that interim measures are applied subject to justification, the arbitration court recognizes the party’s application for the application of interim measures as justified if there is evidence confirming the presence of at least one of the grounds provided for
Part 2 Art. Arbitration Procedural Code of the Russian Federation (clause 9 of the Resolution).
From the contents of the documents submitted by the non-profit partnership, it follows that the non-normative act is being challenged in terms of the proposal to pay insurance premiums for compulsory health insurance and compulsory pension insurance in the total amount of 225,990 rubles. 68 kopecks corresponding penalties in the amount of RUB 59,293. 48 kopecks, fines in the amount of 41,198 rubles. 19 kopecks The amount of payments proposed for payment is significant for the applicant and writing off funds in an undisputed manner may lead to disruption of its activities since it will lead to failure to fulfill obligations to suppliers and employees. A non-profit partnership was created without the purpose of making a profit when carrying out business activities, the activities are aimed at development agriculture. Maintaining the level of milk production by maintaining the barn at the proper level, granaries, and paying wages is a production necessity. There is no opportunity to pay additional accrued payments; in this case, the activity will be suspended. The court took into account the nature of the applicant’s activities and found it proven that failure to take interim measures would cause significant damage to the applicant. At the same time, the possibility of collecting additional accrued amounts will remain after consideration of the dispute. Thus, satisfying the application to suspend the decision of the Pension Fund Administration will maintain the balance of interests of the parties and will not lead to negative consequences for the budget of the Pension Fund of the Russian Federation.
The court takes into account that interim measures are an accelerated remedy; therefore, their application does not require the presentation of evidence to the extent necessary to substantiate the party’s claims and objections on the merits of the dispute. It is mandatory for the applicant to provide evidence of the existence of a disputed or violated right, as well as its violation.
Taking into account the above, in order to maintain the existing state of relations between the parties, the effect of the decision of the Pension Fund Administration dated December 12, 2014 No. 075/036/РВ 1287-2014 in the disputed part is subject to suspension.
Guided by Art. , Arbitration Procedural Code of the Russian Federation, court
DEFINED:
1. The application of the Non-Profit Partnership "Agricultural Enterprise in the Name of the Great Martyr George the Victorious of the Ekaterinburg Diocese of the Russian Orthodox Church" to suspend the action of the contested non-normative act is satisfied.
Suspend the decision Government institution- Office of the Pension Fund of the Russian Federation in the city of Kamensk-Uralsky and Kamensky district of the Sverdlovsk region dated December 12, 2014
No. 075/036/РВ 1287-2014 regarding the proposal to pay arrears of insurance premiums for compulsory health insurance and compulsory pension insurance in the total amount of 225,990 rubles. 68 kopecks corresponding penalties in the amount of RUB 59,293. 48 kopecks, fines in the amount of 41,198 rubles. 19 kopecks before the entry into force of the judicial act, which ends the consideration of the case in the court of first instance.
2. The ruling may be appealed through appeal proceedings to the Seventeenth Arbitration Court of Appeal within a month from the date of its adoption. The appeal is submitted to the arbitration court of the appellate instance through the arbitration court that adopted the ruling.
In case of appealing a ruling in the appellate procedure, information about the time, place and results of the consideration of the case can be obtained on the website of the Seventeenth Arbitration Court of Appeal http://17aas.arbitr.ru.
Judge S.E. Kalashnik
Court:
AS of the Sverdlovsk regionPlaintiffs:
Non-profit partnership "Agricultural enterprise in the name of the Great Martyr George the Victorious of the Ekaterinburg Russian Diocese Orthodox Church"Defendants:
State Administration of the Pension Fund of the Russian Federation in the city of Kamensk-Uralsky and Kamensky district of the Sverdlovsk regionIf you want to challenge a normative act that has entered into force, but do not have time to meet the existing deadlines, you have the right to suspend the existing decision by filing an appropriate application. According to the law, you have the right to challenge decisions:
tax authorities
government bodies
judicial acts
insurance authority
Any decision contested in court is satisfied by the court imposing interim measures on the other party. Their goal is to prevent any damage from being caused to the applicant through the execution of the controversial act. The types of such measures are:
imposing a ban on the defendant from performing certain actions
seizure of funds and property
suspension of property sales
transfer of disputed property for storage
Each subject of contestation has its own characteristics. So, in order to suspend the actions of the tax authority in the submitted application, you will need to refer to clause 3 of Art. 138 of the Tax Code of the Russian Federation “Appeal procedure”, indicating whose actions you are trying to appeal or suspend (existing provisions, actions of authorized persons, counterparties or an unscrupulous payer).
The situation with the suspension of actions and decisions of government bodies is more complicated. Many individuals, fearing a powerful administrative and state resource, they are afraid to challenge decisions of state bodies, even if the act adopted by the state has significant flaws and directly affects the interests of the potential applicant. However, as in other actions subject to challenge, the key role is not played by the responding party or even the subject of the dispute, but by the presence of specific evidence, the conclusiveness of which will determine the final court decision. During the action of the contested decision of the state. bodies (regulated by Chapter 22 of the Arbitration Procedure Code of the Russian Federation), its features will be:
public nature of such relations
mandatory participation in the process of a state representative
lack of possibility of proceedings in absentia (i.e. without the direct participation of one of the parties)
increased activity in the process of the prosecutor and the court itself
Regardless of the disputed subject, it is necessary to understand that the suspension of the disputed decision is an extraordinary measure that should be resorted to only in extreme cases. Regardless of the specifics of the case, the court can suspend the execution of a particular action and impose interim measures only if the applicant proves that without canceling such actions, significant damage will be caused to him, or without their cancellation it will be impossible to carry out specific actions prescribed by the court.
Examples of interim measures
- A court decision to seize the debtor’s funds came into force due to his deliberate conclusion of several invalid transactions for the purpose of unjust enrichment. Those who disagreed with this decision went to court with the debtor's creditors demanding repayment of all debts, providing the necessary evidence. Since the fact of seizure of property infringed on the rights of the debtor, the court ruled to cancel the previous decision in order to repay all debts to creditors.
- A specially authorized tax authority filed a request about the fate of the tax act declared invalid. A little later it turned out that after its abolition, several taxes were paid on its basis on already outdated grounds. In such circumstances, civil servants will be required to ask the court to impose interim measures on the actions taken and find out how serious the consequences were.