Petition for the suspension of a non-normative legal act. Suspension of the contested decision. Collateral vs. Collateral

All taxpayers have been informed that having received the decision of the tax authority on bringing to tax liability based on the results of an on-site, in-house audit and the requirement to pay tax, it is extremely advisable to initiate the process of challenging the relevant acts, as of today, all taxpayers have been informed. At the same time, applicants are often fully aware that the maximum program in the dispute is not even to recognize the non-normative act of the tax authority as invalid, but to obtain interim measures that allow them to legally defer the payment of large amounts of taxes and penalties. Practice shows that the preparation of an application for the application of interim measures using the usual templates does not always lead to the desired result.

In accordance with paragraph 1 of Art. 90 of the Arbitration Procedure Code of the Russian Federation, interim measures are temporary measures aimed at securing a claim or protecting the applicant's property interests.

Since the adoption of the new Arbitration Procedure Code of the Russian Federation in 2002, challenging non-normative legal acts, decisions and actions (inaction) of tax authorities has been separately regulated by Chapter 24 of the Code. In particular, in this chapter, a new rule for procedural legislation appeared on the possibility of suspending the contested act, decision at the request of the applicant (clause 3, article 199 of the Arbitration Procedure Code of the Russian Federation).

At the time of the appearance of such a norm, not all taxpayers decided to use it, since the interim measures provided for in Chapter 8 of the Arbitration Procedure Code of the Russian Federation seemed more traditional, reliable, with a clear application procedure (issuance of a ruling no later than the next day after the day the application was received by the court, issuance of a writ of execution ) actions. Subsequently, the position began to be expressed in the comments that the norm of paragraph 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation is also one of the interim measures and, therefore, its application is governed by the general rules of the Arbitration Procedure Code of the Russian Federation on interim measures. This point of view coexisted with the opposite one, which boiled down to the fact that the suspension of the contested act is not an interim measure.

The courts had to decide. Judicial practice in its majority applies paragraph 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation, after all, as an interim measure. Moreover, the suspension of the disputed act is considered as an interim measure in the Ruling of the Constitutional Court of the Russian Federation of November 6, 2003 No. 390-O “On the refusal to accept for consideration the request of the Administration Council Krasnoyarsk Territory on the verification of the constitutionality of part 3 of article 199 of the Arbitration Procedure Code of the Russian Federation”.

However, it is noteworthy that the Chairman of the Moscow Arbitration Court A.K. Bolshova, firstly, believes that paragraph 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation - a special measure that does not require and does not entail the application of the rules on securing a claim, and secondly, it agrees that there is no uniformity on this issue in Russian judicial and arbitration practice.

Apparently, before the Plenum of the Supreme Arbitration Court of the Russian Federation speaks on this issue, the decision to file a petition under paragraph 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation should be accepted by lawyers, depending on the practice that has developed in the tax composition of the court, where the application for the recognition of a non-normative legal act as invalid will be considered. In other words, if there is a strong belief that the decision to suspend the non-normative act under paragraph 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation will be received promptly, or promptness is not the task of filing an application, the norm of Chapter 24 of the Arbitration Procedure Code of the Russian Federation can be successfully used by the applicant.

Before the Supreme Arbitration Court of the Russian Federation formulated its position on this issue, the decision to file a petition under paragraph 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation was adopted by lawyers depending on the practice established in the tax composition of the court, where the application for the recognition of a non-normative legal act as invalid was considered. If there was a strong belief that the decision to suspend the non-normative act under paragraph 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation will be received promptly, or promptness was not the task of filing an application, the norm of Chapter 24 of the Arbitration Procedure Code of the Russian Federation was used by the applicant.

In the recently adopted Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 13, 2004 No. 83 “On Some Issues Related to the Application of Part 3 of Article 199 of the Arbitration Procedure Code Russian Federation”The final position of the highest judicial body was finally expressed: “it is necessary to take into account the relevant provisions of Chapter 8 of the Code, including on the grounds for interim measures and on the procedure for considering an application for securing a claim.”

On the one hand, regarding the procedural order of application of paragraph 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation, the disputes have now been terminated, however, on the other hand, the position of the Supreme Arbitration Court of the Russian Federation also defines more stringent requirements for determining and applying for the suspension of a non-normative act (they must be motivated), allows the court to require the provision of counter security by the applicant.

Most importantly, the Supreme Arbitration Court of the Russian Federation explained that suspension of a non-normative legal act means a ban on the execution of those measures that are provided for by these acts. It seems that in the petition the applicant must now very clearly substantiate what measures are provided for by the contested act, what is the possible damage to the applicant and / or what is the threat of the impossibility of executing a future judicial act as a result of the execution of these measures. The simplest and, it would seem, the most reliable way to protect the interests of the applicant is, simultaneously with filing an application with the court for the invalidation of a non-normative act of the tax authority, applying to the court with a request to impose, as an interim measure, a ban on the tax authorities to collect tax and penalties on the basis of act of the tax authority by making a decision on collection, sending collection orders to write off the specified amount from bank accounts, issuing a resolution on the collection of tax on the property account (clause 2 clause 1 article 91 of the APC of the Russian Federation).

This measure seems to be both reliable and legal at the same time. In accordance with the norms of the APC of the Russian Federation, under certain conditions, the court has the right to issue a judicial act (determination) aimed at temporarily restricting the rights of the tax authority to collect tax payments from the taxpayer.

However, unexpectedly, in some courts, or even just individual tax judges of a particular court, rulings began to appear on the refusal to apply interim measures due to the lack of a document on the basis of which sums of money are written off in an indisputable manner. In the decision to bring to tax liability, the taxpayer is simply invited to pay the amount of tax voluntarily.

At the same time, in support of their position, the courts refer to paragraph 6 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 31, 1996 No. 13 “On the application of the Administrative Code of the Russian Federation when considering cases in the court of first instance”, interpreting it as an indication of the admissibility of the prohibition for the defendant to write off monetary the plaintiff's funds only in cases where a statement of claim is filed to invalidate the act on the basis of which the funds are debited.

That is, the courts in this case are pushing the applicant to use paragraphs. 5 p. 1 art. 91 of the Arbitration Procedure Code of the Russian Federation (“suspension of recovery under an executive or other document disputed by the plaintiff, the recovery of which is carried out in an indisputable (non-acceptance) manner”). In relation to the situation with the collection of tax, the documents on the basis of which an indisputable collection is made will be, firstly, the decision to collect the tax, fee, as well as penalties at the expense of Money taxpayer (payer of fees), organization or tax agent - organization on bank accounts, secondly, collection orders.

On the one hand, one can agree with such a position, since, on the basis of the decision to bring to tax liability, no sums of money are actually collected. However, we still believe that the meaning of interim measures is very clearly indicated in paragraph 2 of Art. 90 of the Arbitration Procedure Code of the Russian Federation: interim measures are allowed if the failure to take these measures may make it difficult or impossible to enforce the judicial act, as well as in order to avert significant damage to the applicant.

Consequently, the reason for the application of an interim measure by the court is the potential danger of the impossibility of executing the judgment.

Based on this understanding of interim measures, it is completely unreasonable to wait for the start of a real penalty. Moreover, a wait-and-see attitude can lead precisely to causing damage in the event of a write-off of funds (after all, you may not have time to receive collateral). The Arbitration Procedure Code of the Russian Federation does not contain any instructions on the advisability of applying one or another security measure - it is up to the applicant to decide.

At the same time, the wording of para. 5 p. 1 art. 91 of the Arbitration Procedure Code of the Russian Federation assumes that the document on the basis of which an indisputable recovery is carried out will be disputed, and this may mean the need to expand the subject of the claim after receiving such documents. It is noteworthy that in the application of paragraphs. 5 p. 1 art. 91 of the Arbitration Procedure Code of the Russian Federation there is no uniformity: more loyal courts believe that it is possible to suspend the recovery on the basis of a decision to bring a tax offender to tax liability. Perhaps this is not entirely true from the point of view of theory (as already indicated, the decision to bring to tax liability is certainly not a document on the basis of which the recovery is carried out in an indisputable manner), but in general it is beneficial to the applicant.

If the court takes the toughest position and expects exactly the document on the basis of which the recovery is carried out, then the applicant may find himself in a difficult situation. After all, if the decision to collect the tax, taken in the manner prescribed by Art. 46 of the Tax Code of the Russian Federation, will be issued within the time period established by law (60 days from the date of expiration of the deadline for voluntary tax payment) and in a form that does not contradict the Order of the Ministry of Taxation of the Russian Federation dated August 29, 2002 No. BG-3-29 / 465, the taxpayer may not have sufficient grounds for challenging it until the acts on the basis of which the recovery is made (that is, the decision to bring to tax liability and the requirement to pay tax) are declared invalid.

After the expiration of the period for voluntary payment of tax, the tax authority has the right to collect in an indisputable manner by sending collection orders to the bank to debit funds from the taxpayer's accounts.

Collection orders are sent to the bank simultaneously with the decision to collect the tax. Clause 12.7 of the Regulation on non-cash payments dated 03.10.2002 No. 2-P provides for the bank's obligation to execute the received collection order if there are funds in the account, that is, on the same banking day.

At the same time, in paragraph 3 of Art. 46 of the Tax Code of the Russian Federation, only the obligatory bringing to the attention of the taxpayer within 5 days of the decision on such a recovery is allocated, but no time period is established that allows the suspension of the recovery (both by challenging the decision on recovery, and by voluntary payment).

In addition, prior to the issuance of Order No. BG-3-29/465 of the Ministry of Taxation of the Russian Federation dated August 29, 2002, which introduced the form of a recovery decision, the tax authorities, in accordance with Art. 46 of the Tax Code of the Russian Federation carried out collection without making such a decision in the form of a separate document (by sending collection orders).

At present, the decision on collection in accordance with the form approved by the order of the Ministry of Taxation of the Russian Federation indicates that the deadline for paying the tax has expired, in connection with which the tax is collected, as well as penalties within the amounts specified in the demand, at the expense of funds in the accounts in banks, and also contains an indication only of bringing to the attention of the taxpayer the decision mentioned above within 5 days, but not that the decision will be executed after 5 days or another period.

Thus, at the time of receipt by the taxpayer of the decision of the tax authority on the collection of tax and penalties, funds from bank accounts may already be written off in an indisputable manner. At the same time, the undisputed debiting of the disputed amount from the taxpayer's accounts by the tax authority will prevent the immediate restoration of the violated rights and legitimate interests of the applicant, which is provided for in paragraph 7 of Art. 201 APC RF. According to the aforementioned norm, court decisions in cases of contesting non-normative legal acts, decisions and actions (inaction) of state bodies (which include tax authorities) are subject to immediate execution, which means the immediate restoration of the rights and legitimate interests of the taxpayer violated by the adoption of an act that does not comply with the law .

Therefore, given the simultaneous issuance of a decision on the collection of collection orders, the lack of time for the taxpayer to react to the decision on collection, the procedural complexity of challenging such documents, it is difficult to protect the interests of the taxpayer by suspending the collection of such documents. However, before receiving such documents, the taxpayer cannot be deprived of the opportunity to apply to the court for the application of interim measures.

In this regard, in order to protect the interests of the taxpayer from unjustified infliction of significant damage, as well as to ensure the execution of a judicial act, if the applicant's claims are satisfied, the interim measure provided for in paragraphs. 2 p. 1 art. 91 of the Arbitration Procedure Code of the Russian Federation, namely "prohibition of the defendant and other persons to perform certain actions relating to the subject of the dispute."

The possibility of applying such an interim measure is directly indicated in paragraph 10 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 5 dated February 28, 2001 “On Certain Issues of the Application of Part One of the Tax Code of the Russian Federation”, which establishes the legality of the prohibition of the tax authority to recover the disputed amounts when filing a claim for invalidating the claim of the tax authority for the recovery of arrears and penalties.

In addition to the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation, the established practice of arbitration courts also widely uses the issuance of a ruling on securing a claim in the form of a prohibition for the tax authority to take actions aimed at enforcing its decision before the court decision enters into legal force (clause 2, clause 1, article 91 of the APC RF 2002, paragraph 2, paragraph 1, article 76 of the Arbitration Procedure Code of the Russian Federation 1995).

The adoption by the tax authority of a decision on collection, the sending of collection orders to banks, and in the event of a lack of funds in the accounts, the issuance of a decision on collection at the expense of other property of the taxpayer is directly related to the subject of the dispute (challenging non-normative legal acts that served as the basis for such collection). In addition, the issuance of these acts by the tax authority, and, consequently, the debiting of funds from bank accounts will be carried out on the basis of the contested acts.

Thus, the ban on the implementation by the tax authority side effects in terms of the disputed amounts, it seems to be a well-founded measure.

However, if the above arguments did not have a proper effect on the court, the applicant was left with a ruling on the refusal to apply interim measures, it is most often inappropriate to appeal such a ruling on appeal due to the lengthy time spent on appeal, especially considering the possible speed of writing off taxes and penalties from accounts. It turns out that in such a situation, it is optimal to “accelerate” in the tax authority the decision to foreclose on monetary funds, supplement the subject of the claim with a requirement to invalidate the decision on collection at the expense of monetary funds (specially stipulating that the grounds for the application do not change, therefore, Art. 49 of the Arbitration Procedure Code of the Russian Federation is complied with) and achieve the suspension of the recovery already on this basis (clause 5, clause 91 of the Arbitration Procedure Code of the Russian Federation).

With regard to interim measures in tax disputes, one more question remains: if the stage of collection at the expense of funds by the tax authority has been unsuccessfully completed due to lack of money in the accounts, a decision has already been made to collect taxes and fees at the expense of the taxpayer’s property and, moreover, has already been initiated in in accordance with the law, enforcement proceedings on such a decision - is it possible to suspend enforcement proceedings as part of interim measures? Despite the fact that at first glance, enforcement proceedings are closely related to the subject of the dispute (in fact, it is), the provisions of paragraph 1 of Art. 327 of the Arbitration Procedure Code of the Russian Federation provide for the possibility of its suspension only on the basis of writ of execution issued by the arbitration court. Consequently, the satisfaction of such a requirement (suspension of enforcement proceedings), most likely, will be denied due to lack of jurisdiction.

At the same time, having received a decision to suspend the collection of the decision to collect taxes and fees at the expense of property (using subparagraph 5 of paragraph 1 of article 91 of the Arbitration Procedure Code of the Russian Federation, while supplementing the subject of the claim or not - the applicant decides depending on the position of the court) , the taxpayer has every right to count on the mandatory suspension of enforcement proceedings, guided by paragraph 6 of Art. 20 of the Federal Law “On Enforcement Proceedings” (“issuance of a decision by an official who, under federal law, has the right to suspend the execution of a judicial act or an act of another body on the basis of which an enforcement document was issued, as well as the execution of a document that, by virtue of law, is an enforcement document”).

From the foregoing, the following conclusion can be drawn: having full information about the practice of applying interim measures by the tax composition of the court where the dispute will be considered, the applicant will be able to protect his interests most effectively. The most common “recipe” is, of course, a ban on the tax authority from taking any actions that may lead to the collection of tax, within the framework of paragraphs. 2 p. 1 art. 91 APC RF. If it is not possible to obtain a ruling on the application of interim measures in such a wording, it is necessary to prepare petitions, already integrating into the understanding of a specific judge of measures of provision in tax disputes.

ABOUT SOME QUESTIONS

RELATED TO THE APPLICATION OF PART 3 OF ARTICLE 199 OF THE ARBITRATION

PROCEDURE CODE OF THE RUSSIAN FEDERATION

According to part 1 of article 198 of the Arbitration Procedure Code of the Russian Federation (hereinafter referred to as the Code), citizens, organizations and other persons have the right to apply to an arbitration court with an application for invalidating non-normative legal acts, illegal decisions and actions (inaction) of state bodies, local government bodies, other bodies, officials, if they believe that the disputed 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 entrepreneurial and other economic activities, illegally impose on them any obligations, create other obstacles for the implementation of entrepreneurial and other economic activities.

On the basis of part 3 of article 199 of the Code, the arbitration court, at the request of the applicant, may suspend the contested act or decision.

The Presidium of the Supreme Arbitration Court of the Russian Federation recommends that arbitration courts, when considering these applications, be guided by the following:

1. Cases on challenging non-normative legal acts affecting the rights and legitimate interests of persons in the field of entrepreneurial and other economic activities, decisions and actions (inaction) of state bodies, local governments, other bodies, officials, including bailiffs, are considered arbitration tribunal for general rules action 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 consideration of applications for suspension of a non-normative legal act, decision, and therefore, in this case, it is necessary to take into account the relevant provisions of Chapter 8 of the Code, including on the grounds for interim measures and on 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 in the ruling of the arbitration court on the suspension of the contested act, the decision must be given the reasons on which the applicant's petition was satisfied.

The said petition cannot be satisfied if the applicant has not submitted evidence showing that in case of failure to take an interim measure, the consequences specified in paragraph 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 in accordance with the rules of Article 15 of the Civil Code of the Russian Federation and adverse consequences associated with infringement of honor, dignity and business reputation.

3. It must be borne in mind that it is unacceptable to suspend the validity of acts, decisions of state and other regulatory bodies, if there is reason to believe that the suspension of the act, decision may upset the balance of the interests of the applicant and the interests of third parties, public interests, and may also entail loss of the ability to execute the contested act, decision in case of refusal to satisfy the applicant's claim on the merits of the dispute.

4. Suspension of a non-normative legal act, decision in part 3 of Article 199 of the Code is understood not as the recognition of an act, decision as invalid as a result of an interim measure of the court, but a ban on the execution of those measures that are provided for by this act, decision. If the actions stipulated by the non-normative legal act have already been executed by the decision or their execution has begun (changes have been made to the public register, funds have been debited from the account, etc.), the courts need to find out how the requested interim measure is actually enforceable and effective.

5. When issuing a ruling to suspend the contested act, decision in accordance with paragraph 3 of Article 199 of the Code, attention must be paid to the fact that such a ruling does not lead to the actual cancellation of measures aimed at the future enforcement of the contested non-normative legal act, decision, in particular, the seizure of property the applicant.

6. In the event that the applicant petitions for the suspension of the operation of a non-normative legal act, a decision to recover a sum of money from him or to seize other property and there are no convincing grounds to believe that after the end of the proceedings on the case, the applicant will have sufficient funds for the immediate execution of the contested act or decision, the arbitral tribunal is recommended to satisfy the application only if the applicant provides counter security in the manner prescribed by Article 94 of the Code.

7. When considering petitions for the suspension of a non-normative legal act or decision, it should 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 against the decision of the Bank of Russia on the appointment of an interim administration, as well as the application of measures to secure claims in in relation to a credit institution, the activities of the provisional administration shall not be suspended. Proceeding from the meaning of this norm, the activities of the interim administration cannot be suspended until a judicial act is issued on the merits of the dispute.

It should also be borne in mind that an appeal against a decision of the Bank of Russia to revoke a banking license from a credit institution in the cases provided for

Part 3 of Article 199 of the Arbitration Procedure Code of the Russian Federation: application practice

In accordance with Part 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation, at the request of the applicant, the arbitration court may suspend the contested non-normative legal act or decision.
In the practice of arbitration courts, questions arose on the application of this rule. Today there are two points of view. One of them boils down to the fact that the measure enshrined in Part 3 of Art. 199 of the Code is special and therefore should be applied without taking into account the requirements of Chapter 8 of the Arbitration Procedure Code of the Russian Federation, i.e. without taking into account the rules provided for the application of interim measures. Another point of view - the exact opposite. It is expressed in the comments to the APC of the Russian Federation(1).
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(1) Commentary on the APC of the Russian Federation / Ed. V. f. Yakonlev and M.K. Yukov. M., 2003. S. 538. Commentary on the APC RF / Ed. G. A. Zhilina. M., 2003. S. 486.

If we adhere to the second point of view, then, firstly, the ruling on suspension of the contested act, decision or refusal to suspend the contested act, decision, issued in accordance with Part 3 of Art. 199 APC RF, subject to appeal by virtue of Art. 188 and 93 of the Code. Secondly, the applicant's request for the suspension of the disputed act, the decision under Art. 92 of the Arbitration Procedure Code of the Russian Federation must be motivated: contain a rationale for the reasons for filing an application for security. Thirdly, in accordance with Art. 90 of the Arbitration Procedure Code of the Russian Federation there must be grounds for taking interim measures, i.e. failure to take measures to suspend the contested act, decision may in the future make it difficult or impossible to enforce the judicial act.
Law enforcement practice tends to believe that these measures are provisional. An example is the Ruling of the Constitutional Court of the Russian Federation of 06.11.2003 No. 390-O “On the refusal to accept for consideration the request of the Administration Council of the Krasnoyarsk Territory to verify the constitutionality of part 3 of article 199 of the Arbitration Procedure Code of the Russian Federation”. It says that “provisional measures in administrative proceedings carried out by arbitration courts are not discriminatory in relation to any party in the process; their application is carried out within the discretionary powers of arbitration courts and on the basis of the principles of competitiveness and procedural equality of the parties” . In this regard, the said Definition states that due to the absence of uncertainty in the issue of compliance with the Constitution of the Russian Federation, the provisions of Part 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation, the request cannot be accepted by the Constitutional Court of the Russian Federation for consideration.
Thus, for the persons participating in the case, the question of how such a petition should be motivated becomes relevant, and for arbitration courts - what are the grounds for accepting or refusing to take interim measures in this case.
In the light of the foregoing, the Arbitration Practice magazine offers readers a discussion on the practice of applying Part 3 of Art. 199 APC RF.
S. A. GOLUBEV, Director of the Legal Department of the Bank of Russia, Honored Lawyer of the Russian Federation, PhD in Law;
A. G. GUZNOV, Deputy Director of the Legal Department of the Bank of Russia, PhD in Law:
- The APC of the Russian Federation, as you know, does not directly attribute the measure provided for by Part 3 of Art. 199, to the provisional measures specified in Chapter 8 of the Code. In addition, Chapter 8 regulates the procedure for the application of interim measures in the consideration of cases related to economic disputes, i.e. civil law relations. Article 199 refers to that part of the Arbitration Procedure Code of the Russian Federation, which regulates the procedure for considering disputes arising from administrative-legal relations.
Therefore, judgments were quite widespread (including those formulated in court decisions) that this measure is independent and that it should be introduced by the court almost automatically. It was allowed to submit an oral petition (with the identification of the institution of a petition, provided for in Part 3 of Article 199 of the APC of the Russian Federation, and petitions made during a court session (Article 159 of the APC of the Russian Federation). A possible goal of such a “simplified” approach was to involve the institution of so-called conciliation procedures (Article 190 of the Arbitration Procedure Code of the Russian Federation) (2): they say, the court will introduce measures under Part 3 of Article 199, and this will allow the parties to a dispute arising from public law relations to agree, for example, on a “special” regime for the application of a non-normative legal act .
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(2) Ed.: see Conclusion of an agreement under Art. 190 Arbitration Procedure Code of the Russian Federation: discussion within the framework of an absentee round table // Arbitration practice. 2004. No. 1.

The intention may be good. However, it can lead to a result far from the desired one. Curious about what (in relation to the decisions of the Bank of Russia) can be negotiated with a bank whose license to conduct banking operations has been revoked? Probably, only that under the “cover” of the measure of Part 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation, a bank with a revoked license will be allowed to complete the asset withdrawal process.
As a matter of fact, when this measure was introduced in relation to the orders of the Bank of Russia to revoke the license to carry out banking operations, such a process took place. Thus, the Bank of Russia received information that during the period of the measures related to With suspension of the orders of the Bank of Russia to revoke the license to carry out banking operations and to appoint a temporary administration (case of the Arbitration Court of Moscow No. A40-40208 / 02-106-229), the building belonging to the bank that applied for the application of these measures was mortgage to another person (registered pledge). The Bank of Russia also had information that the mentioned bank carried out offsets of monetary obligations with interested parties.
In another similar case, according to the information of the Bank of Russia, the bank carried out the transfer of claims, the sale of property (case of the Arbitration Court of the Republic of Buryatia No. A10-3794/02). In the same context, there are frequent cases of “loss” of documents (for example, loan agreements), the absence of which did not allow in the course of bankruptcy proceedings to present reasonable claims against the debtors of a bankrupt bank.
Moreover, we draw your attention to the fact that in this case the measures provided for in Part 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation were applied to orders of the Bank of Russia on the appointment of a temporary administration for the management of a credit institution (its appointment is provided for in Article 74 of the Federal Law Art. 20 FZ and Chapter 3 of the Federal Law "On Insolvency (Bankruptcy) of Credit Institutions") and on the revocation of a license to carry out banking operations (Article 20 of the Federal Law "On banks and banking activity", Art. 74 FZ
At the same time, federal laws, the norms of which can be considered special in relation to the norms of the agrarian and industrial complex of the Russian Federation, contained direct indications of the inadmissibility of suspending their action. Yes, par. 2 p. 1 art. 25 FZ "On the insolvency (bankruptcy) of credit organizations" provides that an appeal against the decision of the Bank of Russia on the appointment of a provisional administration, as well as the application of measures to secure claims against a credit institution, does not suspend the activities of the provisional administration. the federal law "On banks and banking activity"(Part 5, Article 20) determines that an appeal against a decision of the Bank of Russia to revoke a banking license from a credit institution, as well as the application of measures to secure claims against a credit institution, does not suspend the validity of such a decision of the Bank of Russia.
Alas, many courts ignored these norms - at least until the Presidium of the Supreme Arbitration Court of the Russian Federation emphasized in Information Letter No. 74 of August 15, 2003 "On Certain Peculiarities of the Consideration of Insolvency (Bankruptcy) Cases of Credit Institutions" the specified feature of the consideration of cases related to the invalidation of decisions of the Bank of Russia to revoke licenses from credit institutions.
Consideration of the measure provided for by Part 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation, as a kind of interim measure and, accordingly, the application of the rules of Chapter 8 of the Code allows at least talking about it as a measure requiring justification according to the rules of Part 2 of Art. 90 and part 2 of Art. 91 APC RF. Actually, such a campaign is contained in a number of comments to the APC of the Russian Federation (3).
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(3) See, for example, Commentary, ed. V. F. Yakovlev and M. K. Yukov. S. 538.

It seems that this approach is more reasonable, since in more meets the fundamental principle of legal proceedings - the principle of balance of interests. In the absence of a clear justification for the introduction of the measure enshrined in Part 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation, this principle is clearly violated. Indeed, on what grounds, with the help of what arguments can a court ruling be appealed if it contains nothing other than the phrase “the court considers it possible to satisfy the petition, since it does not contradict Part 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation” (case of the Arbitration Court of Moscow No. А40-7045/03-121-78)?
The appellate instance, which considered the complaint, indicated only that “in accordance with Art. 199 of the Arbitration Procedure Code of the Russian Federation, at the request of the applicant, the arbitration court may suspend the contested act. Consequently, the court had the right to suspend the Bank of Russia order.” The court of cassation also confirmed the legality of the judicial acts issued earlier in the case.
It is important to understand that the order of the Bank of Russia to prohibit the bank from performing a number of banking operations was suspended (a measure provided for by Article 74 of the Federal Law "On the Central Bank of the Russian Federation ( Bank of Russia)»). The instruction was sent due to the fact that for a long time the bank had a file of unpaid settlement documents in the amount of almost 7 million rubles, including for obligations to depositors - individuals. Among the operations, the implementation of which was prohibited, the ban on attracting deposits from individuals and legal entities, as well as for the implementation of settlements on behalf of third parties in terms of transferring funds to the budget (a ban against the so-called "promissory note" tax payment schemes).
Result: after a six-month "trial", the decision of the Bank of Russia was recognized as valid, by that time the bank's license for banking operations had been revoked, and over the past time, the debt to third parties that had not previously been creditors of the bank increased sharply.
Therefore, as follows from Part 1 of Art. 92 of the Arbitration Procedure Code of the Russian Federation, the applicant is obliged, when submitting a petition for the suspension of a non-normative legal act, a decision, to indicate the grounds for his petition, which must comply with the requirements of Part 2 of Art. 90 APC RF. At the same time, arbitration courts in accordance with Part 3 of Art. 15 and paragraph 6, part 1, art. 185 of the Arbitration Procedure Code of the Russian Federation must indicate the reasons for issuing rulings on the suspension of acts, decisions of public bodies.
There is a certain specificity in the methods applied by the Bank of Russia to credit organizations coercive measures, and it should also be taken into account by arbitration courts when making determinations related to the application of Part 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation, as arising from the peculiarities of legal relations in the banking sector.
The use of coercive measures by the Bank of Russia against credit institutions is provided for by the above federal laws. These measures, by their legal nature, with the exception of a fine, refer to measures of administrative-imperious coercion, but not administrative punishment. The purpose of these measures, based on the meaning of the norms of Art. 66 FZ "On the Central Bank of the Russian Federation (Bank of Russia)", is to protect the interests of creditors (depositors) of credit institutions, as well as public interests. Therefore, these measures are legitimate in accordance with the principles contained in Part 3 of Art. 55 of the Constitution of the Russian Federation, the rights of a credit institution are limited for purposes based on the constitutional principle of respect for other people's rights and freedoms (part 3 of article 17 of the Constitution of the Russian Federation).
The law determines the grounds for the application of coercive measures. They are associated with the occurrence of such circumstances in the activities of a credit institution that may lead to its bankruptcy and cause significant damage to the legitimate interests of creditors (depositors). Such circumstances include, in particular, cases where violations or banking operations or transactions performed by a credit institution created a real threat to the interests of its creditors (depositors) (part 2 of article 74 of the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)", Art. 4 FZ "On the Insolvency (Bankruptcy) of Credit Institutions").
The legislator, as already mentioned, in two cases directly limited the possibility of suspending the measures applied by the Bank of Russia to credit institutions, apparently bearing in mind the specifics of banking supervision, the goals for which it is aimed. Therefore, it is quite logical if, when choosing the grounds for taking the measures provided for in Part 3 of Art. 199 APK RF , the courts took into account not so much the possibility of causing significant damage to the applicant bank, but the consequences of the suspension of measures applied by the Bank of Russia for the bank's creditors.
A. K. BOLYPOVA, Chairman of the Moscow Arbitration Court:
- Discussion on the application of Part 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation is very timely and relevant, it is important both for the law enforcement practice of courts and for the real protection of the rights and interests of participants in cases of challenging non-normative acts, decisions and actions (inaction) of bodies and persons vested with power.
The main issue under discussion is the measure provided for by Part 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation, is it special or it must be applied subject to the requirements of Chapter 8 of the Code "Provisional Measures of the Arbitration Court".
We believe that the measure to suspend the validity of an act or decision, having the features of an interim measure - urgency and temporality, is nevertheless special and, as such, is applied only when considering a narrow range of issues related to contesting non-normative acts, decisions of state bodies, local governments, other bodies , officials.
The peculiarity of the application of this rule, from our point of view, is that it does not require mandatory justification and, most importantly, the presentation of evidence of the need to suspend the contested non-normative act or decision, since the threat of violating the rights and interests of the applicant is contained in the act or decision itself. Introducing a special norm into Chapter 24 of the Arbitration Procedure Code of the Russian Federation, the legislator proceeded from the specifics of the legal relations regulated by it. Enforcement of a non-normative act or decision of a body or official with authority before the case is considered may lead to negative, sometimes irreversible consequences for the applicant or third parties. Requiring the applicant to provide evidence to support this is practically unfeasible. That is, a petition to suspend the contested non-normative act or decision will never be granted.
One of the conditions for the application of interim measures is the protection of the interests of the applicant in the execution of a judicial act. In cases on contesting non-normative acts of decisions, this condition is always absent, since if the applicant’s claim is satisfied, the act is declared invalid, and the decision is illegal in whole or in part, therefore they are not subject to execution.
Thus, in connection with the decision taken by the prefect of the administrative district to close the markets, the companies managing the markets were ordered to draw up schedules for the phased withdrawal of retail facilities from the territory of the markets, to take measures to remove them from the occupied areas.
The court granted the application of the management companies to suspend the prefect's order, since the implementation of the order would entail a gross violation of the rights and legitimate interests of trade organizations occupying premises on the basis of existing lease agreements, and the obligation of the management companies to compensate for the losses caused by illegal actions. Failure to comply with the order of the prefect would also entail negative consequences for the management companies.
The court suspended the act of the administration of the Federal Tax Police Service for the Central Administrative District of Moscow, which suspended operations on accounts in financial and credit institutions, since the implementation of the instructions disputed by the applicant hinders the implementation of entrepreneurial activities, the production of settlements under contracts, and the payment of wages to employees.
At the same time, in case of suspension of the act or decision, no negative consequences for the body or official that issued the non-normative act or made the decision do not occur - the act or decision is postponed only for the duration of the consideration of the case, if the applicant's claim is denied.
If the legislator attributed the named measure to interim measures, he would directly indicate this in part 3 of Art. 199 APC RF.
An analysis of the norms of the Arbitration Procedure Code of the Russian Federation, in particular Chapter 8, indicates that, having once established the procedure for considering a particular issue, the legislator, in order to avoid repetition in an article providing for the commission of certain procedural actions, indicates that the issue regulated by this norm is considered in the manner established in another article of the Code. This is how part 3 of Art. 90, part 5 of Art. 94, part 3 of Art. 96, part 2 of Art. 97, part 2 of Art. 99, Art. 100 APK RF. References to other articles of the Code in Part 3 of Art. 199 is not included.
According to Art. 189 of the Arbitration Procedure Code of the Russian Federation, cases arising from administrative and other public legal relations are considered according to the general rules of action proceedings with the features established for cases arising from administrative and other public legal relations.
We believe that the provisions of Part 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation, the possibility of suspending an act or decision in a manner different from that provided for in Chapter 8 of the Code for the application of interim measures, and there is one of the features of considering cases on contesting non-normative acts, decisions and actions (inaction) of state bodies, local governments, other bodies, officials persons.
In the ruling adopted on a petition to suspend the act or decision, the court must motivate the grounds for both satisfying the petition and refusing to satisfy it, since the suspension of the act or decision is a right, not an obligation of the court. Justification of the decision taken by the court is mandatory for any judicial act. The question of the application of Part 3 of Art. 208 of the Arbitration Procedure Code of the Russian Federation, although the rule contained in it on the possibility of suspending the execution of a decision of an administrative body on bringing to administrative responsibility is similar to that under discussion.
T. K. ANDREEVA, Judge, Head of the Department of Legislation of the Supreme Arbitration Court of the Russian Federation, Candidate of Law:
- Challenging non-normative legal acts, decisions and actions of state bodies, local authorities, other bodies and officials is one of the ways to protect the civil rights of persons engaged in entrepreneurial and other economic activities.
As a procedural guarantee of such protection, the legislator in Part 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation provided for the possibility of suspending the contested act, decision at the request of the person who applied to the arbitration court with an application to recognize the relevant act as invalid or to declare the decision illegal. Application specified in Part 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation, the measures are carried out within the discretionary powers of the arbitration court, when the court is vested with the right (and not the obligation) to decide on the satisfaction of the applicant's petition at its own discretion. With this in mind, A also, based on the nature of the measure under discussion, the purpose of its application, it seems legitimate to consider the suspension of the contested act, decision as one of the safeguards.
The attribution of the measure provided for by Part 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation, among the security ones does not contradict Art. 91 of the Code, according to which the arbitration court may take not only the measures mentioned in this article, but also other interim measures.
The measure enshrined in Part 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation, is also considered as a security in the Ruling of the Constitutional Court of the Russian Federation dated 06.11.2003 No. 390-0.
The characterization of this measure as a security measure gives grounds to speak about the need to comply with the requirements of Chapter 8 of the Arbitration Procedure Code of the Russian Federation when applying it. Taking into account the requirements of Chapter 8 is all the more justified since this Chapter is one of the general provisions (Section I) of the Code applicable in the implementation of legal proceedings in arbitration courts, no matter what disputes and cases it may concern, at whatever stage of the arbitration process it may be carried out.
The need to comply with the requirements of Chapter 8 of the Arbitration Procedure Code of the Russian Federation when applying the measure provided for in Part 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation, means that the applicant must substantiate the reason for his application in the petition for suspension of the contested act, decision. At the same time, one should keep in mind the provisions established in Part 2 of Art. 90 of the Arbitration Procedure Code of the Russian Federation grounds for the application of interim measures.
It seems that the suspension of the contested act, decision is aimed at minimizing its negative consequences, including preventing possible significant damage to the applicant. If the applicant has not substantiated the need to suspend the disputed act, decision (based on the grounds of part 2 of article 90 of the Arbitration Procedure Code of the Russian Federation), then there are no prerequisites for the introduction of the said interim measure.
Interim measures, including the one under discussion, are applied by the arbitration court in order to prevent the difficulty or impossibility of enforcing a judicial act, as well as to prevent causing significant damage to the applicant (Article 90 of the Arbitration Procedure Code of the Russian Federation).
The presence of the listed grounds shall be established by the arbitration court when considering a motion to suspend the contested act or decision. If the provisions of Art. 90 of the Arbitration Procedure Code of the Russian Federation there are no grounds for taking this interim measure, then by virtue of Part 3 of Art. 93 of the Arbitration Procedure Code of the Russian Federation, the court may refuse to secure the stated claim.
Based on the results of consideration of the application for the application of interim measures, a ruling is issued (part 5, article 93 of the Arbitration Procedure Code of the Russian Federation). This definition is subject to the requirements of Art. 185 of the Arbitration Procedure Code of the Russian Federation, on the content of the definition. Therefore, the arbitral tribunal must indicate in the ruling issued upon the results of consideration of the petition for suspension of the disputed act, the decisions, the motives on which it came to its conclusions, accepted or rejected the arguments of the applicant, etc. (clause 6, part 1, article 185 of the APC RF).
Thus, the decision of the arbitration court to suspend the contested act, decision (as well as any other decision of the court) must be motivated. This is indicated in Part 3 of Art. 15 APC RF.

E. N. NAGORNYA, candidate of legal sciences(4):
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(4) E.N. Nagornaya - chairman of the judicial composition of the Federal Arbitration Court of the Moscow District.

Cases on contesting non-normative legal acts of state bodies are considered by an arbitration court according to the general rules of action proceedings provided for by the APC of the Russian Federation, with the features established in Chapter 24 (part 1 of article 197 of the APC of the Russian Federation).
According to part 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation, at the request of the applicant, the arbitration court may suspend the contested act or decision.
In essence, this power of the arbitral tribunal is similar to its right to take an interim measure, provided for in paragraph 5 of part 1 of Art. 91 of the Arbitration Procedure Code of the Russian Federation, in the form of a suspension of collection on a document disputed by the plaintiff, the collection of which is carried out in an indisputable (non-acceptance) manner, for example, at the request of the tax inspectorate to pay tax.
From the text of Part 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation it follows that the court is not in all cases without exception obliged to suspend the operation of a non-normative legal act of a tax authority, he has the right to exercise this power.
Thus, not in any case, the court is obliged to take interim (including preliminary) measures only on the grounds that, by virtue of law, court decisions challenging non-normative legal acts of state bodies are subject to immediate execution. This contradicts both Part 1 of Art. 197 of the Arbitration Procedure Code of the Russian Federation, which provides for the consideration of cases arising from public legal relations, not in a general manner, but with certain features, and Part 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation, which establishes one of the features - the discretion of the court to suspend the contested act, depending on the specific circumstances, but not its unconditional suspension.
From this point of view, the approach seems correct when the court, when taking interim (including preliminary) measures, takes into account the specific circumstances of the case, in particular, the taxpayer's overpayment of taxes, which is several times higher than the amount of tax additionally assessed by the inspectorate.
At the same time, based on the similarity of the powers of the arbitration court, established by Part 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation, with his right to take interim measures, when considering the court petition applicant in order h. 3 Article. 199 should be guided by Part 2 of Art. 90 Code. According to this rule, interim measures are allowed if their failure to take may make it difficult or impossible to enforce a judicial act, including in order to prevent significant damage to the applicant.
This approach was applied by the Federal Antimonopoly Service of the Moscow District when considering case No. КА-А40/5794-03 on invalidating the order of the Federal Securities Commission of Russia. The Federal Antimonopoly Service of the Moscow District canceled the decisions made on the basis of Part 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation of April 28, 2003 and the decision of the appellate instance of June 25, 2003 of the Moscow Arbitration Court in case No. A40-17354 / 03-84-259, since, suspending the order of the Federal Commission for Securities of Russia of April 23, 2003 No. 03/5855, the court of first and appellate instances was not guided by the rules for applying measures to secure a claim, while the court should have referred to Part 2 of Art. 90 and part 1 of Art. 185 of the Arbitration Procedure Code of the Russian Federation, indicating the motives on which he came to his conclusions.
When considering this problem, it should be borne in mind that, for example, the tax authorities refer to the fact that no interim measures are taken in cases of invalidating non-normative legal acts.
Chapter 8 "Provisional Measures of the Arbitration Court" included in section I "General Provisions" APC of the Russian Federation, which is applied when considering all cases related to the jurisdiction of the arbitration court, at all stages of the arbitration process. Therefore, one cannot take into account the references of the tax authorities to the fact that if the rules on interim measures are not included in section II “Proceedings in the Arbitration Court of First Instance. Claim production» agro-industrial complex of the Russian Federation, then they cannot be applied when considering cases on contesting non-normative legal acts.
N. V. PAVLOVA, Assistant Judge of the Supreme Arbitration Court of the Russian Federation, employee of the Sector of Private International Law, Candidate of Law:
- Identification of the nature of the measure provided for in Part 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation, in our opinion, is directly related to understanding, firstly, the essence of the administrative procedure and its place in the legal mechanism for protecting the right, and secondly, the relationship between administrative and judicial methods of protection. Clarification of these aspects will help answer the question: how independent is the administrative procedure in influencing subjective rights and obligations?
IN modern world judicial control over the administrative procedure is implemented in two main forms: 1) preliminary (the administrative body applies to the court with a request for the application of preliminary measures) and 2) subsequent (the subject against which the administrative body applied coercive measures appeals against its act in court).
Accordingly, when challenging non-normative legal acts, decisions and actions (inaction) of state bodies, local governments, officials, subsequent judicial control is implemented. The measure provided for by Part 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation, an element of such subsequent judicial control over the administrative procedure. It allows you to protect a subjective right in cases where a quick judicial response is necessary (unreasonable write-off of funds, restriction of the right to engage in certain activities, for example, in the banking sector, causing significant damage to the applicant, etc.).
The need for such a procedural remedy is due to two reasons. First, by ensuring the equality of the parties in the process. If, within the framework of an administrative procedure, a state body, by virtue of its nature, has power, which puts the parties in an unequal position, characterized in the doctrine as a “power-subordination” relationship, then within the framework of a trial, the parties acquire an equal position, and relations become balanced.
An element of ensuring balance is the right of the “weak party” to block the act of the “strong” party in an expedited manner. This will allow timely equalization of relations without causing significant harm to the applicant. In other words, the “weak” (taxpayer, bank subject to banking supervision, etc.) has the opportunity to quickly respond to the actions of the “strong”.
Secondly, in addition to the need to balance relations, providing the “weak” party with the opportunity to apply for judicial protection in an expedited procedure is the realization of the right to access to justice. A broad interpretation of this right is given in the decisions of the European Court of Human Rights in Strasbourg, to whose jurisdiction the Russian Federation is also subject (5).
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(5) Judgment of the ECtHR dated 25.07.2002 in the case of Sovtransavto v. Ukraine.

Thus, the measure provided for by Part 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation, ensures the equality of the parties, the balance of public and private interests and at the same time acts as a guarantee of effective justice.
Obviously, therefore, similar measures are provided for by the legislation of many states of various legal traditions (France, Austria, the USA, the Netherlands, etc.).
However, like any procedural means, this measure cannot be unreasonable. Otherwise, the balance of interests of the parties will be violated. Legal grounds are needed to implement the measure. They are determined by the tasks that a particular measure performs. The study of international experience shows that preliminary measures of a procedural nature perform two tasks: 1) ensuring the execution of a future judgment; 2) blocking the relations of the parties in the existing situation, so that it does not worsen (preservation of the status quo) (6).
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(6) For more details, see: Pavlova NV Preliminary interim measures in international civil proceedings. Abstract of diss... cand. legal Sciences. M., 2002

Within the framework of the arbitration procedural legislation of the Russian Federation, such grounds are formulated in Part 2 of Art. 90 APC RF. The possibility of applying Chapter 8 of the Code when considering cases provided for in Chapter 24 is also indicated by the reference rule of Part 1 of Art. 197 APC RF. It says that this category of cases is considered according to the general rules of action proceedings with the features provided for in this chapter.
Therefore, to the extent not contrary to the nature of the administrative proceedings, the rules of Chapter 8 can be applied in this case. Accordingly, the rules on the validity of the applicant's application and the ruling on the application of the said measures are subject to application. So, as a justification for the application of these measures on the acts of the tax authorities, the applicant must provide strong evidence that the act of the tax authority was illegal or unreasonable, and may also refer to the accelerated procedure for debiting funds by the tax authorities, the difficult property situation of the taxpayer, the complex procedure for returning unreasonably recovered amounts. A different approach would mean moreover, a violation of the principle of certainty of justice, which is an element of the right to a court as understood by the Council of Europe.
Thus, any actions and decisions of administrative bodies, if desired by the second party, must be subject to judicial control, the effective implementation of which is facilitated by the application of the measure enshrined in Part 3 of Art. 199 APC RF. However, in order to avoid abuse of rights and maintain a balance of public and private interests, as well as the certainty of justice when issuing this measure, the grounds for its application must be taken into account by the court and justified by the party.
E. A. KHVOSTOV, Deputy Chairman of the Arbitration Court of the Vologda Region:
- We believe that the measure provided for in Part 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation, must be applied subject to the requirements of Chapter 8 of the Code.
Article 91 of the Arbitration Procedure Code of the Russian Federation, which lists the types of interim measures, does not provide for such a measure as suspension of the contested non-normative legal act or decision. However, the list in this article is not exhaustive, since par. Article 8 grants the right to the arbitration court to take other interim measures. At the same time, it is not stipulated whether other interim measures should be provided for by other chapters of the Arbitration Procedure Code of the Russian Federation or other federal laws, or the court may apply a measure that is not provided for by any regulatory legal act.
Any interim measures applied by the court are compulsory, establishing obligations for the persons participating in the case or other persons in the form of performing certain actions or prohibiting them from performing specific actions. Therefore, the statement of the person participating in the case on the adoption of interim measures should be considered only within the framework of procedural legislation. Providing in part 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation, one of the interim measures, the legislator did not regulate the procedure for its application. It is understood that when considering a petition, when issuing a ruling to suspend the contested act (decision), when executing this definition the provisions set out in Chapter 8 of the Code shall apply.
the main objective provisional measures - ensuring the execution of a judicial act. According to part 8 of Art. 201 of the Arbitration Procedure Code of the Russian Federation, the execution of a court decision on the invalidation of a non-normative legal act or decision is understood as the non-application of the invalidated act or decision. Therefore, if the contested act is applied before the court decision is made, then there will be nothing to execute.
The applicant, filing a claim for the invalidation of an act, a decision, pursues two goals: a) recognition of the disputed act as invalid, i.e. having no legal force from the moment of its publication, and b) its non-application. Since the act is not subject to application only from the moment the court decision is made, the applicant is interested in ensuring the enforcement of the future court decision. This is possible only by suspending the contested act or decision.
Based on part 2 of Art. 90 of the Arbitration Procedure Code of the Russian Federation, interim measures are allowed if their failure to take may make it difficult or impossible to enforce a judicial act. If the disputed act is applied, the execution of the court decision on recognizing it as invalid will be impossible. In this case, the applicant will be able to protect his violated rights only by presenting another demand - to restore the situation that existed before the violation of the right. But this is a different way of protection.
Therefore, if there is reason to believe that the disputed non-normative act can be applied by the defendant before the court makes a decision, the latter must suspend the contested act in the manner prescribed by Art. 93 APC RF.
Thus, in one case, a collective farm applied for annulment of a tax authority's decision, which at the same time filed a motion to suspend the disputed decision. The court granted the request of the collective farm, taking into account the fact that the tax authority issued demands to the taxpayer for the payment of taxes and penalties, and in accordance with these requirements, the period for voluntary payment of accrued payments expired at the time the applicant applied to the court. This testified to a real threat of collection by the tax authority of additionally assessed taxes in an indisputable manner. In addition, the issuance of collection orders for the collection of taxes in the amount of more than 2 million rubles. would block the settlement accounts of the collective farm and, as a result, its production activities.
It is impossible to refuse to satisfy the applicant's petition to suspend the decision of the tax authority to collect taxes, penalties and tax sanctions only on the grounds that the Tax Code of the Russian Federation provides for the procedure and terms for the return of overly written off taxes and penalties. The return of these amounts in connection with the invalidation of the decision of the tax authority is not covered by the scope of the execution of such a court decision.
The applicant in his petition must substantiate the reasons for suspending the contested act or decision, and the court is obliged to justify the grounds for adopting the relevant ruling. Otherwise, it will be a violation of the requirements, respectively, paragraph 5 of part 2 of Art. 92 and paragraph 6, part 1, art. 185 APC RF.
In part 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation, it is said that the arbitration court may suspend the contested act or decision. Nothing is said about the obligation of the court to apply this measure in all cases. The actions of the court in resolving this issue should be determined by the specific circumstances referred to by the applicant. The circumstances must testify to the defendant's intention to apply the act, decision and the consequences of such application.
If the legislator considered it necessary not to make the adoption of the specified interim measure dependent on specific circumstances, then the relevant norm would be stated in an imperative form: “When the applicant applies to the arbitration court, the action of the contested act, the decision is suspended.”
Judicial practice shows that some persons apply to the arbitration court with a request to invalidate an act and with a request to suspend its operation in order to either delay the execution or realize their assets at this time and make it impossible to enforce the challenged act.
In such cases the arbitral tribunal should not become an instrument for the execution of the unlawful intentions of the applicant. However, in practice, when considering an application no later than the next day after its receipt and without the participation of the parties, it is very difficult, and sometimes impossible, for the court to do this.
For example, one firm approached Arbitration court Vologda Oblast with several applications to invalidate the claims of the tax authority for the payment of taxes and decisions to suspend operations on the taxpayer's accounts. At the same time, the applicant requested that the challenged claims and decisions of the tax authority be suspended. The court granted the petition. On the basis of a court ruling on securing the applicant's claim, account transactions were opened, and the tax claims were suspended. Subsequently, the court, by its decision, refused to satisfy the company's claims to invalidate the claims and decisions of the tax authority. It followed from the court decision that the taxpayer did not dispute the decision of the tax authority on additional tax assessment, but appealed against the demands for payment of taxes and the decision to suspend operations on accounts due to formal, far-fetched circumstances.
In a similar case, the court refused to grant the motion to secure the claim.
It should be noted that the suspension of the disputed act should not apply to the defendant's actions to seize property for the purpose of future execution of his decision, because the seizure of property without its implementation is also an interim measure. It is not allowed to cancel the interim measure of another controlling body by an interim measure of the court. It is important in interim measures to consolidate the situation that existed before the dispute arose.
E. R. ALEKSANDROVA, Head of the Department of Judicial and Legal Work of the Legal Department of the Ministry of Taxation of Russia, Advisor to the Tax Service of the Russian Federation of the III rank, Candidate of Legal Sciences:
- I believe that consideration by arbitration courts of petitions to suspend the contested non-normative act, decisions should be carried out taking into account the provisions of Chapter 8 of the Arbitration Procedure Code of the Russian Federation. Satisfaction by the court of the specified petition is possible only if there are grounds enshrined in Part 2 of Art. 90 of the Code.
As for the need to state in the ruling the motivated grounds for taking interim measures, it seems that such rulings should contain a reference not only to the grounds for suspending the contested act, but also to the evidence presented by the applicant and confirming the existence of grounds for taking interim measures. Otherwise, infringement of the defendant's rights and violation of the principles of competitiveness and equality of the parties are inevitable.
The issuance of unmotivated rulings entails the impossibility of appealing against them by the defendant, or, on the contrary, appealing against rulings issued by the court if there are grounds, that is, unjustified expenses of the defendant.
The practice of courts applying interim measures in cases involving tax authorities shows that in most cases, courts issue rulings on securing a claim, either in the absence of any motivation, simply by referring to Art. 90 of the Arbitration Procedure Code of the Russian Federation, or on grounds not provided for by the Code at all.
For example, the courts suspend the disputed acts “in order to prevent property damage to the applicant”, without analyzing the issue of the significance of the damage, “in connection with possible adverse financial consequences for the applicant”, “in order to preserve the existing situation”, “in connection with the submission of an application for contesting the non-normative act of the tax authority”, “due to the fact that the indisputable write-off of the amounts of tax payments and penalties would essentially eliminate the subject of the dispute when challenging the decision of the tax authority”, “in order to reduce the negative consequences of the disputed act”, “since a violation of the normal activities of the enterprise".
None of the listed circumstances is named in the Arbitration Procedure Code of the Russian Federation as a basis for the application of interim measures.
Moreover, sometimes the court in the ruling establishes that the recovery will not cause significant damage to the applicant, and nevertheless suspends the execution of the non-normative act of the tax authority (for example, the Arbitration Court of the Kostroma Region).
In a number of cases, the courts suspend the contested decisions of the tax authorities directly in the ruling on the adoption statement of claim, without indicating any reasoning and without even making a reference to the filing by the applicant of a petition for interim measures.
There are situations of unreasonable application by the courts of preliminary interim measures. Thus, the Arbitration Court of the Republic of Bashkortostan issued a ruling in the case on the application of preliminary interim measures in the form of a suspension of collection at the request of the tax authority for the payment of taxes as of 30.01.2001. The ruling set a deadline for filing a statement of claim until 17.04.2003. That is, the court applied preliminary interim measures, although the taxpayer no longer had the right to apply to the court in connection with the expiration of the three-month period for applying to the court established by Art. 198 APC RF.
Here is another recent example of a ruling on the adoption of interim measures. The judge of the Moscow Arbitration Court suspended the disputed claim of the tax authority, since its execution could lead to material damage. At the same time, it was a question of challenging the requirement of the tax authority to submit documents for a counter audit. Compliance with such a requirement, of course, could not cause significant damage to the applicant, and failure to comply, on the contrary, would have led to the impossibility of conducting an audit of the activities of the largest taxpayer for 2000 and, consequently, to blocking the legitimate activities of the state body in exercising the functions assigned to it.
Some judges motivate the rulings on the adoption of interim measures by the fact that their non-application and the collection by the tax authority of the amounts of additionally assessed taxes and penalties will lead to difficulty in the execution of a judicial act, by which the decision of the inspection will be declared invalid. Difficulty in the execution of a judicial act is justified by reference to Part 2 of Art. 182 of the Arbitration Procedure Code of the Russian Federation, which contains a provision on the immediate execution of decisions of the arbitration court in cases of contesting non-normative acts, actions (inaction) of state authorities.
Thus, the courts justify the adoption of interim measures solely by reference to legal norms without taking into account the actual circumstances of the case. This can lead to the suspension of all contested acts of state bodies.
This position is erroneous, since there is no difficulty in enforcing a judicial act. In case of unreasonable collection of amounts of taxes and penalties by the tax authority, such amounts, after the court makes a decision to invalidate the act of the tax authority of a non-normative nature, will be returned to the taxpayer with the accrual of interest on them or set off against other payments in the manner established by tax legislation.
As for the adoption of interim measures in connection with the impossibility of executing a court decision, this circumstance cannot at all serve as a basis for suspending the contested act of a state body, since it is impossible to imagine a situation where the state would not have the funds to return the illegally collected amounts. Interim measures on such grounds can only be taken if a dispute has arisen between economic entities and the applicant has fears that the defendant will not have the funds necessary for the execution of the judicial act. The state, in all cases, has the funds necessary for the execution of a judicial act.
The issuance of unreasonable rulings on the adoption of interim measures leads to the fact that during the time during which the suspension of the act of the tax authority of a non-normative nature is in force, the taxpayer-applicant transfers the funds available to him to the accounts of third parties. As a result, a situation arises when, when a court makes a decision confirming the legitimacy of additional tax and penalty charges by the tax authority, the tax authority can no longer recover anything due to the lack of funds from the taxpayer.
The courts thus provoke taxpayers to commit illegal actions aimed at tax evasion. This, in turn, entails a violation of the interests of the state. Unfortunately, more and more often there is a situation where the mere application of interim measures (and even non-recognition as illegal of the actions of the tax authorities to carry out tax control measures) illegally exempts the taxpayer from checking his activities for a certain period,
L. F. LESNITSKAYA, Leading Researcher, Institute of Legislation and Comparative Law under the Government of the Russian Federation, Honored Lawyer of the Russian Federation, Ph.D. in Law:
- By its procedural nature, the suspension by an arbitration court of the disputed non-normative act is one of the interim measures provided for by Chapter 8 of the Arbitration Procedure Code of the Russian Federation. The specificity of this rule lies in the fact that in relation to cases arising from administrative legal relations, in particular those provided for by Chapter 24 of the Arbitration Procedure Code of the Russian Federation, not all interim measures established by Art. 91 of the Code, but only the suspension of the challenged act. The Arbitration Procedure Code of the Russian Federation does not establish any more features for this category of cases in the context of the issue under consideration,
The arbitration court, in accordance with Chapter 8 of the Code, may also take preliminary interim measures in the form of suspension of the non-normative act or decision until the interested person submits an application to challenge the non-normative act (decision).
The general requirements for the filing of an application for the adoption of interim measures by the arbitration court are contained in Chapter 8 of the Arbitration Procedure Code of the Russian Federation. These requirements also apply to cases arising from administrative legal relations (part 1 of article 197). Therefore, according to paragraph 5 of part 2 of Art. 92 of the Arbitration Procedure Code of the Russian Federation, in an application for suspension of the disputed act, the reasons for such an appeal to the arbitration court must be given and justified, indicating that the failure to take interim measures may violate the subjective rights and legitimate interests of the applicant, impose on him an obligation that prevents the normal implementation of entrepreneurial and other economic activity.
In addition, from par. 2 paragraph 13 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 09.12.2002 No. 11 “On some issues related to the entry into force of the Arbitration Procedure Code of the Russian Federation” it follows that arbitration courts should not take interim measures if the applicant has not substantiated the reasons for the appeal with specific circumstances confirming the need for interim measures, and did not provide evidence to support his arguments.
The arbitration court fixes its conclusion on the adoption of interim measures or on the refusal to do so in the ruling. Chapter 24 of the Arbitration Procedure Code of the Russian Federation does not establish any specific features for such definitions. Therefore, based on Part 1 of Art. 197 of the Arbitration Procedure Code of the Russian Federation should be applied general rules presented by Chapter 21 of the Code to the form and content of the court ruling. According to paragraph 6 of part 1 of Art. 185 agrarian and industrial complex of the Russian Federation the most important integral part definition is the motivational part, where the court gives the reasons for which he came to his conclusions, and gives justification for the decision.
The law does not establish any exceptions for the considered definitions. Moreover, even with regard to a protocol ruling, which is not a separate judicial act and for which a simplified procedure for its preparation is provided, the requirement for the court to bring the motives underlying its conclusions remains unchanged.
It should also be taken into account that the ruling issued on the basis of the results of consideration of the application of the interested parties for the adoption of interim measures can be appealed (part 7 of article 93 of the Arbitration Procedure Code of the Russian Federation), and the motives of the adopted judicial act are very important for the higher court in order to determine its legality and validity.
B. A. BALANDIN, Chairman of the Arbitration Court of the Nizhny Novgorod Region:
- Particular attention to the application of Part 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation, which establishes the right of the arbitration court to suspend the contested non-normative act or decision at the request of the applicant, due to the presence of different points of view regarding the nature of this measure.
Unlike interim measures structurally located in Section I of the Arbitration Procedure Code of the Russian Federation, such a measure as the suspension of a non-normative act, a decision is given in Section III of the Code, which establishes the features of administrative proceedings in an arbitration court. However, any specifics in the application of Part 3 of Art. 199 Chapter 24 Section 3 of the Code does not contain. Moreover, in the rules of administrative proceedings there are no instructions at all on the procedure for its application.
In this regard, questions arise: about the need to indicate in the petition for suspension of the contested non-normative act or decision the rationale for the reasons for such an appeal, and in the judicial act - to motivate the adoption or non-application of the said measure; on the term for consideration of the declared petition and the term of validity of the suspension of the act or decision; on the possibility of its cancellation and appeal against the judicial act issued following the consideration of the petition, etc. Section III of the Arbitration Procedure Code of the Russian Federation does not give answers to them.
The application of the norms of Chapter 8 of the Code to cases of suspension of the contested act or decision fills in such gaps. This is all the more justified due to the commonality of the objectives of taking interim measures and the measure provided for in Part 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation, and the law on procedural economy.
If there are some general initial rules, principles, provisions in resolving civil cases and administrative disputes, then there is no need to repeat them. You can simply apply the general rules in relation to both legal proceedings or a procedural institution. Similar rules are contained in Section I of the Arbitration Procedure Code of the Russian Federation, and in relation to measures aimed at ensuring the execution of the final judicial act and preventing significant damage to the applicant, in Chapter 8 of the Code.
For example, in the rulings of July 24, 2003 in case No. A43-8610 / 03-16-381 and of November 5, 2003 No. A43-13980 / 03-16-622 of the Arbitration Court of the Nizhny Novgorod Region, the measure under discussion was applied as an interim measure. In the first case, the determination was motivated by the fact that there was a real threat of debiting funds from the settlement accounts of the organization, and in the second case, by the fact that the recovery of the disputed amounts of taxes and penalties could significantly affect the financial position of the plaintiff.
It should be noted that the Constitutional Court of the Russian Federation (Decision No. 390-O dated 06.11.2003) considers the measure provided for by Part 3 of Art. 199 of the Arbitration Procedure Code of the Russian Federation, among interim measures in administrative proceedings carried out by arbitration courts, which are subject to the provisions of Chapter 8 of the Arbitration Procedure Code of the Russian Federation, in particular Art. 90, 93-98.

Carrying out arbitration representation in tax disputes, a lawyer inevitably faces challenging the decision of the inspection based on the results of on-site tax audits. We are talking about holding taxpayers accountable as a result of the recognition of the unjustified tax benefit and about the proposal to pay rather large arrears on VAT and income tax. In most cases (but not always), the tax authority applies interim measures, expressed in sending a request to the bank to suspend the organization's operations on current accounts. Considering that judicial practice in similar tax cases is valid and, when professionally contesting the decisions of the tax authority, is in favor of the taxpayer, irreparable harm is caused to the latter by the actual arrest for a period of 1 to 6 months of his bank accounts and, accordingly, partial or complete paralysis of his activities. The article you are reading is about methods of preventing possible harm economic interests of the organization in the event of a tax dispute.

Completion of field tax audit and decision making

The audit always ends with the consideration by the head of the inspection of the materials collected by the inspectors, the act drawn up and the taxpayer's objections, if any. Within 10 days, the official must make one of three possible decisions:

• about bringing a person to responsibility;
• on the refusal of such involvement;
• on carrying out additional tax control measures.

The decision comes into force within 10 days after its delivery to the representative of the organization. In case of appealing the decision on appeal, and without it, it is forbidden to apply to arbitration by law, it comes into force from the moment it is approved by the appellate instance - the Department of the Federal Tax Service.

Suspension of the disputed decision of the tax authority

At the same time, the tax code gives the fiscals the right to actually seize the property and funds of the taxpayer by a decision that has not entered into force. Such a norm is enshrined in Part 10 of Art. 101 of the Tax Code of the Russian Federation, according to which, the enforcement of the decision of the body is applied in cases where there are sufficient reason to believe that the enforcement of the decision may be difficult or impossible, in the absence of interim measures.

If in the case of provisional measures of the arbitration court, the interested person is obliged to prove the need to take appropriate measures, then the tax authority, issuing such a decision and actually paralyzing the activities of the enterprise, the legislator is deprived of the need to confirm the need and inevitability of security.

Collateral vs. Collateral

What should I do if the tax authority has arrested a taxpayer's account?

First you need to understand the legal algorithm of the actions of the tax authority, because. he does not have the right to suspend the movement of accounts, unless a ban on the alienation of the organization's property has been previously imposed (clause 2, part 10, article 101 of the Tax Code of the Russian Federation). The ban on the alienation of property and the suspension of operations on accounts cannot exceed the amount of the arrested funds the amount of arrears and fines (penalties). At the same time, the need for such actions of fiscals should be sufficiently justified.

The Arbitration Procedure Code entitles interested parties to apply to the court for the suspension of the disputed act (part 3, article 199 of the Arbitration Procedure Code of the Russian Federation). The suspension of the contested decision is carried out in accordance with the general rules of the Arbitration Code on enforcement of arbitration awards.

At this stage, it should be noted that in the case under consideration, we are not talking about the suspension of the original, main contested decision on tax liability. Despite the fact that the decision on the results of the visiting tax audit is the basis for making a decision to suspend operations on the taxpayer's accounts, these acts formally represent two independent documents. The arrest of the company's account itself arises only from the second decision, therefore, the application should be made within the framework of its appeal.

With the grounds for both appealing the decision of the inspectorate to arrest accounts and to suspend its operation, I believe everything is clear:

• its unfoundedness. In my practice, I have never seen a tax authority try to substantiate and prove such a need;
• non-compliance with the procedure for applying interim measures. Very rarely, in practice, the tax authority observes the legal procedure and, in advance, imposes a ban on the alienation of property.

Thus, in order to prevent the “freezing” of the accounts of a taxpayer in respect of which a decision was made to bring to tax liability, it is necessary to initiate two arbitration processes:

1. on appealing against the decision to bring to tax liability with the filing of a petition for suspension of its action;
2. on appealing against the actions of the tax authority to ensure the execution of its decision with the filing of a petition to suspend the decision to suspend operations on accounts.

Considering that petitions for suspension of the disputed decisions and actions are considered by the arbitration court within 1 day, this method of work makes it possible to avoid losses associated with a tax dispute. At the same time, the decision of the arbitration on the stated petition will directly depend on their sufficient legal justification and confirmation by appropriate evidence.

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