Appealing against well-grounded opinions in court: first precedents
Pepeliaev Group advises that the Moscow City Commercial ('Arbitration') Court has adopted resolutions on cases that involve invalidating well-grounded opinions.The Moscow City Commercial Court’s Resolutions in case No. 40-305119/23-75-1581 concerning JSC Gazpromneft-Noyabrskneftegaz dated 13 March 2024 and in case No. A40-306027/23-75-1590 concerning Gazpromneft-Yamal LLC.
Facts of the disputes
In both cases, participants in tax monitoring applied to court asking that a well-grounded opinion of the tax authority be invalidated.
The well-grounded opinions were issued further to the initiative of the Federal Tax Service’s Inter-District Inspectorate No. 2 for Major Taxpayers within the scope of tax monitoring for 2022. The tax authority's claim was that the base for mineral extraction tax had been understated in relation to flammable natural gas and NGLs.
Taxpayers disagreed with the well-grounded opinions, which had been considered by the Russian Federal Tax Service (the ‘Federal Tax Service’) within the scope of mutual agreement procedures. Following the consideration, the Federal Tax Service drew up a notification upholding the well-grounded opinion.
In both cases, the participants in tax monitoring filed appeals against the Federal Tax Service, together with their disagreements. However, they did not receive any answers.
Comment
If we talk about the process of obtaining a well-grounded opinion and subsequent mutual agreement procedure, the following should be stressed. The Russian Tax Code (the ‘Tax Code’) does not establish the deadline in two cases:
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for the well-grounded opinion to be drawn up after the taxpayer who received the notification of the grounds for issuing a well-grounded opinion submitted its clarifications within the established 15 business days (the only period for drawing up a well-grounded opinion is the whole period of monitoring, i.e. one year and nine months);
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for the higher tax authority to draw up a notification based on the outcome of the mutual agreement procedure to either amend or uphold the well-grounded opinion.
We have repeatedly stated that the lack of deadlines established for certain actions of tax authorities at either stage of a ‘well-grounded opinion being handled’ creates legal uncertainty and may result in an abuse on the part of tax authorities.
We see that in the disputes at hand the Federal Tax Service drew up notifications based on the outcome of mutual agreement procedures 30 business days after such procedures were carried out.
Having disagreed with the well-grounded opinions, the taxpayers applied to the court.
The court’s position
At the Moscow City Commercial Court, the same judge considered both lawsuits. This is obviously the reason for the legal arguments being the same in the grounds of the judgments.
So, the court dismissed the claims of the participants in tax monitoring based on the following arguments:
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a well-grounded opinion is not, in itself, a resolution to impose liability and is only intended for clarification,
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the clarifying nature of a well-grounded opinion follows from the Russian Constitutional Court’s Resolution No. 34-P dated 28 November 2017. In the Resolution, the Constitutional Court noted that “the Tax Code treats as circumstances that rule out the fault of a person who has committed a tax offence the compliance by the taxpayer with written clarifications of financial, tax and other competent authorities; or the compliance by the taxpayer with a well-grounded opinion...”;
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a well-grounded opinion does not have the features of a non-regulatory instrument which can be challenged under article 198 of the Russian Commercial Procedure Code because it does not create any legal consequences for taxpayers and, therefore, cannot violate their rights and legitimate interests;
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the taxpayer did not clarify in what particular way its rights and legitimate interests had been violated in the area of business, whether the obligations were imposed unlawfully on it and whether any other obstacles had been created for it in terms of conducting business activity.
What is interesting though is that despite the conclusion that it is impossible to challenge a well-grounded opinion, the court nevertheless considered the dispute on its merits. The legal position relating to the payment of mineral extraction tax is set out in the grounds for the judgment.
Comment
In our opinion, the court’s conclusion that a well-grounded opinion cannot be challenged, similarly to the conclusion that it does not have any features of a non-regulatory instrument, is questionable.
The features of a non-regulatory instrument have been set out in the Russian Supreme Court Plenum’s Resolution No. 21 “Regarding certain matters of how courts apply Chapter 22 of the Russian Code of Administrative Offence and Chapter 24 of the Russian Commercial Procedure Code” dated 28 June 2022.
Below, such features are listed, together with whether a well-grounded opinion corresponds to them.
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# |
Feature of a non-regulatory instrument |
A well-grounded opinion has / does not have the feature |
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1. |
It is issued by an authorised person |
+ The authorised person is the tax authority where the taxpayer is registered |
|
2. |
It is adopted according to the established form |
+ Starting from 18 April 2024, the Federal Tax Service’s Order No. ED-7-23/53@ dated 22 January 2024 (until then, the Federal Tax Service’s Order No. ED-7-23/477@ dated 11 May 2021) |
|
3. |
It contains an interpretation of legislation for a specific situation |
+ |
|
4. |
It is addressed to a specific person |
+ |
|
5. |
It is binding on the addressee and creates legal consequences for it. |
+ article 105.30(5) of the Tax Code |
|
6. |
It is designed to be applied only once |
+ |
The court judgments do not state which specific features of a non-regulatory instrument are not met by the well-grounded opinion.
Moreover, in its arguments the court stresses that a well-grounded opinion does not violate the taxpayer’s rights. Nonetheless, the ability to challenge a well-grounded opinion should not necessarily be contingent on the violation of rights.
Both the Constitutional Court (Ruling No. 286-O-O dated 19 April 2007) and the Supreme Court (clause 3 of the Plenum’s Resolution No. 21 dated 28 June 2022) express the position according to which non-regulatory instruments are to be challenged if they not only violate but also affect the rights of individuals and companies.
A well-grounded opinion affects the rights and legitimate interests of a taxpayer, which manifests itself in an imminent field tax audit if a person disagrees with it and does not follow it. In that case, the taxpayer will be subject to double control: tax monitoring and a field tax audit.
In our opinion, the unfavourable judgments of the first-instance court are fuelled by the lack of an explicit statement in the law that it is possible to challenge a well-grounded opinion in court.
In connection with the above, the situation may be resolved as follows:
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by state commercial courts of a higher level if participants in tax monitoring manage to convince the courts of their arguments;
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by the Constitutional Court when an application is considered for the official interpretation of the current regulation and how it is applied;
- by amending the Tax Code.
What to think about and what to do
In view of the first judgments whereby the taxpayer was disallowed from challenging well-grounded opinions, taxpayers should take a balanced approach to using such an instrument.
If a company plans on asking for a well-grounded opinion at its own initiative, it should go through its arguments in detail and formulate a solid legal position while preparing the request that it be issued with a well-grounded opinion.
A well-grounded opinion may undoubtedly help with creating legal certainty.
However, if a taxpayer disagrees with the tax authority’s approach it will inevitably face a field tax audit or business risks associated with withdrawal from a transaction which has been planned.
Help from your adviser
Pepeliaev Group’s specialists have extensive experience in protecting rights of taxpayers, including of participants in tax monitoring.
We are ready to assist companies with devising their legal position and drawing up a request for a well-grounded opinion, to provide support during a mutual agreement procedure and in a court dispute following non-compliance with a well-grounded opinion with which the taxpayer does not agree.
Translated by the Translation Department of Pepeliaev Group.