Last Bow of the RF SAC

Starting to speak about the Resolutions of the Plenum of the RF Supreme Arbitration Court, they should be treated with a special respect, as these are the last Resolutions of the RF SAC. That is not the last in time, but the last in general. From 7 August 2014 the RF SAC ceased to exist. The functions for resolution of economic disputes, earlier falling under the jurisdiction of the RF SAC, are now carried out by the Judicial Panel for Economic Disputes of the RF SC, consisting of 30 judges. The Deputy Chairman of the Supreme Court of the Russian Federation – the chairman of the Judicial Panel for Economic Disputes is Sviridenko Oleg Mikhailovitch (vested with powers by the Resolution of the Federation Council of the Federal Assembly of the Russian Federation from 18 June 2014 No. 230-SF).

We are not going to assess this event, because such a milestone requires understanding and at least a separate article. We’ll explain only the main redistributions of powers.

First of all, we shall understand that the supreme court of arbitration justice – the FR SAC is wound up only. Federal arbitration courts of districts (cassation instance), appellate arbitration courts and arbitration courts of the RF subjects so far are kept.

Cases of challenging regulatory legal acts are removed out of the jurisdiction of the arbitration courts. Chapter 23 of the RF APC now governs consideration of the relevant cases by the Court for Intellectual Property Rights only.

Cases of challenging the cadastral value are removed out of the jurisdiction of the arbitration courts. These disputes are referred to the courts of general jurisdiction.

The features of cassation and supervisory proceedings in arbitration cases in the RF Supreme Court (hereinafter – the RF SC) are defined. Cassation appeals against the effective decisions of arbitration courts, the Court for Intellectual Property Rights will be considered by the Judicial Panel of the RF SC. The deadline for filing complaint will make up, under the common rule, 2 months from the date of entry into force of the last contested decision.

The grounds for cancellation or change of decisions challenged in cassation proceedings will be significant violations of the rules of substantive law and (or) procedural law that affected the outcome of the case and the failure to address them makes impossible the restoration and protection of the violated rights, freedoms and legitimate interests in the field of entrepreneurial and other economic activity as well as protection of legally protected public interests.

The RF APC is completed with a new chapter 36.1 “Proceedings for review of judicial acts under supervision procedure”. Supervisory complaints will be considered by the Presidium of the RF SC. Pursuant to part 3 of art. 308.1 only:

• The effective decisions of the Judicial Panel of the RF SC delivered by the court of first instance (if they were not subject to appellate review);
• The rulings of the Appellate Panel of the RF SC awarded following the consideration of appeals against the decision of the Judicial Panel of the RF SC, delivered by the court of first instance;
• The rulings of the Judicial Panel of the RF SC, delivered in the cassation proceedings.

will be contested under the supervision procedure.

The deadline for submitting supervisory complaints will be 3 months from the date of entry into force of the relevant decisions. Supervisory complaints will be preliminary examined the judge of the RF SC, who will decide on the need to transfer them to the Presidium of the RF SC.

The law entitled the Chairman of the RF SC and his/her deputy to submit to the Presidium of the RF SC the application to ​​review rulings under the supervisory procedure based on the complaint of the persons concerned.

Such application may be submitted in order to eliminate fundamental violations of the rules of law, which affected the legality of challenged rulings and to deprive participants to legal relationships in dispute of the possibility to exercise the rights guaranteed by the RF APC or significantly limited them.

The resolutions of the Presidium of the RF SC will come into force from the date of adoption and are not subject to appeal.

The resolutions of the Plenum of the RF SAC remain in force until the adoption of the relevant decisions by the Plenum of the RF SC. Under the newly amended RF APC the arbitration courts in the reasoning of their decisions can refer to the resolutions of the Plenum and Presidium of the RF SC, as well as to the effective resolutions of the Plenum and Presidium of the RF SAC.

Despite the global, if not to say catastrophic changes in the life of arbitration courts and the actual subordination of arbitration courts to the RF Supreme Court, the RF Supreme Arbitration Court did not “folded its wings” in anticipation of the inevitable, but in the past year 2014 (of course until 07 August 2014) was marked by a number of relevant and demanded explanations.

The explanations of the Plenum of the RF SAC only officially are called explanations; in fact these have long been mandatory rules for application of legislation. And de jure they are mandatory only for arbitration courts, while de facto for all potential parties to the trial.

Unfortunately, the legal mentality of Russian entrepreneurs does not allow solving the disputes at the level of lawyers and attorneys. As a rule, the final point in the dispute is always put by the arbitration court. In such conditions the Resolution of the Plenum of the RF SAC achieves leading positions. No one will clear up what really the law-maker meant, adopting as a law one or another rule of conduct, because the dispute will have to be resolved by the arbitration court rather than by the State Duma. Therewith the law seems a kind of tool, and the explanations of the Plenum of the RF SAC an instruction for use of the tool.

Therefore, knowledge of how to the Supreme Arbitration Court interprets the regulatory acts in a given area may predetermine the behaviour of economic entities in their activity.

In 2014, the Plenum of the Supreme Arbitration Court adopted 18 Resolutions on a wide variety of areas of law. In our review we’ll focus on the most universal changes somehow affecting most Russian entities.

Resolution of the Plenum of the RF SAC from 30.05.2014 No. 33 “On some issues raised by the arbitration courts during the resolution of VAT-related cases”

Despite the name, most issues explained by this Regulation no longer raise questions in arbitration courts. The judicial community itself developed unwritten rules addressing such issues; the Resolution No. 33 only summarized them and confirmed their correctness. Another part of the legal positions of the RF SAC does not address controversial matters of the relevant area at all. Let’s consider the most relevant positions:

Point 9 of the Resolution of the Plenum covers the approaches to the understanding of the civil and legal institutions for VAT purposes. Although the civil and legal meaning of concepts such as goods, works, services, formally coincides with the definition given by the RF Tax Code, in fact, the same RF Tax Code classifies, for example, in the category of services the transactions, which the civil law does not refer to service. For example, rent, lending, transfer and provision of patents, licenses, trademarks, copyrights, from the point of view of the civil law are not services, while the RF Tax Code treats them as services. The importance of this issue stems from the fact that, in accordance with subp.  1 p. art. 146 of the RF TC sales of goods (works, services) in the Russian Federation are subject to VAT. The content of the concepts of “goods”, “works”, “services”, “sale of goods (works, services)” are covered by p. 3, 4, 5, art. 38 and p. 1, art. 39 of the RF TC.

In this Resolution the RF SAC made clear that for the purposes of resolving VAT-related disputes goods, works and services are determined in accordance with the rules of chapter 21 of the RF Tax Code. Thus, for example, art. 148 of the RF TC comes from a wider concept of services, including rent and other civil and legal obligations.

Hence it must be concluded that the application of the concept of “service” to the transactions related to use of intellectual property items, means that for the purposes of chapter 21 of the RF TC they are not considered a transfer of rights, therefore, they are not subject to the rules of art. 155 of the RF TC.

Point 12 of the Resolution of the Plenum covers some matters relating to transactions of transfer of goods (works, services) without charging a separate fee for this.

1. For example, the transfer of the taxpayer to the counterparty of goods (works, services) as addition to the main goods (souvenirs, gifts, bonuses). In accordance with the position of the RF SAC, such transaction is subject to tax in accordance with subp. 1 p. 1 art. 146 of the R FTC as transfer of goods (performance of works, provision of services) free of charge, unless the taxpayer proves that the price of the main goods includes the cost of the additionally transferred goods (works, services) and the VAT calculated on the main transaction covers the transfer of additional goods (works, services) as well.

This means that in the cases of complex obligations and, for example, supply of additional goods (works, services) directly connected with the supply of the main goods (works, services), taxpayers should be prepared to present economically justified and documented calculations confirming that the cost of the additionally transferred goods (works, services) is included in the cost of the main sold goods (works, services) and is paid as a result of payment of the latter.

2. It is also explained that the distribution of promotional materials is not subject to VAT if it is not part of the taxpayer’s activity of market promotion of goods (works, services) produced and (or) sold by it in order to increase sales and if such promotional materials do not meet the characteristics of goods, that is property to be sold as it is. In accordance with the position of the RF SAC, this approach is applicable even if the “promotional material” is worth more than 100 rubles.

This is a very common situation in disputes with the tax service. Usually courts tend to treat transfers of goods (works, services) for promotional purposes as “transfers for own needs”, and since the costs related to material values transferred are ​​accounted by taxpayers for the profits tax purpose as costs of advertising, they are classified as transactions not subject to VAT, respectively, and the cost criterion (no more than 100 rubles) for exemption from VAT is absorbed¹.

The explanation of the Plenum of the SAC introduces for this approach an additional criterion – the goods transferred shall not be sold “as they are”, that is, they shall not pursue the purpose of satisfying receivers by consumer properties of such goods.

3. In addition, point 12 clarifies that transactions of free of charge provision of taxpayer to its employees of the guarantees and compensations in kind as provided by labor legislation are not subject to tax (for example, in connection with harmful and (or) dangerous working conditions).

Based on the explanations of the SAC we can conclude that the guarantees and compensations provided for by labor legislation, rather than by local acts (for example, the collective agreement) are not subject to VAT.

Point 16 of the Resolution of the Plenum covers the procedure for determining the tax base for VAT purposes in the case of sale of goods (works, services) through an intermediary. According to the SAC, the taxpayer is required to determine the tax base under the common rules of art. 167 of the RF TC and in the case where it sales goods (works, services) with participation of attorney (commission agent, agent). Therefore, the latter is obliged to ensure the timely receipt from the attorney (commission agent, agent) of documented data on making transactions of shipment (transfer) of goods (works, services) and their payment.

Previously there were different opinions on this matter. For a long time it was believed that if the principal has no information about the flow of revenues of the commission agent, the principal is unable to timely account the revenues to the tax base, thus the RF TC is not violated².

Subsequently the position that VAT is assessed by the principal on the date of shipment of the goods by the commission agent to the buyer was dominated.³

The Resolution of the RF SAC provides a definitive answer and recommends the courts, for the purposes of determining the VAT tax base, to consider shipment (receipt of payment) by intermediary as shipment (receipt of payment) made by the principal.

Point 17 of the Resolution of the Plenum provided a new approach to the consequences of the failure to specify the amount of VAT in the calculation and primary accounting documents, invoices separately.

Earlier there was an opinion that if VAT is not included in the calculation of the price of goods (works, services), it must be recovered regardless of whether the arrangement has an appropriate condition (i.e., in excess of the price)⁴.

The Resolution of the Plenum directs courts to the following presumption: in the absence of direct indications the price agreed by the parties is supposed to include VAT, which shall be determined by calculation.

An important explanation is given in point 27 of the Resolution of the Plenum. It clarifies that if the amount of tax deductions exceeds the amount of VAT calculated on taxable transactions, tax deductions can be reflected by the taxpayer in the tax return for any of the tax periods of the respective three-year term. In this case, the rule of three-year term for filling tax return applies in the case of inclusion of tax deductions in the amended tax return as well.

According to the Plenum the taxpayer can choose whether to specify the deductions in the tax return for any of the tax periods of the respective three-year term or to file an amended tax return.

However, it remains unclear – when this three-year term expires: after the end of the last tax period within the term or after the deadline of submission of tax return – the 20th day of the month following the last tax period. Different approaches were formed in the judicial practice to address this problem:

1. The first position – the three-year term determines the tax periods in which deductions may be reported. If the deduction is reported in the last period of the three-year term and the tax return for this period is filed in a timely manner – not later than the 20th day of the following month, the term is not missed⁵.
2. The second position – the three-year term is not extended by 20 days provided for the submission of tax returns⁶.

To avoid disputable situations it seems to be safe to avoid reporting deductions in the last period of the three-year term provided for by p. 2, art. 173 of the RF TC, but to report then in earlier periods.

Resolution of the Plenum of the RF SAC from 06.06.2014 N 35 “On the consequences of termination of contract”

Termination of contract unilaterally or by agreement between the parties is a rather common situation and businesses are extremely concerned by its consequences. The consequences of termination of contracts stipulated by the RF Civil Code and the previously existing approaches of courts to this issue were not systematic and contradicted each other.

In the light of the provisions of the Resolution it is recommended to pay special attention to drafting agreements on termination of contract.

Find below some of the most important legal positions contained in the Resolution.

• In view of the limitations related to the freedom of contract and abuse of the right laid down by the Resolution of the Plenum of the RF SAC from 14.03.2014 N 16 “On freedom of contract and its limits” the parties may agree in the contract on the consequences of termination, other than those provided for by law. Therefore, all the consequences of termination of contracts stipulated by law shall be treated as default rules, the parties may agree on other consequences.
• Upon termination of a contract, including a framework one, the obligation of the debtor to make in the future actions that are the subject matter thereof (for example, shipment of goods under supply contract, performance of works under contract agreement, granting funds under contract of credit) terminates. This view contradicts another position of the RF SAC according to which in the event of invalidity or non-conclusion of a framework contract, contracts are treated as individual ones.
• The Plenum confirmed the correctness of the restrictive interpretation of the rule on the prohibition to demand the return of the items executed under the terminated contract. This rule applies under the common rule, if at the time of termination of the contract it is performed properly or the relevant parts of performed counter obligations are equivalent (for example, the amount of the advance paid corresponds to the contractual cost of services rendered). In the case of non-equivalence of counter representations the party is entitled to demand the return of the items transferred to it to the extent that this violates the equivalence of counter obligations agreed by the parties.
• The termination of the loan agreement, credit agreement, contract for storage of goods with depersonalization does not affect the procedure of performance of the obligation to return the property. All conditions of the terminated contract on interests, forfeit penalty and obligations that ensure the fulfilment of the obligation to return the property, remain in force until the complete performance of this obligation.
• The Regulation clarifies the rules of making the entry of termination of the registered contract in the state register. If the contract is terminated by the court, the entry shall be made under the application of the relevant party, if upon execution of the right to the unilateral unmotivated refusal such entry shall be made under the application of the terminating party with provision of evidence of notification of the counterparty, if the right to termination is related to the actions of one of the parties (for example, a violation), or other circumstances to be checked, the applications of both parties shall be submitted to the registration authority, and in case of refusal of one of the parties the entry shall be made under the court decision related to the claim for invalidation of the contract.

In our opinion, this Resolution can have a very significant impact on the practice of resolving disputes of termination of contracts. This is especially concern the disputes of return of property to another party previously transferred to one of the parties to the terminated contract.

Resolution of the Plenum of the RF SAC from 16.05.2014 N 28 “On some issues related to challenging major transactions and interested party transactions”

Approval and challenging of major transactions and interested party transactions are very common phenomenon in economic life. The Resolution contains useful explanations concerning the issues of making and approving major transactions and interested party transactions, as well as problems of their challenge.

First of all the determination of the fact in proof in cases of challenging major transactions and interested party transactions seems quite useful, that is what circumstances are subject to proof by a person filing to the court a claim for invalidation of the extraordinary transaction on the grounds that it is made in violation of the procedure of approval.

The person claiming by court the invalidation of the transaction on the grounds that it is made in violation of the procedure of approval of major transactions or interested party transactions must prove the following:

1. Availability of grounds on which the transaction is accordingly recognized a major transaction or an interested party transaction, as well as fact of violation of the procedure for approval of the relevant transaction.
2. Violation by the transaction of the rights or legally protected interests of the company or its members (shareholders), i.e., the fact that this transaction resulted in or may bring losses to the company or its member filing the relevant claim, or the occurrence of other adverse consequences for them.

In this case, as for the losses it is sufficient for the claimant to justify the fact of their infliction, proving the exact amount of losses is not required.

According to the Plenum the absence of violation of interests of the company and its members (shareholders) may be evidenced, in particular, by the following:

1. The items received by the company under the transaction were equivalent to alienation of property.
2. The performance of transaction was a way to prevent even greater losses to the company.
3. Although the transaction of the company was itself a loss, it was part of mutually related transactions united by a common business purpose, as a result of which the company had to obtain a benefit.

According to the Plenum transactions made in the course of ordinary business, and, therefore, which do not require approval may be transactions of acquisition by the company of raw materials and materials required for the implementation of industrial and economic activities, sale of finished products, obtaining loans to pay for current transactions (ex. for purchase of bulk goods for their subsequent retail).

However the mere fact of performance of transaction within the kind of activity referred to in the unified state register of legal entities or the articles of association as a basic one for such entity, or the fact that the company holds a license entitling it to carry out such activity is not grounds for qualification thereof as a transaction made in the course of ordinary business.

The Plenum expressed an interesting idea of the possibility of qualifying an employment contract as a major transaction or interested party transaction.

According to the Plenum the possibility of qualifying an employment contract as a major transaction may be evidenced by its provisions on (single or repeated) payment of cash to employee in case of dismissal and (or) other circumstances or salary for the term of the employment contract, the amount of which makes up 25 percent and more of the book value of the company’s assets. In the case of an indefinite employment contract one year is account for settlement period for the purposes of assessing the transaction as a major one, taking into account the annual nature of the report of the company’s management bodies on its activity to be submitted to the members.

The Plenum also explained that, major transactions and interested party transactions can be considered settlement agreements concluded during trial, as well as transactions of debt forgiveness, agreements providing for the company’s obligation to transfer the property for temporary possession and (or) use.

Resolution of the Plenum of the RF SAC from 14.03.2014 N 16 “On freedom of contract and its limits”

The principle of freedom of contract is one of the fundamental principles of the Russian civil law. However, given its declarative nature, the application in practice faces a variety of interpretations of both expanding and limiting nature. The adopted Resolution provides very important explanations of the application of this principle in the legal practice.

First of all, the courts are recommended to interpret the rules determining the rights and obligations of the parties to the contract, based on its merits and objectives of the legislative regulation, that is, the court takes into account not only the literal meaning of the words and phrases contained in it, but also the objectives the law-maker pursued while laying down this rule. The meaning of this thesis is that based on the objectives of the law-maker it could be well concluded that even an imperative rule allows a restrictive or expansive interpretation. For example, if the imperative is aimed at protecting the weaker party to the contract, the law-maker’s objectives are providing more extensive rights than those provided for by the rule itself, but it improves the position of the weaker party.

An example of such an imperative is the prohibition given in part 4 art. 29 of the Federal Law of 02.12.1990 “On Banks and Banking Activity” of unilateral change by a credit institution of the procedure for determining the interests under the credit agreement entered into with a borrower-citizen. However, this prohibition should be interpreted restrictively, that is, as a prohibition of only such unilateral change of the specified procedure, as a result of which the interest rate of a credit increases, but does not preclude such a unilateral change of the procedure under which the interest rate on the credit decreases.

Point 4 of the Resolution emphasizes the existence of the presumption of discretionary of the rule, if it does not contain an explicit prohibition of the parties’ agreement of a contract provision other than those provided in it, and there are no criteria of imperativeness. It is also noted that in this case the difference between the provisions of the contract and the content of this rule itself can not serve as a basis for the invalidation of this contract or some of its provisions.

For example, art. 475 of the Civil Code, laying down the consequences of transfer to the buyer of inadequate quality goods, does not exclude the right of the parties to provide for by their agreement other effects of the said violation, including to determine in a different way the criteria of materiality of defects of goods or supplement the rights provided by this article to the buyer. The provisions of art. 782 of the Civil Code, granting to each of the parties to the service contract the right to unmotivated unilateral refusal to perform the contract and providing for unequal distribution between the parties of the adverse effects of termination of the contract, do not exclude the possibility for the parties to the contract to agree on another procedure for determining the consequences of repudiation of the contract. The rules of art. 410 of the Civil Code, laying down the preconditions of termination of the obligation by a unilateral set-off statement, do not mean a prohibition of the contract of the contracting parties to terminate the non-uniform or undue obligations, etc.

The position of the Plenum, according to which the court may apply to the contract the provisions of p. 2, art. 428 of the Civil Code on contracts of adhesion, modifying or terminating the respective contract at the request of the contracting party (p. 9 of the Resolution), if such party in concluding the contract was put in a position making difficult the harmonization of a different contents of individual terms of the contract (i.e., turned out to be a weak party to the contract) and the draft contract contained conditions that were obviously burdensome for this party and significantly breaching the balance of interests of the parties (unfair contract terms) is an interesting and new concept.

For a long time the Russian courts, contrary to the world practice, did not attach much importance to the pre-contractual circumstances. The Plenum recommended, in considering disputes on protection against unfair contract terms, to assess the disputed terms jointly with all the terms of the contract and taking into account all the circumstances of the case. Thus, in particular, the court is obliged to determine the actual ratio of negotiating powers of the parties and to find out whether the adhesion to the proposed conditions was of necessity, and also to take into account the level of professionalism of the parties in the relevant field, competition in the relevant market, whether the adhering party has a real possibility to negotiate or conclude a similar contract with third parties on other conditions, etc.

The recommendation, in the interpretation by the court of the conditions, to carry out such an interpretation in favor of the counterparty of the party, which drafted the contract or proposed the wording of the relevant term, is of a particularly importance.

At the same time, until proven otherwise, it is assumed that this party was a person that is a professional in the relevant field, which requires special knowledge (for example, bank under a credit contract, lessor under lease contract, insurer under insurance contract, etc.).

This proposal appears to be fair and it is hoped that it will have a positive impact on the Russian judicial practice. But we should not forget about the more common principle of contractual interpretation, as in many cases neither of the parties can not to be a professional in the relevant field, and the terms of the contract can be developed jointly by the parties. In these cases, to interpret the unclear term of the contract, in the case of exhaustion of the methods referred to in art. 431 of the Civil Code, the principle of interpretation of unclear term in favor of the creditor should apply.

In conclusion, we would like to note the obvious usefulness and relevance of the last explanations of the Plenum of the RF SAC; time will show what the explanations of the RF Supreme Court will be.

1. Resolution of the FAC of Moscow district from 23 March 2012 in the case N А40-47825/11-116-132, from 25 June 2010 in the case N А40-104444/09-127-696.
2. Resolution of the NWD SAC from 13.12.2006 in the case N Ф04-8319/2006(29331-А27-42.
3. Resolution of the North West District SAC from 18.04.2012 in the case N А56-28193/2011, от 14.03.2013 in the case N А56-7502/2012.
4. The grounds for this approach were p. 15 of the information letter of the RF SAC from 24.01.2000 N 51 and the Resolution of the RF SAC Presidium from 22.09.2009 N 5451/09.
5. Resolution of MD SAC from 12.02.2013 in the case N А40-86961/11-107-371, also used in the Resolution of SAC of the West Siberian District from 29.01.2013 in the case N А81-896/2012 .
6. Resolutions of the SAC of Moscow District N А40-104264/13-116-256; SAC of Moscow District N А40-32428/12, N А40-22199/11-75-95, N А40-143325/12-140-1056.

Leonid Kunin

Ex-Senior Lawyer

Tax and Legal Practice

Korpus Prava (Russia)