Letters from authorities: "for" or "against" business

Golubenko Konstantin Aleksandrovich ORCID: 0000-0002-5724-778X Master of Laws, International Lawyer of Nexign, JSC 195251, Russia, Sankt-Peterburg, g. Sankt-Peterurg, ul. Politekhnicheskaya, 29 k.a.golubenko@mail.ru Other publications by this author

Oleinik Dar'ya Slobodanovna Bachelor of Laws, Legal Assistant of "Senate" Consulting Group 125368, Russia, Gorod federal'nogo znacheniya, g. Moscow, per. Angelov, 9, kv. 7 Darias.o@yandex.ru

1. Problem statement

One of the important and fairly common means of legal regulation in the field of economic legal relations are letters from public authorities. If you look at the current statistics, the letters of the authorities are published in large quantities: only for 2020.  The Federal Antimonopoly Service of the Russian Federation (hereinafter – FAS) submitted 1400 clarifications (URL: https://fas.gov.ru/documents/687662 ). In 2021, the Federal Tax Service of the Russian Federation (hereinafter – the Federal Tax Service) published 1,242 clarifications in the form of letters, the Ministry of Finance of the Russian Federation (hereinafter – the Ministry of Finance of the Russian Federation) – more than 5,400 thousand (according to the search results in the information bank "Explanatory letters of authorities" of the Legal Reference system "ConsultantPlus": http://www.consultant.ru/cons /).

It is an undeniable fact that at present the regulation of issues related to the publication, application and withdrawal of letters is completely non-systemic, and their legal nature has not yet been determined in the current legislation. The lack of clear and transparent procedures for their application and adoption leads to the fact that the provisions contained in the letters may or even create legal uncertainty, often mislead law enforcement officers more, violate the constitutional prohibition on the use of unpublished normative legal acts affecting human rights, the hierarchy of sources of law and acts of application of law.

It should also be noted that the letters of the authorities can also be used as an element of administrative pressure on the business community: the explanations contained in them can impose new obligations on companies, interfere in their operational activities, "bypass" the procedures established by law for inspections of organizations and entrepreneurs, complicate the procedures for the exercise of rights

At the same time, there are also reverse situations where letters from authorities can improve the situation of business community participants: provide preferences, simplify certain legal procedures, clarify legal uncertainties.

The purpose of this study is to reveal the legal nature of the letters of executive authorities exerting pressure on the business sphere, as well as to show the practical impact of the activities of the authorities to clarify the legislation on the business community. At the end of the article, proposals will be formulated that will allow preserving explanations favorable to participants in economic relations in the legal system of Russia, as well as reducing the number of letters that create a negative impact on the business sphere.

2. The legal nature of the letters of the authorities

To solve this problem, it is impossible to bypass the question of the legal nature of letters from authorities, because understanding their essence will allow us to more accurately determine their place and role in the legal system of the Russian Federation and more correctly assess their impact on legal regulation (including the sphere of economic relations).

There are different points of view and approaches on this issue:

2.1. Letters of the authorities – acts of interpretation of the law (N. K. Tolcheev, M. V. Tarnovskaya). Such acts "... represent the official interpretation of certain legal provisions" that originate from the competent public authorities and which are mandatory for all subordinate bodies and officials. According to the author, through the law enforcement activities of subordinate bodies and officials, such acts acquire mandatory significance for all subjects of legal relations regulated by the explained prescription of the law. "Thus, such acts affect the rights and obligations of an indefinite circle of persons, acquiring a number of features inherent in normative legal acts, although they are not such and are only of an informational and explanatory nature" ^{[1, p. 38]}. Further, the author notes that "... the law does not establish the form, type, procedure for the adoption and rules for the enactment of acts with normative properties, and therefore there is no need to clarify these circumstances (within the framework of judicial norm control – author's note)" ^{[1, p. 38]}.

This definition of the letters of the authorities really reflects the position of the legislator and law enforcement officer after 2015, but is not correct. As early as in Ruling No. 58-O of 02.03.2006, the Constitutional Court of the Russian Federation indicated that unregistered and not published in accordance with the established procedure normative legal acts (hereinafter referred to as NPA) affecting the rights and legitimate interests of legal entities may be declared invalid by courts as part of the procedure for considering cases challenging the NPA (Bulletin of the Constitutional Court. 2006. ¹ 4).

Stating the fact that there is no procedure for their adoption, publication and entry into force does not mean that there should not be such a procedure in principle. Critically assessing the position of N.K. Tolcheev, there is also a contradiction in the part in which the author points out that the act may simultaneously contain "a number of signs of a normative legal act", but "not be such" and have an "informational and explanatory character", because even in the absence of "formal" signs of the NPA, it is from-due to its imperative nature, a priori cannot be of an informational and explanatory nature;

The difference between the position of M.V. Tarnovskaya and the position of N. K. Tolcheev lies in the procedure for verifying such acts. If N. K. Tolcheev considers it quite acceptable to check acts with normative properties within the framework of a separate procedure of judicial norm control, then M.V. Tarnovskaya considers it possible to check them within the framework of a judicial review of the actions of state bodies to implement a legal norm based on the meaning given to these actions by the act of interpretation ^[2].

We cannot agree with the opinion of M. V. Tarnovskaya due to the following: the applicant's interest in challenging the letter of the authority is to terminate its effect in whole or in part and exclude it from the mechanism of legal regulation. In cases of challenging decisions, actions (inaction) of public legal entities, the applicant's legitimate interest is to seek to confirm in court that the decision, action (inaction) is contrary to the law. Moreover, such a decision, action (inaction) is made once. If such a procedure is introduced, the risks of "blurring" the boundaries between the procedure for challenging the NPA and decisions, actions (inaction) of public legal entities significantly increase. In addition, the letters of the authorities in their meaning may well correspond to the explained provision of the law, but the decision itself, action (inaction) may be unlawful due to the specifics of the casual interpretation by a specific law enforcement officer.

2.2. Letters of the authorities – "quasi-normative acts" (A. N. Shmelev ^{[3, pp. 77-80]}, I. S. Selivanovsky ^[4]). In particular, A. N. Shmelev defines the legal nature of acts of state authorities issued in the form of letters by establishing the following criteria: "...1) by their nature, such acts are quasi-normative and are issued in order to clarify procedural aspects of the implementation of legal regulations, or in order to overcome collisions and gaps in regulatory material; 2) such acts are subsidiary in nature in relation to the adopted legislative regulation; 3) by their legal force, they must be exclusively advisory in nature, except in cases where the federal law does not provide otherwise" ^{[3, p. 81]}. At the same time, the author also notes that "... the possible adoption as a guide to action of the legal positions set out in letters and other interpretative acts by some subjects of law enforcement and their non-acceptance by others cannot ensure the stability of the rule of law and evolutionary legal development" ^{[3, p. 79]}.

Such qualification of the letters of the authorities and the selected criteria contain certain disadvantages:

1) in the legal doctrine, quasi-normativity is traditionally defined as "... a phenomenon describing a situation when a certain regulator of public relations, which by its nature is not a source of law, is assigned the function of regulating public relations, and the state recognizes for him (although it does not officially authorize) the possibility of regulating a particular public relationship" ^{[5, p. 105]}. Of course, letters from authorities can directly regulate any legal relationship (examples of such acts will be given below) and have a "quasi-normative character", but this is not at all an obligatory criterion: a letter from an authority may not have normative properties. As it was, for example, established by the Supreme Court of the Russian Federation in the AKPI19-774 case when analyzing the Letter of the Ministry of Finance of the Russian Federation dated December 29, 2017 No. 03-06-05-01/89037 "On the tax on mining" (URL: https://vsrf.ru/lk/practice/cases/10480440#10480440 ) and establishes when considering other cases;

2) if the letters of the authorities are of a "subsidiary nature" and are issued, among other things, in order to "overcome gaps in regulatory material," then it also seems strange to further assert that they should be "... exclusively advisory in nature."

The reference of the author of the dissertation to paragraph 5) of paragraph 1 of Article 32 of the Tax Code as an example of the mandatory nature of letters from authorities is controversial, because the same Ministry of Finance of Russia, whose letters are referred to in the above-mentioned subparagraph of the Tax Code, believes that they are still not mandatory either for citizens (organizations) or for the Federal Tax Service of Russia;

3) the purpose of the publication of such acts is not limited only to those listed by the author: this may also be a response to a specific request (e.g.: Letter of the Ministry of Finance of the Russian Federation dated 04/24/2019 No. 03-07-08/29927, URL: https://www.audit-it.ru/law/account/987533.html ), and generalization of law enforcement practice on certain categories of disputes (e.g., Letter from the Federal Tax Service dated 09.04.2020 NO. KV-4-14/6053@ URL: https://www.garant.ru/products/ipo/prime/doc/73773806 /).

   In essence, the letters of the authorities can be quasi-normative in nature when they contain normative properties. At the same time, the very fact of the presence of such properties (as well as the use of a letter from an authority in a specific legal situation) does not automatically destabilize the legal regulation of public relations (on the contrary, in some cases its use may benefit participants in legal relations). Of course, the established practice regarding the accounting of letters from the authorities of recent years in resolving specific legal situations can potentially create risks for their inadequate application, but this is rather a consequence of the lack of certain requirements for their content, procedure and expediency of publication;

2.3. Letters of authorities – interpretative normative legal acts (S. V. Nikitin). Analyzing the letters of the Federal Tax Service, S. V. Nikitin defines them as interpretative NPAs, since the letters contain norms explaining the provisions of tax legislation (interpretative legal norms). The author also notes that due to violations of the procedure for the adoption of the NPA (due to the lack of competence of the Federal Tax Service to adopt the NPA on tax legislation, violation of the form of the document, as well as due to failure to pass the procedure of state registration and official publication), such interpretative NPA are defective and have no legal force ^{[6, pp. 37-38]}.

Commenting on the introduction of the procedure for challenging acts with regulatory properties in the CAS, S. V. Nikitin notes: "... the authors of the bill seem to have made an attempt to "discover" a new phenomenon, some unknown phenomenon in the theory of law - and not a normative, and not an individual act" ^{[6, p. 44]}. It should be noted here that S. V. Nikitin's article was published during the period when Federal Law No. 18-FZ of 15.02.2016 had not yet been adopted, in connection with which the professor uses the term "bill".

3. What do the authorities themselves think?

There is no unity of understanding of the essence of letters in the authorities themselves. With a certain degree of conditionality , it is possible to distinguish the following approaches:

3.1. Legislative approach. At the legislative level, there is no definition of the concept of "letter of authority". At the same time, the procedural legislation contains an indication of the possibility and procedure for challenging acts containing clarifications of legislation and having regulatory properties (see Article 195 of the Arbitration Procedural Code of the Russian Federation No. 95-FZ of 24.07.2002 and Article 217.1 of the Code of Administrative Procedure of the Russian Federation No. 21-FZ of 08.03.2015, hereinafter referred to as the CAS of the Russian Federation). Taking into account the teleological interpretation, it can be concluded that the legislator equates the letters of the authorities to these acts if they have normative properties (see sub-note: Explanatory Note to Bill No. 892355-6. URL: https://sozd.duma.gov.ru/bill/892355-6 ).

3.2. The approach of the executive authorities. Within the framework of this approach, it is possible to consider the positions of the Ministry of Finance of Russia, the Federal Tax Service of Russia and the FAS of Russia. Of course, other authorities can also provide explanations that may affect business. The positions of these bodies are taken as a basis, because their influence on the subjects of commercial relations is significant and these bodies have expressed themselves in detail about the status of their letters.

Thus, the Ministry of Finance of the Russian Federation considers its letters not binding on subjects of (tax) legal relations due to the following reasons: they do not contain legal norms, are not normative legal acts regardless of who is given an explanation; they are informative and explanatory in nature on the application of tax legislation and do not prevent subjects of tax law from being guided by other positions. The letters of the Ministry of Finance should be perceived along with the work of other specialists in this field. At the same time, these clarifications are also applied to letters in accordance with subclause 1 (5) of Article 32 of the Tax Code of the Russian Federation No. 146-FZ dated 31.07.1998, sent to the Federal Tax Service of Russia ^[7].

Features of the position of the Federal Tax Service on the application of letters from authorities. The position of the Federal Tax Service is somewhat different from the point of view of the Ministry of Finance:

1) The Ministry of Finance and the Federal Tax Service agree that letters as a result of responses to applicants' appeals do not have legal force. At the same time, the Federal Tax Service additionally indicated that the tax authorities should appeal against judicial acts based on such letters from the Ministry of Finance. The above-mentioned position of the Federal Tax Service can be considered extremely formalistic and even "harmful", since this not only violates the principle of subordination, but also creates risks of appealing judicial acts in order to delay the judicial process and complicate the execution of a judicial act adopted not in favor of the tax authority.;

2) The Ministry of Finance actually refers its letters to acts of interpretation of legislation and indicates the non-binding nature of their application by both the Federal Tax Service and other legal entities, while the Federal Tax Service considers such letters of the Ministry of Finance mandatory;

3) The Federal Tax Service notes that its letters based on the position of the Ministry of Finance are mandatory for tax authorities ^[8].

The FAS of Russia takes an even more categorical position than the Federal Tax Service:

1) the purpose of the publication of letters is the formation of a unified law enforcement antimonopoly practice;

2) the letters provide explanations of the legislation, which are extremely "useful". Additionally, in response to the appeal to the authors of the article, the FAS noted that their letters "... make it possible to promote uniformity in the application of legal norms, create certainty and predictability of decisions of control bodies, and ensure long-term planning of business activities." The FAS kept silent about the possible negative effect of the clarifications (Letter of the FAS of Russia dated 03/19/2021 No. SP/20738/21 // Archive of authors);

3) the letters contain the official position of the FAS, which is mandatory for all its territorial bodies;

4) letters are sent to the address of economic entities, territorial bodies of the Federal Antimonopoly Service and published on https://fas.gov.ru / for an indefinite circle of persons ^[9].

It is noteworthy that in court disputes about challenging letters from the FAS, the latter, as a rule, refers to the absence of a letter of the nature of a regulatory act establishing mandatory rules of conduct. As it was, for example, in cases on invalidation of individual Letters of the FAS dated 03.02.2016 No. AD/6345/16, as well as on invalidation of the letter of the FAS dated 31.05.2011 No. IA/16692. In both cases, the Supreme Court of the Russian Federation recognized these letters of the FAS as acts with normative properties (see sub-note: The Decision of the Supreme Court of the Russian Federation of 21.10.2019 in case no. AKPI19-662. URL: http://vsrf.ru/stor_pdf.php?id=1825544 ; Decision of the Supreme Court of the Russian Federation of 16.08.2017 in case no. AKPI17-441. URL: http://vsrf.ru/stor_pdf.php?id ). Both Decisions "withstood" based on the results of their appeal.

Explanations on the application of the law by a higher authority to a lower authority are mandatory for the guidance in the work of all lower authorities and are de facto applied by the latter. Within the framework of such application, FAS letters can (and currently do) influence an indefinite circle of persons as a result of solving specific situations by lower-level bodies (the effect of "indirect influence" arises).

If the FAS declares the possibility of indirect influence of its explanations, then the indication of the absence of signs of NPA in specific cases is extremely inconsistent. In this regard, in cases of contesting letters of the FAS of Russia, when the latter claims that his letters have no normative properties, the courts should be guided by the principle of venire contra factum proprium (Lat. "the principle of prohibiting contradictory behavior") in relation to the FAS and to evaluate its arguments more critically.

3.3. The approach of the highest judicial authorities:

3.3.1. The Constitutional Court of the Russian Federation, in its Resolution No. 6-P dated 31.03.2015, indicated that the key feature of letters from authorities for the possibility of challenging is the presence of "normative properties" in them: the provision of a general regulatory impact on public relations, the existence of legal regulations for an indefinite circle of persons, the frequency of application (Rossiyskaya Gazeta. ¹ 77. 13.04.2015);

3.3.2. In Resolution No. 50 of December 25, 2018, the Plenum of the Supreme Court of the Russian Federation supplemented the list of essential features of letters with normative properties: publication by power subjects (talking about state authorities, local self-government, other bodies and organizations and their officials with public authority. Other entities (citizens, organizations and individual entrepreneurs) will be further designated as "non-governmental entities"), the presence in the letters of the results of the interpretation of the norms of law (Rossiyskaya Gazeta. No. 6. 15.01.2019).

The above definitions significantly detract from the "formal-legal" properties of such acts (publication in a certain form, the existence of the authority to issue a power subject, the passage of the registration and publication procedure, compliance with legal acts of greater legal force), which does not seem entirely correct. The letters of the authorities often pursue the narrowly focused interests of the State, while there is no proper procedure for their verification and evaluation at the adoption stage, as a result of which they de facto appear in the legal system without any obstacles.

Of course, some diminution of the formal and legal properties of letters from authorities is partly due to the fact that there are no general rules for their acceptance and application in relation to letters. But the latter does not mean that there should be no such rules at all: as long as letters can have a "general regulatory effect" on subjects of law, they must have formal legal properties. As E. M. Shulman very correctly noted (recognized in Russia as a foreign media agent), "It is worse when this regulation falls one floor below, one floor below, and another floor below and, as a result, falls into the hands of an unknown, so to speak, "rule-maker", in the depths of one or another FOIV (federal the executive authority), which will never appear in the "white light" at all and we will not know what is happening there at all" ^[10]. On the contrary, the presence of formal legal properties in letters will allow them to be more clearly distinguished from other types of legal acts, as well as somehow legitimize them and increase the level of clarity of legal regulation as an integral component of the principle of legal certainty. The only question is that these formal legal properties should correspond to the specifics of the legal nature of letters. With this in mind, it is necessary to critically evaluate the position of those authors who believe, in the context of studying letters from authorities, that "Focusing on the form ... will not increase the level of legality, but will become the basis for reproaches of formalism" ^{[11, p. 186]}.

Moreover, the property of "repeated use" is not well defined by the highest judicial instances. In the legal doctrine, the term "repeated application" is defined as the inexhaustibility of a norm by its application ^[12]. If interpreted literally, then the letter of the authority should be applied not only to one person. Contrary to the latter thesis, the court, when challenging the letter, must also find out whether the rights and interests of the applicant were violated in connection with its application (paragraph 1) of Part 3 of Article 217.1 of the CAS of the Russian Federation), that is, we are talking about a single application of the norm in a particular case.

In this regard, the Plenum of the Supreme Court of the Russian Federation should clarify that the sign of "repeated use" is assumed, that is, the establishment of the fact of application in one case automatically implies the possibility of its application in another.

Having dealt with the essence of the letters of the authorities and their connection with acts with normative properties, it is now necessary to reveal how they can positively or negatively affect the economic sphere.

4. Definition of the concept of "letter of authority"

As a result of the analysis of the approaches of the authorities and scientists, we believe it is possible to form our own point of view regarding the legal nature of the letters of the authorities. At their core, the letters of the authorities tend to such a source of law as a legal act ^{[6, pp. 35-36]}, since they may contain generally binding rules of conduct that are repeatedly applied (which makes them close in nature to the NPA), which are applied to individual subjects of law (this brings them closer to non-normative acts). In addition, the letters of the authorities can be applied both indirectly in relation to an indefinite circle of persons, and within the framework of a specific legal situation.

The above material allows us to conclude that the letters of the authorities at the present stage of the development of the legal system of Russia are a kind of legal acts with the following properties:

1) are adopted by law enforcement agencies in the absence of a regulated legal procedure for their adoption;

2) contain explanations of legislation and (or) rules of conduct that have an indirect effect on an indefinite circle of persons and (or) are applied within the framework of specific legal situations.

5. Letters of authorities "against" business

Let's start the disclosure with negative examples of the influence of government letters on business:

5.1. According to the rules of tax legislation, tax authorities have the right to inspect the taxpayer's territories and premises during the audit (Article 92 of the Tax Code of the Russian Federation). In one of its letters, the Federal Tax Service introduced the right of tax authorities to inspect the territories and premises of counterparties of the taxpayer being audited. Then the Federal Tax Service went even further and allowed to inspect the premises and territory of third parties involved in the transaction, and in cases where such premises and territories are not used by the taxpayer being audited to extract income (profit) and are not related to the maintenance of taxable objects. The latter significantly expanded the powers of the tax authorities and contradicted paragraph 1 of Article 92 of the Tax Code, since it allows inspection of the territories and premises only of the taxpayer being audited (Appeal ruling of the Appellate Board of the Supreme Court of the Russian Federation dated 27.08.2019 in case No. APL19-333. URL: https://vsrf.ru/lk/practice/cases/10418071#10418071 ).

The negative consequences are obvious: the contractors of the taxpayer being audited are forced to participate in such inspections, bear the costs of such inspections (delegate their representatives, taking them away from their main work, participate in negotiations with tax authorities, suspend production, etc.).

5.2. In the Letter of the Federal Tax Service of Russia dated 10.07.2018, No. ED-4-15/13247@, the criteria of taxpayers for whom tax control is necessary were introduced (in fact, the signs of one-day firms are formulated), instructions for the cancellation of value-added tax and corporate income tax returns are given, the rules for carrying out individual tax measures are described. control (inspection of premises, questioning of managers, requesting documents from banks, certification centers, examination of documents).

This Letter caused an extremely negative reaction from the professional community, including because a mechanism for revoking (canceling) the above declarations, not provided for by law, was introduced ^[13], and the participation of a lawyer in the interrogation of the head of the organization was equated with the sign of a "one-day company" ^[14].

Of course, the qualification of a lawyer's participation in the interrogation of an organization as a sign of a one-day company actually discredits the right to protection in all non-prohibited ways, and a simplified step-by-step mechanism for canceling declarations allows tax authorities to block company accounts exclusively at their own discretion. It can be added here that such signs as the issuance of powers of attorney to representatives who do not live in the subject of Russia where the organization operates, as well as the presence of a large number of accounts are far-fetched.

Subsequently, this Letter from the Federal Tax Service was withdrawn at the suggestion of the Ministry of Justice of Russia ^{[15, 16]}, which received a positive reaction from the professional community.

It is noteworthy that in this case, the letter of the Federal Tax Service ceased to be valid not as a result of judicial norm control, but at the suggestion of the Ministry of Justice of Russia. Of course, such an approach is more operational. At the same time, questions about whether the Ministry of Justice has the right to influence the tax authorities in this way, as well as to invade the jurisdiction of the court, remain open. Of course, it would be extremely interesting to see a judicial act if the Federal Tax Service did not agree with the position of the Ministry of Justice and decided to challenge the Ministry of Justice's letter of recall. Probably, the justification of the right to present such a "proposal-demand" to the Ministry of Justice should have been derived from the authority to verify the activities of federal executive bodies for the selection of regulatory legal acts subject to state registration (it was the presence of legal norms that the Ministry of Justice indicated in its letter to the Federal Tax Service).

5.3. In one of its letters, Rostechnadzor introduced a rule that unscheduled inspections of citizens and legal entities, regardless of the grounds, are carried out by control (supervision) bodies without coordination with the prosecutor's office (Decision of the Supreme Court of the Russian Federation of 20.08.2018 in case no. AKPI18-629. URL: https://vsrf.ru/lk/practice/cases/9993289#9993289 ). This contradicted the requirements of Parts 5 and 12 of Article 10 of Federal Law No. 294-FZ of December 26, 2008 "On the Protection of the Rights of Legal Entities and Individual Entrepreneurs in the Exercise of State control (supervision) and municipal control" on the need to obtain the approval of the Prosecutor's Office (Collection of Legislation of the Russian Federation. 2008. No. 52 (part 1). Article 6249).

The approval of the prosecutor's office for inspection by state bodies was introduced in order to reduce administrative interference in business activities. The explanations of Rostechnadzor directly contradict the meaning that was put by the legislator when introducing such a procedure. In fact, the prosecutor's office in such inspections acts as a kind of "filter" that allows you to assess the real and justified need for such a check. The ability to "bypass" such a check allows you to check a business for any reason an unlimited number of times, including without reasonable necessity. The latter significantly increases administrative pressure on entrepreneurs and creates additional barriers to the development of a comfortable and accessible business environment.

As we can see, the presence of regulatory properties in letters can create an extremely negative effect and pursue the narrowly focused interests of specific state bodies and officials: violate fundamental rights and freedoms, impose additional duties, create opportunities to "bypass" the special procedures established by law for checking organizations and entrepreneurs, etc.

6.      Letters of the authorities "for" business.

There are also cases when letters from authorities contribute to the greater realization or even protection of the rights of subjects of economic relations:

6.1.             Until the end of 2018, Russian buyers of services provided by foreign organizations in electronic form were recognized as tax agents and had to independently calculate, withhold and pay value added tax (hereinafter – VAT). Starting from 01.01.2019, foreign organizations providing services in electronic form and participating in settlements directly with buyers of services are recognized as tax agents and are required to register in Russia, calculate and pay VAT independently (Article 174.2 of the Tax Code of the Russian Federation as amended by Federal Law No. 335-FZ of 27.11.2017).

In connection with these amendments, the Russian Ministry of Finance indicated that the duties for calculating and paying VAT, as well as registration, are assigned to a foreign organization. If the buyer performs the function of a tax agent, then he does not have the right to make a deduction (literal interpretation) ^[17].

The Federal Tax Service of Russia explained the amendments differently: if the buyer performs the function of a tax agent himself, then it is impossible to demand repeated payment from a foreign organization, and the buyer can also make a tax deduction ^[18].

The position of the Federal Tax Service is more fair, since it takes into account the balance of interests of the state and the taxpayer. It is not always "convenient" and economically profitable for foreign organizations to register for tax in a particular state (especially if: the provision of services is not regular; the list of consumers is limited; income from activities in Russia is insignificant).

Despite the fact that the explanations of the Federal Tax Service have regulatory properties (because they create rules of conduct for an indefinite circle of persons that are not directly provided for by the Tax Code), their presence has a "positive" effect for foreign organizations, since it reduces their tax and administrative costs, as well as for Russian consumers of services who can apply a tax deduction. Moreover, in this case, a positive effect also arises for the tax authorities, since the goal of tax administration is achieved in the form of tax revenues to the Russian budget without significant administrative and financial costs.

6.2. Carrying out tax control measures. Thus, the Federal Tax Service clarified that upon the fact of additional inspections within the framework of tax control, new violations cannot be indicated, since such inspections are carried out only to verify previously established violations ^[19].

The positive effect of the above clarifications is that they actually reduce the risks of abuse of authority by the tax authorities, that is, tax inspectors cannot conduct additional inspections and record violations that were not reflected during the main audit, which subsequently reduces the administrative burden on business.

6.3. In a number of cases, the explanations of the authorities may help to avoid additional penalties for late or incomplete payment of taxes, as well as fines for committing a tax offense. This is possible, for example, when an organization was guided by the explanations of financial authorities in the framework of its activities, but as a result was subjected to measures of public influence by these bodies (paragraph 8 of Article 75 and paragraph 3) of paragraph 1 of Article 111 of the Tax Code of the Russian Federation).

Such a possibility of excluding the responsibility of business entities is aimed at maintaining the principle of legal certainty, as well as preventing the contradictory (abuse of rights) application of the current legislation by financial authorities.

7. Preservation of "useful" letters of authorities in the legal system of Russia

Government letters can indeed have a diametrically opposite effect on business. Therefore, the need to find answers to questions becomes extremely important:

1) how is it possible to preserve the "useful" explanations of the authorities in the mechanism of legal regulation and make the latter more effective. At the same time, by effective legal regulation we understand the relationship between the result of legal regulation and the goal facing it ^{[20, p. 506]};

2) how to really reduce the number of letters issued by the authorities with a deliberately negative effect;

3) how to eliminate contradictions between letters.

The answer to these questions may be the regulation of the publication of letters from authorities at the legislative level. As part of this procedure, it is possible to set:

1) general rules of registration, a limited list of grounds for their adoption. Such a basis may be the unification of law enforcement practice on the most controversial issues of the application of legal norms. In addition, such unification will make it possible to repeatedly apply letters when resolving specific legal situations.

2) the need to substantiate the expediency of their adoption, that is, the relevant body must disclose the practical benefits of publishing a letter for non-governmental subjects of legal relations. It is better to justify the expediency in the text of the letter so that its purpose is obvious to anyone who turns to its content;

3) establishing the priority of letters that are more favorable for non-governmental subjects of legal relations, in case the letters contradict each other. In one of the above examples, we were talking about a letter from the Ministry of Finance, which literally interpreted the new tax rules on Google. In this regard, the problem arises that the letters of the authorities come into conflict with each other and, if they have regulatory properties, create uncertainty in legal regulation.

On the one hand, the explanations of the Ministry of Finance are mandatory for the Federal Tax Service (by virtue of Clause 5) of clause 1 of Article 32 of the Tax Code of the Russian Federation) and from the point of view of subordination, the Letter of the Federal Tax Service dated 04/24/2019 No. SD-4-3/7937 should not be applied. On the other hand, if the above Letter of the Federal Tax Service is evaluated according to the criterion of expediency (the presence of practical benefits for a non-governmental entity), the letter of the Federal Tax Service dated 04/24/2019 No. SD-4-3/7937 should be preserved and used in the mechanism of legal regulation in the future.

Regulation of this issue at the legislative level will reduce the likelihood of such situations. At the same time, such regulation should be introduced as follows: when issuing a letter, the authority itself declares in its letter how it can be useful for non-governmental entities, that is, how much its publication is appropriate. In the future, if it is necessary to check the expediency, it can be carried out as part of the judicial norm control procedure. Another option is to give individual authorities the authority to suspend or cancel the validity of letters (more on this below).

4) a "limited" list of officials who have the right to sign them. Ideally, such persons should include the heads of the relevant authorities and their deputies, since in this case the letter will be approved not only within the specific unit in which it was created.

5) determine the procedure for cancellation (revocation), substitution of letters from authorities, including a list of entities that have the right to raise the issue of their cancellation (revocation). As such, the bodies of the Ministry of Justice of Russia or the Prosecutor's Office can act.

An example when the Ministry of Justice of Russia used such an opportunity was given earlier. The Russian legal system is also aware of cases when the prosecutor's office sought to terminate the letters of the authorities. For example, in the Chelyabinsk region at the end of 2020, based on the submission of the prosecutor of the region, a Letter from the Ministry of Health of the Chelyabinsk Region dated 06.10.2020 No. 01/0907 was withdrawn, which indicated the expediency of transferring calls from the ambulance service to polyclinics, including on the grounds of "fainting" and "suffocating" ^{[21, 22]}.

The latter aspect contains two positive effects: the authorities will be forced to take a more responsible approach to the formation of their explanations due to the presence of external control, as well as contribute to the development of pre-trial forms of legal protection and reduce the burden not only on the judicial system, but also on the executive authorities. It will also help to reduce the administrative burden on the business, providing more opportunities and space for development.

Ideally, of course, all these amendments should be reflected in a special law on legal acts, the need for the adoption of which is long overdue in Russia. At the same time, recent attempts to adopt a law of this type at the federal level have not been successful ^{[23, 24]}. Therefore, at the current stage, the Decree of the Government of the Russian Federation No. 1009 of 13.08.1997 (Rossiyskaya Gazeta, No. 161, 21.08.1997) may become the initial NPA for amendments. This is due to the fact that the Rules within the framework of this Resolution are initially focused on federal executive authorities. Of course, the Rules will require a number of adjustments (in terms of the name, the exclusion of an explicit ban on the publication of NPAs in the form of letters, etc.) and yet this is the best option that will not require drastic changes in Russian legislation.

8. Conclusion

Letters from authorities are an integral element of the mechanism of legal regulation in modern Russia, which can have a significant impact on the economic sphere, as well as serve as the basis for the formation of judicial practice. Taking into account the designated role and influence of government letters on the business community, the time has long come when issues related to the procedure for their publication should receive proper legal regulation.

At the same time, the measures we have proposed are not the only right way to solve the problem. Of course, it is necessary to improve the procedures for judicial regulatory control over letters from authorities. At the same time, it is already possible to propose the following: in the procedural legislation, it is necessary to introduce a check of the expediency of the letter of the authority adopted and applied in a particular case with the burden of proof on the person who adopted and (or) applied such an act.

Notes:

1) the position of the authors is of a private nature and is not related to the position of the organizations in which the authors work.

2) all references to the provisions of Russian legislation and Internet resources are given as of 07/18/2022.