Tax and customs monitoring: common trends in legal regulation

Agamagomedova Saniyat ORCID: 0000-0002-8265-2971 Senior Research Fellow, Institute of State and Law of the Russian Academy of Sciences 119019, Russia, Moscow, Znamenka str., 10 saniyat_aga@mail.ru Other publications by this author

Kobzar'-Frolova Margarita Nikolaevna Doctor of Law Chief Researcher; Sector of Administrative Law and Administrative Process; Institute of State and Law of the Russian Academy of Sciences 10 Znamenka str., Moscow, 119019, Russia adminlaw@igpran.ru

Introduction

The system of state control and supervision is currently undergoing a new stage of reform. Moreover, it is associated not only with the upcoming guillotine 2.0 and a further reduction in the regulatory and supervisory impact on business. An important aspect of the ongoing reform of control and supervisory activities is the formation of common principles and priorities in the implementation of control and supervisory activities in various spheres of public relations. Thus, the Concept of Improving Control (Supervisory) Activities until 2026, adopted at the end of 2023, developed in accordance with subparagraph "e" of paragraph 1 of the list of instructions of the President of the Russian Federation dated July 20, 2022 No. Pr-1269, is aimed at forming a unified approach to further improvement of control (supervisory) activities in the Russian Federation (order Government of the Russian Federation No. 3745-r dated 12/21/2023 (ed. dated 06/17/2024) "On approval of the Concept of improving control (supervisory) activities until 2026" // "Assembly of Legislation of the Russian Federation", 01.01.2024, No. 1 (Part IV), Article 285). Such a unified approach is based on common instrumental denominators of control and supervisory influence. The point is that the forms and methods of state control and supervision in different areas of regulation should be correlated with each other, have a consistent understanding in relation to various types of control and supervisory activities. Moreover, this applies not only to control and supervision in the so-called centralized sphere of regulation of control and supervisory relations, but also in other types of state control and supervision excluded from their scope of regulation by Federal Law No. 248-FZ dated 07/31/2020 "On State Control (Supervision) and Municipal Control in the Russian Federation". Such special types of control and supervision traditionally include tax and customs control. We propose an attempt to substantiate the current trends in the legal regulation of these types of controls using the example of such tools as tax and customs monitoring.

General and distinctive features of tax and customs monitoring

Tax monitoring, introduced by the domestic legislator in 2014 (Federal Law No. 348-FZ dated 04.11.2014 "On Amendments to Part One of the Tax Code of the Russian Federation" // Rossiyskaya Gazeta, No. 254, 07.11.2014), was actively studied by scientists ^[1-3]. Moreover, it was positioned in financial and legal science not only as a form of tax control (which is directly fixed in section V.2. The Tax Code of the Russian Federation), but also as a factor in the effectiveness of tax administration, as a tool for tax digitalization, as a way to ensure economic security in general, etc.

Customs monitoring has been significantly less studied ^[4-5], which is quite natural given its later implementation (from 2022), and so far only in an experimental format. It is positioned by scientists within the framework of the customs control system and refers to measures that ensure customs control, which, along with forms of control, represent tools for customs control ^[5]. In addition, tax and customs monitoring are quite reasonably combined within the framework of the concept of monitoring in the financial sector ^[6]. At the same time, this is not at all a recognition of the exclusively financial nature of customs control, which has both financial and non-financial components. Customs monitoring as a financial control tool just reflects the fiscal (financial) aspect of the control and supervisory activities of customs authorities. This fact makes it possible to combine these tools of various types of control through fiscal goals.

The following should be highlighted as common features of tax and customs monitoring.

Firstly, such control and supervisory tools are generated by the development of digitalization, conditioned by it, could not be implemented without an appropriate level of development of information and communication technologies. Such relatively new forms of control and supervisory relations become possible only at a certain stage of information interaction, interaction transformed by "digit".

Secondly, tax and customs monitoring are based on the voluntary nature of non-governmental entities in determining such a variant of control and supervisory influence. These tools are based on the initiative of the controlled person, which indicates certain elements of dispositivity in traditionally imperative control and supervisory relations. This allows us to talk about the incorporation of certain properties of private law regulation in the regulation of the types of state control and supervisory activities under consideration ^{[7, pp. 34-35]}.

Thirdly, a common feature of tax and customs monitoring is the narrowness of their application in the general system of control and supervision in the relevant areas of legal regulation. When introducing these control tools, the legislator initially limited the list of controlled entities subject to monitoring, and we observe a clear tendency to expand this list.

Thus, in relation to tax monitoring, the list of such persons (as a rule, the largest taxpayers) was supplemented with such categories as: organizations that have received the status of a resident of the territory of advanced development; organizations that are members of an industrial cluster; organizations that are residents of a special economic zone and others. In this regard, experts note a tendency to reduce the requirements for taxpayers wishing to switch to tax monitoring, which allowed to increase the number of such controlled entities by almost a third ^{[8, p. 6]}.

Initially, only two categories of persons fell under the scope of customs monitoring: authorized economic operators and representatives of industrial clusters (Decree of the Government of the Russian Federation dated 02/16/2023 No. 240 "On conducting an experiment on monitoring by Customs authorities of information available to them and received from persons participating in this experiment from commodity accounting systems" (together with the "Regulations on conducting an experiment on monitoring by customs authorities of information available to them and received from persons participating in this experiment from accounting systems of goods") // "Collection of Legislation of the Russian Federation", 02/27/2023, No. 9, Article 1476), which was an extremely small proportion of the number of all persons controlled by customs authorities. In June 2024, the Government of the Russian Federation extended the experiment on customs monitoring for a year and expanded the structure of its possible participants. From July 21, 2024, legal entities performing customs operations and classified as low-risk will be able to join it (Decree of the Government of the Russian Federation dated 06/19/2024 No. 820 "On Amendments to the Decree of the Government of the Russian Federation dated February 16, 2023 No. 240" // "Assembly of Legislation of the Russian Federation", 06/24/2024, No. 26, v. 3660).

Fourth, tax and customs monitoring is based on transparency of the parties to the control and supervisory interaction, on their information openness, accessibility of information serving the implementation of control objectives for interested parties.

Fifth, the tools under consideration contain certain elements of self-control of non-governmental subjects, the role of which is growing significantly in modern conditions ^[9-10].

Sixth, the regulation of tax and customs monitoring indicates a shift from regulatory to individual monitoring. When implementing the control tools under consideration, it is essential to conclude individual acts defining the format of information interaction between an administrative body and a controlled entity (rules of information interaction, etc.).

Seventh, the tools in question can be considered as an alternative to traditional forms of control, at the same time they reflect a reduction in administrative impact on controlled persons. It is no coincidence that scientists associate such control tools with the focus on forming partnerships between the parties to the control and supervisory legal relationship ^{[8, p. 5]}.

As distinctive properties of the considered tools, we highlight the following.

Firstly, customs monitoring is provided in an experimental mode, limited in time. Unlike tax monitoring, which is currently (the provisions have been in effect since January 1, 2015) fixed in the Tax Code of the Russian Federation as an independent form of tax control, the concept of customs monitoring is absent in the current regulatory framework of the EAEU and the Russian Federation, and, accordingly, its place in the customs control system is not indicated.

Secondly, with regard to customs monitoring, we can talk about a limited nature not only in relation to the subjects of control, but also to its subject. Such a customs control tool is limited to information about goods only imported into the Russian Federation (that is, export operations are excluded from the subject of customs monitoring).

Current trends in legal regulation of tax and customs monitoring

A comparative analysis of tax and customs monitoring allows us to talk about the following problems of their scientific positioning and theoretical and legal justification.

Firstly, monitoring is quite naturally positioned (both in the regulatory framework and in the research field) as an instrument of the appropriate type of control. At the same time, the place of a certain type of monitoring in the regulation of a particular type of state control differs significantly. Thus, tax monitoring is clearly defined by the legislator as a new form of tax control. At the same time, according to the provisions of part 1 of Article 96 of the Federal Law "On State Control (Supervision) and Municipal Control in the Russian Federation", monitoring refers to the regime of remote state control (supervision), one of the special regimes of state control (supervision). The legal status of customs monitoring at the regulatory level, its specific place in the customs control system is currently not defined.

Secondly, the monitoring mechanism (at least in the tax and customs spheres) is very close to the public services provided by the relevant administrative authorities. Proximity to services is determined, in our opinion, by a sign of voluntary participation in tax and customs monitoring mechanisms. In addition, the properties of the service (or service) activity are seen by us in obtaining relevant conclusions by controlled persons (for example, a motivated tax opinion). It seems that the highlighted element of dispositivity in the control and supervisory interaction within the framework of monitoring significantly distinguishes the mechanism under consideration from traditional tools of control and supervisory influence.

Thirdly, in the development of the above-mentioned aspects of the scientific understanding of tax and customs monitoring, the possibility of theoretical and legal positioning of monitoring as a kind of steering should be highlighted in a special way.

Some authors express the opinion that tax steering acts as a certain (next) stage in the development of tax monitoring ^[8].

A comparative analysis of tax rulingin domestic and foreign legislation allows us to conclude that the domestic legislator provides an opportunity to obtain a motivated tax opinion exclusively within the framework of an agreement on tax monitoring, while foreign experience characterizes a different approach, in which a wider range of persons entitled to seek clarification from the tax authority have such a right. ^[8].

Fourth, monitoring can reasonably be considered as a tool to achieve a balance of private and public interests in tax and customs relations ^[11], as one of the promising ways of pre-trial dispute resolution (as evidenced, first of all, by the international experience of tax monitoring ^[12]). Moreover, scientists in some cases compare tax monitoring with mediation in tax relations ^[13].

Control and supervisory legal relations, which traditionally act as the most conflictual and imperative sphere of managerial interaction, acquire the properties of horizontal regulation, dispositivity, and individual (as much as possible point-based) regulation within the framework of monitoring. The latter aspect should in no way contradict the certainty of regulation in the financial sphere and the principle of equality in tax, customs and other relations.

Fifth, monitoring in the areas we are considering can quite naturally be positioned as a stage of control and supervisory interaction, more precisely, a stage preceding traditional control. Thus, according to some authors, tax monitoring is a preventive measure in the system of formation of tax discipline, as well as a means of preliminary control (a means preceding a specific form of control) ^{[13, p. 245]}.

We have identified far from all options for the theoretical and legal justification of monitoring in the financial sector, the varieties of which are tax and customs monitoring. Less common positions in science include approaches that consider, for example, currency monitoring as a system for collecting and processing socially significant financial information ^[14], a set of organizational and economic measures aimed at ensuring financial security ^[15]. More established approaches are those in which monitoring is investigated as an independent form of state financial control ^[16].

The diversity of existing positions reflects, in our opinion, the complexity of the concept under consideration, the combination of properties of various types of activities in its orientation and content. From this point of view, we can talk about blurring the boundaries between control and supervisory activities, activities for the provision of public services, and other forms of interaction between public authorities and non-governmental entities.

Conclusion

The analysis made it possible to identify the features of monitoring used in the tax and customs spheres, which in fact form new approaches to modern tools of state control and supervision in the financial sector and, accordingly, new trends in the legal regulation of interaction in the field of public relations under consideration.

Monitoring in the financial sector, of which tax and customs monitoring are varieties, is a relatively new control format, it is not by chance that it is often called horizontal, which, in our opinion, reflects a fundamentally new approach to control and supervisory interaction. Current trends in the legal regulation of control and supervisory activities are clearly reflected in new instruments of control and supervisory influence, which can include monitoring. Tax and customs monitoring as a type of the latter can be considered not only within the framework of a system of control and supervision in a certain area of legal regulation, but also in the context of activities for the provision of public services, a type of steering, one of the methods of pre-trial dispute settlement.

The analysis of the legal regulation of tax and customs monitoring allows us to identify current trends in the regulation of state control and supervision in general, among which: the development of elements of dispositivity, a shift in regulatory emphasis from regulatory to individual legal, the development of selectivity of control and supervisory influence based on further differentiation of controlled entities, strengthening the properties of trust in the managed sphere, strengthening institutions self-control and self-regulation and others.