Bratko T.D. —
Economic justification for taxation and tax fairness: a new look at an old problem
// Taxes and Taxation. – 2023. – ¹ 6.
– P. 8 - 20.
DOI: 10.7256/2454-065X.2023.6.69607
URL: https://en.e-notabene.ru/ttmag/article_69607.html
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Abstract: A search for criteria of economically justified and fair taxation has been going on for a long time within studies in philosophy of law, constitutional law and tax law. Often such studies are one-sided and incomplete. The criteria developed by researchers, as well as research-based definition of “economic justification for taxation,” are unsatisfactory and unsuitable for practical use. Without understanding economic justification for taxation, it is impossible to give answers to many practical questions, in particular: is a tax economically justified or not? The purpose of this article is to formulate a new universal, practically applicable definition of “economic justification for taxation,” reflecting modern Russian and foreign ideas about fiscal social contract and constitutional principles of taxation.
To achieve this goal, the author resorts to a comparative analysis of two incompatible principles of fair taxation: the equivalence (benefit) principle, arising from “individualistic” Anglo-Saxon theory, and the ability-to-pay principle that is based on continental European “welfare-state” doctrine. The author uses equivalence (benefit) principle to develop a so-called “beneficiary” theory of economic justification for taxation. The beneficiary theory is for the first time set out in this article.
The beneficiary theory offers a new understanding of economic justification for taxation which is unconventional for Russian tax law and establishes a clearer – compared to previously known – criterion of economically justified taxation. This criterion makes it possible to identify economically unjustified taxes that do not comply with provisions of tax legislation and Russian Federation Constitution, and therefore can be applied when challenging:
1) validity of legislation establishing economically unjustified taxes;
2) constitutionality of tax legislation.
The author, using the beneficiary theory he developed, assesses economic justification for bachelor tax and vehicle tax paid by owner of a vehicle not in use.
Bratko T.D. —
Illegal income as an object of taxation in law of the Russian Federation and the United States
// Taxes and Taxation. – 2021. – ¹ 3.
– P. 39 - 50.
DOI: 10.7256/2454-065X.2021.3.35831
URL: https://en.e-notabene.ru/ttmag/article_35831.html
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Abstract: One of the perpetual problems within the Russian and U.S. tax law is the establishment of criteria for taxability of income, under what conditions the income of a taxpayer should be taxable. The fact the legislation nor the rulings of supreme courts contain a clear answer to this question, leads to the emergence of legal uncertainty on the tax consequences of receiving illegal income. The goal of this research lies in examination of problem of taxation of illegal income, including the questions of bringing to tax and criminal liability for tax evasion on illegal income, as well as in substantiation of a new solution to this problem. For achieving this goal, the author analyzes the Russian and U. S. case law on taxation of criminal and other illegal income. Although such practice is not always consistent, the merit of the court includes the development of classical theory of the object of income taxation. Namely, the Supreme Court of the United States formulated the well-known concept of taxable income and the rule on “right of claim”. The author believes that the grounds for distinguishing between taxable and non-taxable income is the criterion of economic benefit. The strict application of such criterion for the assessment of tax consequences from receiving illegal income led the author to a conclusion that contradicts the interpretations of the Russian and U. S. courts: only the economic benefit from the free use of the property, rather than the overall value of such property, should be recognized as the object of taxation should be recognized. The concept proposed by the author can be used in the practice of tax and judicial authorities for ensuring subjective rights and legitimate interests of taxpayers.
Bratko T.D. —
Taxation of potential income from rentals: reality and illusion of equal tax burden
// Taxes and Taxation. – 2020. – ¹ 4.
– P. 30 - 41.
DOI: 10.7256/2454-065X.2020.4.33165
URL: https://en.e-notabene.ru/ttmag/article_33165.html
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Abstract: Different forms of income taxation often become the subject of criticism among taxpayers in the Russian Federation and abroad. From this perspective, the tax for potential income from rental set by Taxation Code of the Russian Federation, paid within the framework of patents system of taxation, is not an exception: in 2019, a Russian taxpayer Sergey Aleksandrovich Glukhov disputed its constitutionality with reference to incompliance to the principles of equality and economic feasibility of taxation. This article provides a comparative-legal analysis of provisions of the Constitutional Court of the Russian Federation and the Supreme Court of the Unites States dedicated to constitutional principles of taxation: fairness, equality, economic feasibility, adequacy, etc. The author offers an original systemic interpretation of the Russian principle of economic feasibility of taxation and other legal principles, considering their interpretation by the Constitutional Court of the Russian Federation and practice of implementation of the constitutional principles of taxation in the United States. Based in this interpretation, the article gives an alternative assessment to taxation of potential income from rentals, paid within the framework of patent system of taxation in Russia. The conclusion is formulated that due to the principle of separation of powers, the questions of fair and economically feasible allocation of tax burden comprise an exclusive prerogative of legislators.
Bratko T.D. —
Verification of constitutionality of tax breaks: Russian and U.S. approaches
// Taxes and Taxation. – 2020. – ¹ 3.
– P. 67 - 78.
DOI: 10.7256/2454-065X.2020.3.32849
URL: https://en.e-notabene.ru/ttmag/article_32849.html
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Abstract:
Ensuring compliance with the generally accepted principles of law, protection of human and civil constitutional right and freedoms are attributed to a number of fundamental problems of the Russian and foreign law. Special place among them belongs to the problem of protection of constitutional rights of tax payers, particularly the contest of constitutionality of tax breaks. The essentially different approaches towards verification of constitutionality of tax breaks have established in the Russian Federation and the United States. Unlike the Supreme Court of the United States, the Constitutional Court of the Russian Federation refuses to verify the constitutionality of tax breaks based on compliances of the taxpayers, and thus in the author’s opinion, neglects the violation of constitutional norms. The goal of this article consists in examination of the problem of contest of constitutionality of tax breaks by the Russian taxpayers, and finding a possible way for its solution that would ensure compliance with the constitutional requirements in terms of tax incentivization. For achieving the set goal, the author resorts to comparative analysis of the practice of the Constitutional Court of the Russian Federation and the Supreme Court of the United States on the questions of verification of constitutionality of tax breaks. The author believes that the Supreme Court of the United States leans on the presumption of constitutionality of tax breaks, while the Constitutional Court of the Russian Federation – on the fiction of constitutionality of tax breaks. The conclusion is made in the need for implementation of the U.S. experience in the Russian Federation due to positive assessment of the developed by the Supreme Court of the United States algorithm of verification of constitutionality of tax breaks and presumption of constitutionality of tax breaks.