Legal status of the State Budgetary Institution Of The Voronezh Region "Center For State Cadastral Valuation Of The Voronezh Region"

Kolmakova Kristina Aleksandrovna Teacher of legal disciplines, Voronezh Law College 394055, Russia, Voronezhskaya oblast', g. Voronezh, ul. Leningradskaya, 1 89204029731@mail.ru

The Institute of State cadastral valuation is relatively new for the domestic legal system. On January 01, 2017, Federal Law No. 237-FZ of 03.07.2016 "On State Cadastral Valuation" ^[1] (hereinafter also the Federal Law "On State Cadastral Valuation") came into force, which radically changed the approach to establishing the cadastral value of real estate objects in Russia.

One of the novelties of Federal Law No. 237-FZ of July 3, 2016 is the assignment of functions for the state cadastral valuation of real estate objects to specialized entities – budgetary institutions created by the subjects of the Russian Federation. Previously, the determination of the market value for tax purposes was carried out in relation to each individual object of real estate by professional appraisers. They were involved in the performance of relevant functions on a competitive basis in accordance with the legislation of the Russian Federation on the contract system in the field of procurement of goods, works, services for state and municipal needs (Article 24.14 of Federal Law No. 135-FZ of 29.07.1998 (ed. of 18.03.2020) "On Appraisal activities in the Russian Federation") ^[2].

Previously, the existing system of cadastral valuation allowed to "blur" the responsibility between the customer of the work (Rosreestr bodies, or authorities of the subjects of the Russian Federation), performers (appraisers) and a self-regulating organization of appraisers. The transfer of powers to determine the cadastral value to state budgetary institutions that will permanently determine the cadastral value should contribute to improving the quality and ensuring the determination of the cadastral value according to a single methodology.

In accordance with part 2 of Article 6 of the Federal Law "On State Cadastral Valuation", the authorized body of a constituent entity of the Russian Federation grants powers related to the determination of cadastral value to a budgetary institution established by a constituent entity of the Russian Federation (hereinafter also referred to as a budgetary institution). At the same time, the Law "On State Cadastral Valuation" does not contain a special name for such institutions. For example, in Moscow it is called the State Budgetary Institution of the city of Moscow "City Center for property Payments and Housing Insurance" ^[3], in the Moscow region - the state budgetary institution of the Moscow region "Center for Cadastral Valuation" ^[4], in St. Petersburg - St. Petersburg State Budgetary Institution "City Cadastral Administration estimates" ^[5], in the Novosibirsk region – the State Budgetary Institution of the Novosibirsk region "Novosibirsk Center for Cadastral Valuation and Inventory" ^[6], in the Voronezh Region - the State Budgetary Institution of the Voronezh Region "Center for State Cadastral Valuation of the Voronezh Region" ^[7], in the Altai Territory – "Altai Center for Real Estate and State Cadastral Valuation" ^[8] etc.

In any case, it is obvious that such institutions are not among the State authorities.

The new approach of the legislator reflects two divergent trends in the legal regulation of the institute of state cadastral valuation. On the one hand, the actual work on the valuation of real estate is removed from the sphere of public procurement, which implies the refusal to involve professional appraisers in determining the value of real estate objects, that is, persons whose main purpose is to make a profit. On the other hand, the functions and powers of the authorities in the field under study are delegated to specialized organizations that do not have the status of a public authority. At the same time, in practice, these organizations (budgetary institutions) actually carry out the entire scope of work on determining the cadastral value of real estate objects on the territory of the subject of the Russian Federation, including the preparation of a draft of the relevant regulatory legal act. The authorized state authority of the subject of the Russian Federation in the field of state cadastral valuation only approves the draft normative act prepared by the budgetary institution – a report on the determination of cadastral value (Article 15 of the Federal Law "On State Cadastral Valuation").

The author believes that it would be most correct to determine the status of state budgetary institutions of the subjects of the Russian Federation, endowed with functions in the field of state cadastral valuation, as a "legal entity of public law".

This approach is consistent with two trends developed in the world practice in the field of public administration. One of them is related to the empowerment of certain categories of specialized organizations (legal entities). Such organizations, having a specific status in a certain area (as an example, banks, self-regulatory organizations in the field of construction) are able to control the activities of other organizations within the relevant sphere of relations ^[9]. In some States, the construction "legal entity of public law" is used in legislation ^[10].

Another trend is related to the delegation of authority to subjects of private law. The state, not having for certain reasons (for example, lack of qualified personnel, special equipment) the ability to effectively regulate any sphere of public relations, attracts certain legal entities that have the necessary capabilities to carry out their functions (these can be both commercial and non-profit organizations). At the same time, the powers to make decisions of a public-governmental nature are reserved for public authorities. The involved organizations are entrusted only with the preparation of relevant decisions, including documentation (including draft regulations and individual acts). Public authorities also have control powers over the listed organizations. Such an approach has been called "delegation" or "outsourcing" of public authority to non-governmental organizations ^[11].

The concept of legal entities of public law is relatively new for domestic legislation and legal science. Thus, in accordance with the amendments to Part 1 of the Civil Code of the Russian Federation, introduced by Federal Law No. 99-FZ dated 05.05.2014 ^[12], the approach to securing the legal status of such a legal entity as an institution was changed. The mentioned federal law introduced Article 123.21 "Basic Provisions on Institutions" into the text of the Civil Code of the Russian Federation, according to part 1 of which "a unitary non-profit organization established by the owner for the implementation of managerial, socio-cultural or other non-commercial functions is recognized as an institution." Thus, it is allowed for a legal entity to exercise the appropriate organizational and legal form, including managerial (in other words, power) functions and powers.

In accordance with part 1 of Article 9.2 of the Federal Law "On Non-Profit Organizations" ^[13], a budget institution is a non-profit organization established by the Russian Federation, a subject of the Russian Federation or a municipal entity to perform works, provide services in order to ensure the implementation of the powers provided for by the legislation of the Russian Federation, respectively, state authorities (state bodies) or bodies local self-government in the fields of science, education, health, culture, social protection, employment, physical culture and sports, as well as in other areas. Article 6 of the Budget Code of the Russian Federation ^[14] contains the definition of "state institution" - a state (municipal) institution that provides state (municipal) services, works and (or) execution of state (municipal) functions in order to ensure the implementation of the powers of state authorities (state bodies) or bodies provided for by the legislation of the Russian Federation local self-government, the financial support of which is carried out at the expense of the relevant budget on the basis of budget estimates.

Thus, in domestic legislation, the emphasis is placed on the fact that such legal entities participate in the preparation of management decisions, carry out certain preparatory work, despite the fact that the authority itself is implemented by the competent authority (for example, through the adoption of a regulatory legal act or a legal act of an individual nature). In other words, in the relevant legal relations, they realize not so much the civil-legal, as the administrative-legal status.

To date, a universal approach to the content of the concept of "legal entity of public law" has not been developed in domestic legal science.

The opinion of E.A. Sukhanov seems to be justified, according to which the conditionality of the term "legal entity of public law" itself is emphasized, as well as the vagueness of the scope of the concept hiding behind it (that is, the totality of all elements that fall under the corresponding definition). The researcher rightly notes that "by itself, this category does not make it possible to clearly establish it, being just another generalizing concept, behind which anyone can actually hide - from the state, municipal formation and public authority to a state enterprise or a joint-stock company with one hundred percent state participation" ^[15]. 

Tarasov Yu. I. identifies the essential features of the type of organizations under study:

1. Unlike ordinary legal entities, these entities are created by the adoption of a public legal act;

2. Have legal capacity, the scope and limits of which are determined by their goals and objectives formulated in a public act (the so-called target legal capacity);

3. Do not have constituent documents;

4. Directly acquire and exercise public-legal powers and are endowed with property intended to ensure their implementation."

As examples of such legal entities, various authors cite the Central Bank of the Russian Federation, state extra-budgetary funds, state corporations, the state company "Russian Highways", the Federal Fund for Housing Development Assistance; the State Atomic Energy Corporation "Rosatom" ^[16], etc.

The problems of legal entities of public law and the delegation of certain powers to non-governmental organizations are touched upon in foreign legal science. The author considers the most fruitful approach, the essence of which is not so much in attempts to offer an exhaustive definition of the concept of "legal entity of public law" (legal entity of public law), as in determining the limits of permissible delegation of authority to non-governmental organizations. Thus, in the work of Professor David M. Lawrence entitled "Private Exercise of Governmental Power" ^[17], a distinction is rightly made between powers that are inherent in authorities (for example, tax collection, seizure of property) and public functions that, under certain conditions, they can be transferred to private organizations (self-regulation in certain areas, for example, in the insurance business).

Based on the above, the author highlights the following positive aspects related to the delegation of certain powers to legal entities, including legal entities of public law:

1. As a rule, the relevant persons are engaged in a rather narrow issue (sphere), for the purposes of which it is impractical to create a separate state authority (or local self-government body);

2. The content of the activities of the relevant institution is mainly not so much power actions as "auxiliary" activities aimed at the preparation and technical elaboration of relevant decisions.

3. As a consequence of the two previous features, the personnel of the relevant organizations (created, as a rule, in the form of budgetary institutions) have professional training corresponding to the types of public authority activities delegated to the organization.

4. The assignment of certain public functions to budgetary institutions allows for a more flexible personnel policy. For example, the monetary content of its employees depends not so much on such traditional criteria for the state (as well as municipal) service, as class rank, position, seniority, but on the level of competence of the employee in the field of activity of this institution. This allows, on the one hand, not to extend the guarantees provided for civil servants to the staff of the institution performing purely technical functions, and on the other, to establish an adequate monetary allowance for persons who, although they do not have a long public service experience, have high qualifications necessary to effectively solve the tasks facing the relevant an institution. For example, according to the direct instruction of the Federal Law "On State Cadastral Valuation", as well as the requirements of the Ministry of Economic Development of Russia ^[18], one of the requirements for employees of budgetary institutions is the availability of higher education, including in such areas as computer and information sciences, earth sciences, engineering and construction technology, etc. that a person may be a sufficiently qualified specialist in the relevant fields, but at the same time have no public service experience. Delegation of authority allows you to make an employee's monetary income dependent on his qualifications.    

5. Delegation makes it possible to impose property liability for losses not on the budget of the relevant territorial entity (in our case, the subject of the federation), but directly on a budgetary institution or a state institution. This circumstance motivates the staff of the institution to minimize the number of errors in the preparation of decisions of an authoritative nature.

6. There are more opportunities for flexible redistribution of powers between different levels of public authority. For example, budgetary institutions authorized in the field of state cadastral valuation are created by regional authorities (which allows taking into account the specifics of a particular subject). At the same time, control over their activities is carried out by the territorial bodies of Rosreestr, whose employees have special knowledge in the relevant subject area.  

Along with the obvious advantages of transferring certain functions in the field of determining the cadastral value of real estate objects to "legal entities of public law", we can also talk about the presence of certain shortcomings of current legislation and law enforcement practice. With regard to the status and activities of state budgetary institutions in the field of state cadastral valuation , these include the following:

1. For specialized budgetary institutions, the possibility of carrying out other activities besides performing public functions in the field of state cadastral valuation is not excluded. Moreover, it can be both about the exercise of other powers of authority, and about activities aimed at making a profit, for example, in the Novosibirsk region, this institution ^[6] carries out all types of activities characteristic of cadastral engineers (including cadastral work and land management work), the development of project documentation, aerial photography of the area, etc. In the Altai Territory, the relevant institution carries out geodetic and land management works, works on technical inventory of all types of objects (residential and non-residential stock, power lines, gas pipelines, etc.).

On the one hand, such side activities allow a budgetary institution to achieve self-sufficiency and reduce budget expenditures. On the other hand, this may lead to a disdainful attitude towards the public functions assigned to this institution in the field of state cadastral valuation of real estate objects. Moreover, the exercise of some of the above functions may give rise to a conflict of interest. Thus, when carrying out a technical inventory of housing stock objects, the characteristics of such an object can be established that affect its cadastral value (for example, the degree of wear). For this reason, it is possible for budgetary institutions to provide relevant services on a commercial basis "with an eye" to the results of cadastral assessment in order to prevent their contestation. 

2. The limitation of the scope of activity of a budget institution by the territory of a particular subject generates its inability to determine the cadastral value of real estate objects located on the territory of several subjects of the federation. This applies, first of all, to linear objects – such as gas and oil pipelines, power lines, etc. In addition, rightly focusing on the specifics of the economic development of a particular region, budgetary institutions do not always have sufficient capabilities (including personnel) to evaluate specific real estate objects. For example, in the subjects of the Russian Federation located in the Far North, specialists with the necessary qualifications to determine the cadastral value of reindeer pastures can be involved in the work in the relevant institutions. But at the same time, they may lack employees who have the necessary knowledge for cadastral valuation of land plots in the "Rest (Recreation)" segment due to the small number of relevant facilities.

3. The formation of the personnel of the authorized budget institution is carried out by the head of this institution. Articles 6-8 of the Federal Law of 03.07.2016 N 237-FZ "On State cadastral valuation" do not contain any special prescriptions on this issue. In the regional legislation, the author also failed to find norms that fix the possibility of somehow participating in the formation of the personnel of such institutions for entities whose rights may be affected by its activities (these include Rosreestr bodies, municipalities, representatives of the business community). Similarly, these subjects do not have the opportunity to participate in the preparation of the draft report on the results of the state cadastral assessment, including through consultations or sending preliminary objections to its content.

At the same time, the possibility of participation of the listed stakeholders in the work of commissions resolving disputes in this area out of court is explicitly provided. So, according to part 8 of Article 22 of Federal Law No. 237-FZ of 03.07.2016, the commission at a budget institution consists of one representative of the authorized body of the subject of the Russian Federation, one representative of the registration authority and one representative of the Commissioner for the protection of the rights of entrepreneurs in the subject of the Russian Federation. The commission may include representatives of other federal executive authorities, executive authorities of the subject of the Russian Federation, the Council of municipalities of the subject of the Russian Federation, the business community, self-regulatory organizations of appraisers, the Commissioner for Human Rights in the subject of the Russian Federation.

4. The state budgetary institutions under consideration are liable for violation of legislation in the field of state cadastral valuation on general grounds (Part 3 of Article 7 of the Federal Law "On State Cadastral Valuation"). That is, we are talking exclusively about civil liability for damages. At the same time, despite the inherently public-legal nature of the activities of such institutions, there is no provision for any administrative responsibility of both the organization itself and its employees. In particular, there is no liability for violation of the deadlines for carrying out measures for state cadastral valuation, the deadlines for considering the declaration on the characteristics of the real estate object, the deadlines for considering requests for clarification related to the determination of the cadastral value, or for providing an unmotivated response to such requests, etc.

Moreover, there is a practice of exempting budgetary institutions from court costs in cases of establishing the cadastral value of real estate objects in the amount of the market value, for example, if they recognize a claim.

Thus, at the moment there are contradictions between the approaches justified in legal science to the status of legal entities of public law, as well as to the procedure for delegating (outsourcing) certain power functions, on the one hand, and the legislative consolidation of the legal status of budgetary institutions performing functions in the field of state cadastral valuation, on the other. In order to eliminate these contradictions, the author proposes the following amendments to the legislation:

1. Article 7 of the Federal Law "On State Cadastral Valuation" should be supplemented with Part 2.1., in which it should be fixed that a state budgetary institution does not have the right to engage in activities not related to the implementation of state cadastral valuation.

2. It is proposed to create a federal state budgetary institution in the field of state cadastral valuation under the Federal Service for State Registration, Cadastre and Cartography (Rosreestr). It is proposed to assign to this institution the functions of cadastral valuation of real estate located on the territory of two or more subjects of the Russian Federation. It is also advisable to consolidate the right of budgetary institutions of the subjects to apply to this organization in order to assess complex and unique objects, in the absence of the necessary personnel and information from the institutions of the subjects. 

To this end, it is necessary to supplement Federal Law No. 237-FZ of 03.07.2016 with Article 8.1., which enshrines the legal status, formation procedure, powers and responsibilities of a federal budgetary institution in the field of state cadastral valuation.

3. To consolidate the ability of subjects whose interests are affected by the results of the state cadastral assessment to influence the formation of the personnel of state budgetary institutions. To do this, Article 10 of Federal Law No. 237-FZ of 03.07.2016 should be supplemented with Part 5, in which it should be established that at least one employee of such an institution is appointed to a position by agreement:

- with the council of municipalities of the relevant subject, and

- with the territorial subdivision of the federal executive authority that carries out state cadastral registration and state registration of rights.

4. In the legislation of the subjects of the Russian Federation on administrative offenses, it is recommended to fix administrative responsibility for employees of state budgetary institutions for violating deadlines:

- consideration of the declaration on the characteristics of the property;

- consideration of requests for clarification related to the determination of the cadastral value, or for the provision of an unmotivated response to such requests;

- consideration of requests for correction of errors made in determining the cadastral value.