Prospects for the administration of parafiscalities on the example of port fees

Galchun Ekaterina Andreevna Bachelor's Degree Student, Department of Constitutional and Administrative Law, Far Eastern Federal University 690922, Russia, Primorskii krai, g. Vladivostok, o.Russkii, p.Ayaks, 10 ekaterina.galchun.77@mail.ru Kezlya Daniil Anatolevich Bachelor's Degree Student, Department of Constitutional and Administrative Law, Far Eastern Federal University 690922, Russia, Primorskii krai, g. Vladivostok, o.Russkii, p.Ayaks, 10 kezlia.da@students.dvfu.ru

Novichkov Il'ya Vyacheslavovich Bachelor's Degree Student, Department of Constitutional and Administrative Law, Far Eastern Federal University 690922, Russia, Primorskii krai, g. Vladivostok, o.Russkii, p.Ayaks, 10 novichkov.iv@students.dvfu.ru

The concept of parafiscality in Russia is not legal and is mentioned only in judicial practice. The doctrine combines under this category those types of non-tax payments (quasi-taxes) that cannot be attributed to fiscal fees, i.e. those that do not go to the budget of the appropriate level, but to the fund of a particular legal entity performing special functions reflecting public interest.

According to the author's definition of A.D. Kornev, parafiscality is a mandatory payment established by the public authority for the targeted financing of the activities of persons performing public functions and not being public authorities and local self–government bodies credited to a separate fund that does not participate in the financing of general budget expenditures ^{[1, p. 41]}. S. G. Pepelyaev notes that these payments are generally levied on the same terms as taxes, but differ in the revenue fund ^[2]. M. V. Karaseva, in her definition, focuses special attention on the public nature of payments, and also admits that they can also flow into the monetary fund of a state body ^{[3, p. 528]}.

Classic examples of parafiscalities in Russia are arbitration fees, remuneration for the free reproduction of phonograms and audiovisual works for personal purposes, port fees and others. We will especially turn to the regulation of the latter to illustrate and evaluate the category under consideration.

According to a number of criteria, a parafiscal payment is really similar to a tax and a fee.

Its obligation is ensured, even if not by direct, but by indirect coercion – non-admission to the market, the inability to carry out their economic activities. Thus, in accordance with subparagraph 4 of paragraph 1 of Article 80 of the Merchant Shipping Code of the Russian Federation, the seaport captain has the right to refuse to issue a permit for the vessel to leave the seaport in case of non-payment of the established port fees.

The parafiscal payment has a similar structure, in which the main and optional elements can be distinguished. Thus, the following elements of port charges are distinguished, in particular: the object of the obligation to pay, the basis for calculation, rates and rules for their application ^{[4, p. 44]}. The recipient of port fees acts as a specific element. The main recipient of port fees is FSUE Rosmorport, in the structure of total revenues of which for 2020 the main share (70%) was income from port fees. Also, income from a number of fees goes to the funds of FSUE "Hydrographic Enterprise", SUE RK "Crimean Seaports", SUE "Sevastopol Seaport", etc. There are also optional elements – payers of port fees, as well as discounts on the type of benefits that the administrations of seaports have the right to establish in accordance with paragraph 6 of the Order of the Federal Tariff Service of December 20, 2007 N 522-t/1 (Order of the Federal Tariff Service of December 20, 2007 N 522-t/1 "On the approval of the rates of port fees and the rules for their application in the seaports of the Russian Federation" [Electronic resource]. URL: https://docs.cntd.ru/document/902080334). In general, the individuality of the structure of the considered parafiscalities brings them closer to the fees.

Those additional features that the authors refer to as distinctive for parafiscalities are not, in fact, such.

A.V. Turbanov defines parafiscalities as payments charged free of charge ^{[5, p. 47]}. Firstly, taxes are also gratuitous. Secondly, the group of parafiscal payments includes both individually gratuitous payments and payments, the payment of which is one of the conditions for legally significant actions against payers by authorized persons — individually reimbursable ^{[6, p. 100]}. Thus, on this basis, parafiscalities have the character of a tax or a fee, it is not distinctive for them. Port payments, by their retribution, relate more to fees, therefore they are called so.

The targeted nature also does not distinguish parafiscalities from the mass of other payments. Fees and even taxes can be targeted ^{[7, pp. 25-26]}. Many authors clarify that the purpose of collecting parafiscalities must necessarily be socio-economic or to finance certain activities. This is seen as a specificity, but not a fundamental difference.

The temporary nature as a characteristic of parafiscality can also be the subject of criticism. In our opinion, sustainability should be discussed in relation to a specific payment, but not all parafiscalities in general. According to the fair remark of V. A. Novikov, the terms are not specified in the normative acts that establish the payments in question (On the system of parafiscal payments [Electronic resource]. URL: https://www.nalogoved.ru/art/643.html). So, port fees have existed for quite a long time (we are not talking about their centuries-old history). At the same time, categories appear and are abolished in the Tax Code. Thus, the experimental nature of the tax on professional income is directly fixed in article 18. So, any type of payment can be entered, changed and cease to exist. The time of existence of a legal entity is obviously incomparable with public entities, and yet the recipients of parafiscalities are not simple economic entities, but, as a rule, monopolies characterized by greater stability. Therefore, the Federal Law "On Natural Monopolies" is an important regulatory act in the field of parafiscalities.

As you can see, the line between parafiscalities and taxation is quite blurred by many criteria. For the economic entities-payers themselves, this difference does not exist at all. As S. G. Pepelyaev pointed out, it would be a methodological mistake to qualify a payment only by external signs, and for business both are mandatory expenses (About the system of parafiscal payments [Electronic resource]. URL: https://www.nalogoved.ru/art/643.html). For the payers of fees, the recipient of the funds often does not matter, because this does not affect the obligation of the payment in any way. There is even an opinion that the receipt to the budget of the state or municipal entity in itself is not an essential sign of a tax, i.e. a sign in the absence of which the payment ceases to be a tax ^[8]. We agree that parafiscalities remain taxes in the eyes of the payer, however, from the point of view of the legal nature, the fund of receipt of funds is just a fundamental difference in these categories, while other criteria have been critically evaluated by us.

From the legal point of view, another important point is the legal force of the source containing the rule of conduct on the payment of funds. In accordance with Article 57 of the Constitution of the Russian Federation, everyone is obliged to pay legally established taxes and fees. That is, in this case, the act must not be lower than the federal law. At the same time, the essential elements of a parafiscal payment can be established by subordinate regulatory legal acts, including departmental level, and sometimes by local acts of the organization in whose favor they are paid. Thus, Port charges are established by Article 58 of the Code of Inland Water Transport of the Russian Federation, and the specific composition and amount of fees are determined by departmental (ministerial) acts. The list of port charges levied at seaports is established by the Ministry of Transport of Russia. For example, in the Seaport of Vladivostok, ship, pilot, lighthouse, navigation, environmental, transport security of the seaport water area, investment fees are charged (Order of the Ministry of Transport of the Russian Federation No. 387 of 31.10.2012 (ed. of 29.06.2020) "On approval of the list of port fees levied in the seaports of the Russian Federation" [Electronic resource]. URL: http://www.consultant.ru/document/cons_doc_LAW_139265/). At the local level, port managers are given the right to provide discounts to shipowners in accordance with the established procedure.

And yet, as far as we can see, the legal entities in whose favor the parafiscalities are paid are not independent in regulating these payments. Anyway, FSUE Rosmorport and other organizations are authorized to collect port fees by the state. The regulation of parafiscalities is uncodified, unlike taxation, and yet amenable to state administration.

Why are we talking about the need to strengthen government intervention in the sphere of parafiscal payments?

As mentioned earlier, the payers of fees and those and other payments are considered as a tax burden on their business activities. At the same time, some of them are legally established taxes and fees contained in the Tax Code, and some are an unordered set of payments, scattered and incomprehensible to business entities. There is a decodification of tax legislation, which is why it loses its clarity and transparency.

The importance of state participation in the economy is widely known. Firstly, the state is interested in monitoring the implementation of public functions performed by legal entities-recipients of parafiscalities. Secondly, state intervention in their regulation will serve as a guarantee of the rights of the payers themselves, because in their fields of activity they are actually subject to double taxation.

Thus, the rates of port charges in Primorsky Krai are among the highest, while transport, especially port, activity is one of the most important for the economy of the region. Although the rates are approved by the Order of the Federal Tariff Service, they are still justified by the monopolist in the seaports of Russia – FSUE "Rosmorport" and represent a burden for economic entities, complicating their activities. At the same time, the tax burden on business is estimated, as a rule, without taking into account parafiscal payments.

As a result, there is no general model of financial control by the state in this area at the legislative level. This circumstance is considered in the science of financial law as a problem of insufficient financial control over the collection and expenditure of proceeds from the payment of parafiscal payments. As one of the ways to solve this problem, it is proposed to exercise financial control to the same extent as if it were budgetary funds ^{[1, p. 138]}.

State control, for example, of the Accounts Chamber of the Russian Federation or the Federal Treasury, should be established over the activities of legal entities, how they collect and spend parafiscalities. The administration of such payments can be handled by both tax authorities and other entities to which public functions have been transferred.

There is also an acute issue of ordering the sources regulating parafiscalities. As mentioned earlier, they are "scattered" according to regulations, are often adopted at the subordinate level and are actually installed uncontrollably. A number of researchers propose to solve this problem by establishing a rule at the legislative level that any non-tax payments can be introduced only on the basis of federal law and only if the legislative (representative) body at the regional and local levels decides on the need to establish such a payment ^[9]. We support the idea that parafiscalities should be established by issuing acts of greater legal force.

Another solution will be amendments to the Tax Code, i.e. the integration of parafiscalities and other non-tax payments into tax legislation. This approach has advantages: time-tested general provisions of the Tax Code, uniform principles, presumptions and more will apply to them; the problem of financial control will be solved by itself: an experienced controller will appear in the person of the Federal Tax Service.

Then it is necessary to determine whether this will be a new section, chapter or even part of the Tax Code, as well as which of the existing categories new payments can be attached to. According to K. I. Baigozin, part of the current acts establishing parafiscal fees can be moved to the chapter of the Tax Code on state duty, since this was already done in 2010 with the fee for issuing licenses for the sale of alcoholic beverages ^{[10, p. 34]}.

In 2019, the Ministry of Finance of Russia developed a draft law on non-tax payments. In particular, it was proposed to include six non-tax payments in the Tax Code: toll for trucks heavier than 12 tons on federal highways (Platon fees); resort (hotel) fee; environmental fee; recycling fee; payment for negative environmental impact; mandatory deductions of public communication network operators. They were supposed to be transformed into taxes and fees based on the current procedure for calculating them by consolidating and adapting to the requirements of the legislation on taxes and fees of the legal norms governing the collection of these payments ^[11].

None of the presented approaches seems to us sufficiently practical. Only port fees have a different character. K. I. Baigozin refers to the parafiscal fees only ship, lighthouse and canal, defining pilot and environmental fees as civil payments for services ^{[10, p. 34]}. As mentioned earlier, on the basis of individual compensation, parafiscalities may have the nature of a tax or fee. Therefore, it is impossible to adjust all non-tax payments to the existing categories of the Tax Code and their regimes. We believe that, firstly, parafiscalites need to leave their unique status and that, secondly, they have no place in the Tax Code at all. If fiscal payments can be integrated, then parafiscalities, due to their main difference – non–access to budgets - will not be included in the subject of regulation of the Tax Code in any way. Therefore, the only solution we see is the creation of a separate law for them, which would operate in parallel with the Tax Code. In addition, nothing prevents the norms and principles of the Tax Code of the Russian Federation from being applied in this law by analogy.

So, in modern financial law there is a problem that rises from year to year and which still remains unresolved. Uncontrolled non-tax payments established at the subordinate level undermine citizens' confidence in the entire tax system. It is necessary to overcome the decodification of legislation and create high-quality administration of parafiscalities for the formation of uniform and transparent conditions for the payment of taxes and fees. This will contribute to maintaining the tax burden of the business in a stable and predictable state in the long term.