Economic justification for taxation and tax fairness: a new look at an old problem

Bratko Tatiana Dmitrievna ORCID: 0000-0003-4682-573X Lecturer of the Department of International Law and Public Law, Financial University under the Government of the Russian Federation 105187, Russia, g. Moscow, ul. Shcherbakovskaya, 38, kab. 805 bratkotatiana@gmail.com Other publications by this author

1. Introduction

"Taxes,– said Winston Churchill, –are evil, necessary evil, but still evil, and the less taxes we have, the better" (Action This Day – Winter 1881-82, 1906-07, 1931-32, 1956-57 // International Churchill Society. URL :   https://winstonchurchill.org/publications/finest-hour/finest-hour-133/action-this-day-winter-1881-82-1906-07-1931-32-1956-57/). What is the justification for this "necessary evil"? What are the criteria for its "necessity"? For example, is the Russian transport tax a "necessary" or "excessive" evil that has no economic basis?

2. The theory of the fiscal social contract

The answers to the first and second questions are provided by the theory of the fiscal social contract. Such an agreement is an agreement between citizens and public authorities, according to which public authorities undertake to provide public services to citizens and ensure their access to other public goods, and citizens undertake to pay taxes in exchange for public goods received ^[1-3]. From an economic point of view, contractual relations assume that ^[4-5]:

a) the parties trust each other;

b) taxpayers may refuse to fulfill their counter obligations arising from the fiscal social contract, that is, they have the right not to pay taxes if:

– taxpayers do not consider it necessary and do not want to receive public benefits provided by public authorities;

– the public authorities clearly do not fulfill their obligations under the fiscal social contract, for example, they do not ensure public safety, public health protection, conditions for the realization of the right to education.

         In this regard, in practice, the question of low efficiency in the use of public financial resources often arises (for more information on the problem of low efficiency in the use of public resources, see ^[6]). Ensuring public safety, protecting the health of citizens, providing other public goods and creating conditions for a decent life for all members of society are not forms or types of charity, but duties provided for by the fiscal social contract and arising from the principle of justice. To fulfill such duties, funds are needed, which are collected through taxation within the framework of fiscal financial activities of public legal entities (for the concept of fiscal financial activities, see ^[7]). It is necessary to "participate each member of the company in the formation of a public fund of funds (budget) through the payment of taxes" (definition of the Judicial Board for Economic Disputes of the Supreme Court of the Russian Federation dated 07/24/2020 No. 305-ES20-8184 in case No. A40-58198/2018).

As I. A. Tsindeliani correctly notes, "the basic laws of the functioning of economic relations are embodied in the public finances of the state" ^[8]. The existence of a politically and economically organized society without taxation is impossible. "Taxation is the price we pay for civilization, for our social, civil and political institutions, for the protection of life and property, without which we would have to resort to the law of force. When taxes are imposed with respect to the principle of equality by the will of those who pay them, taxes should not be considered as a cause for discontent, but as our just contribution to the common good" (Journal of the House of Representatives of the State of Vermont, October Session, 1851. Burlington : University of California Press, 1852. P. 369. URL : https://www.google.ru/books/edition/Journal_of_the_House_of_Representatives/C31DAQAAMAAJ?hl=ru&gbpv=1&pg=RA1-PA369&printsec=frontcover).

3. A fair amount of tax burden

It is debatable what exactly constitutes a "fair contribution" or a "fair amount of tax burden", an immeasurable tax burden. From a theoretical point of view, this question can be answered in different ways. In particular, there are two incompatible principles of fair taxation ^{[9, pp. 12-39]}:

1) the principle of accounting for the actual ability to pay tax;

2) the principle of equivalence (benefits).

The principle of taking into account the actual ability to pay tax, related to the fair requirements of ensuring a decent life for citizens, is more typical for the continental European doctrine of the welfare state, and the principle of equivalence (benefit) is more typical for the "individualistic" Anglo–Saxon concept. The principle of equivalence (benefit), which corresponds to democratic principles, ultimately allows taxpayers to control budget expenditures and challenge their legitimacy in court (for more information, see ^[10-11]). It is important to take into account that the realization of the taxpayer's right to challenge budget expenditures is possible only if certain conditions are created by the public authorities. One of these conditions is to ensure "constant, comprehensive and maximally open access to information about the activities of all public authorities and local self–government, as well as the activities of specific officials" ^[12], the need for which is rightly pointed out by V. V. Grib.

Since the principle of accounting for the actual ability to pay tax and the principle of equivalence (benefits) are universal and applicable to any tax, the question of their content deserves more detailed consideration.

In accordance with the principle of taking into account the actual ability to pay tax, the amount of the tax burden should depend on the level of the taxpayer's economic well-being, so that taxpayers are not "overloaded" and "weak shoulders" bear less burden than "strong" ones ^{[13, pp. 171-175; 14, p. 59]}. If a taxpayer has losses, then taxation is designed to "distribute" them in a fair way, taking into account the actual ability of taxpayers to pay taxes. In this regard, socially vulnerable categories of citizens should be exempt from taxation: the poor, single mothers, the disabled, etc.

In contrast to the principle of taking into account the actual ability to pay tax, the principle of equivalence (benefit) requires that the individual tax burden of each taxpayer be commensurate not with his economic well-being, but with the benefit he receives from public authorities. Taxes are considered as the price for public services paid by each "consumer" of these public services in accordance with a certain calculation of the individual benefit received by him, fair taxes are considered as the right price, the lowest possible.  It is determined in a natural way: an effective and fair result, according to Adam Smith's idea, is given by the "invisible hand of the market."

4. The economic basis of the tax

In Russian tax law, the economic basis of a tax is one of the most abstract, obscure concepts that need to be defined.

According to clause 3 of Article 3 of the Tax Code of the Russian Federation, taxes and fees must have an economic basis and cannot be arbitrary. The principle of the economic basis of the tax fixed in paragraph 3 of Article 3 of the Tax Code of the Russian Federation is otherwise called the principle:

1) the economic validity of taxation (see, for example, the decision of the Constitutional Court of the Russian Federation dated 05/31/2023 No. 28-P "In the case of checking the constitutionality of Articles 248 and 249, paragraph 1 of Article 251 and Article 271 of the Tax Code of the Russian Federation, as well as paragraphs 1 and 3 of Article 5 and paragraph 2 of Article 134 of the Federal Law "On insolvency (bankruptcy)" in connection with the request of the Supreme Court of the Russian Federation and the complaint of the limited liability company "Enterprise of Construction Works of Energy"");

2) the economic validity of taxes (see, for example, paragraph 42 of the Review of Judicial Practice of the Supreme Court of the Russian Federation No. 3 (2019), approved by the Presidium of the Supreme Court of the Russian Federation on 11/27/2019).

Compared with the obscure Russian formulations of "economic basis of tax", "economic justification of taxation" and "economic justification of taxes", the foreign term "economic justification for taxation" – "economic justification of taxation" – is much more understandable even in the absence of a clear definition.

In our opinion, the economic basis of any tax can be convincingly explained using the principle of equivalence (benefit).

The income of a particular person depends on his own efforts and on the activities of public authorities to create public goods: the legal system, transport and other infrastructure, health care, education, etc. Without such public goods, a person would have only the income of a farmer, fisherman or hunter corresponding to the subsistence minimum (hereinafter referred to as the minimum income). The higher income compared to the minimum income is due to the benefit from the use of public goods provided by public authorities.

According to the principle of equivalence (benefits), for access to public goods that provide an opportunity to generate income, you need to pay a tax proportional to the benefit from using these public goods. A taxpayer with very high incomes has made little effort of his own to generate such income and has benefited enormously – clearly disproportionate to his own efforts – from the use of public goods, since he has used economic opportunities created not by himself, but by public authorities. Consequently, a high-income taxpayer must bear a heavier tax burden than a low-income taxpayer. From this point of view, the principle of equivalence (benefit) is the basis for the establishment of progressive tax rates by public authorities.

To a lesser extent, it depends on the conditions created by public authorities, how expenses are incurred for the purchase of goods, works, and services – consumption. It is carried out by private individuals freely at the expense of accumulated savings. Therefore, consumption taxes are less economically justified than income taxes.

The least conditioned by the use of public goods is the ability of a private person to "accumulate wealth" – to possess property legally acquired at the expense of income from which income tax has already been paid. It depends on the services provided by the public authorities:

– currency stability;

– protection of property belonging to private individuals and other property (for example, land plots, residential and non-residential premises, vehicles);

– others .

Taking into account the above, the economic basis of the tax is, in our opinion, the benefit of the taxpayer from the use of public goods provided by public authorities, which determines the realization of his economic interest in income, consumption or accumulation of property. It is the nature of the economic interest that determines the amount of benefit from the use of public goods required for its implementation. Depending on the amount of such benefit, which is the economic basis of the tax, taxes are divided into three groups, which are arranged in descending order of economic validity as follows:

1) income taxes;

2) consumption taxes;

3) property taxes (taxes on "accumulated wealth").

Since the taxpayer in the relations under consideration with the public authorities acts as a kind of beneficiary (beneficiary), the concept proposed by us can be called the beneficial theory of the economic basis of the tax. It differs from the old legal theories in that:

a) recognizes the economic basis of the tax as the taxpayer's benefit from the use of public goods, and not the object, object of tax ^{[15, p. 33]}, source of tax ^{[16, p. 30]} (property at the expense of which the tax is paid) or "an event or phenomenon from the sphere of economics acting as a link between the taxpayer and the object of taxation; that which allows us to talk about the "presence" of the taxpayer of the object of taxation (for example, ... inheritance of property ...)" ^{[17, p. 146]};

b) establishes a clearer criterion – in comparison with previously known ones – for the presence (absence) of an economic basis for a tax, suitable for use in cases of compliance of normative legal acts with the Constitution of the Russian Federation and cases of invalidation of normative legal acts establishing economically unjustified taxes.

The beneficial theory allows us to determine whether a particular tax has an economic basis, whether it complies with the principle of economic justification of taxation arising from the Constitution of the Russian Federation and enshrined in Article 3 of the Tax Code of the Russian Federation. This issue requires special attention.

From our point of view, there is no economic basis, for example, a tax on childlessness. Its collection was carried out earlier according to the Decree of the Presidium of the Supreme Soviet of the USSR dated 11/21/1941 "On the tax on bachelors, single and childless citizens of the USSR", the re–introduction is now being discussed ^[18]. In comparison with a citizen with children, a childless citizen does not receive any additional benefit from the use of public goods, which could serve as an economic basis for a tax paid by childless citizens and not paid by citizens with children. The absence of such a benefit, in our opinion, indicates the absence of an economic basis for a tax on childlessness.

5. Assessment of the tax on an unused vehicle in Russian law enforcement practice

Is the transport tax paid by the owner of an unused aircraft economically justified?

This issue was the subject of consideration by the Constitutional Court of the Russian Federation in the case of O. A. Pleshakov. The Constitutional Court of the Russian Federation noted that, by virtue of Articles 357 and 358 of the Tax Code of the Russian Federation, the object of transport tax is an aircraft registered in accordance with the established procedure, the payer of this tax is the person for whom the aircraft is registered (see the ruling of the Constitutional Court of the Russian Federation dated 01/28/2021 No. 177–O "On refusal to accept for consideration the complaint of citizen Oleg Anatolyevich Pleshakov for violation his constitutional rights under paragraph 1 of Article 131 of the Civil Code of the Russian Federation and paragraph 9 of Article 33 of the Air Code of the Russian Federation").

The same "formal" approach is reflected in the established law enforcement practice. The payer of the transport tax is recognized as:

– a person who has a proprietary right to an aircraft – the right of ownership, operational management, and economic management (see letter of the Federal Tax Service of Russia dated 06.11.2019 No.BS-4-17/22634@, definition Supreme Arbitration Court of the Russian Federation dated 30.03.2010 No.VAS-3261/10, definition Supreme Arbitration Court of the Russian Federation dated 01/22/2010 No.VAS-17904/09, resolution of the Federal Arbitration Court of the Moscow District dated 04/24/2012 in case No. A41-40524/10, ruling of the Leningrad Regional Court dated 07/08/2015 No.33-3435/2015; appeal ruling of the Voronezh Regional Court dated 12/28/2020 in case No. 33a-6519/2020);

– the owner of the aircraft, not the person operating it (see definition Supreme Arbitration Court of the Russian Federation dated 12/16/2013 No.VAS-17962/13 in case No. A82-14843/2012);

– the person to whom the vehicle is registered, regardless of the actual ownership of the vehicle (see the resolution Arbitration Court of the West Siberian District dated 09/26/2014 in case No. A03-19782/2013; decision of the Eleventh Arbitration Court of Appeal dated 01/20/2022 No.11AP-623/2022 in case No. A72-3670/2017; cassation ruling of the Eighth Cassation Court of General Jurisdiction dated 05/31/2023 No.88A-11434/2023 in case No.2a-4965/2022).

From the point of view of law enforcement agencies, the physical absence of an air vehicle in itself does not exempt a taxpayer from the obligation to pay transport tax until the vessel is de-registered with registration authorities (see the Moscow City Court's appeal ruling of 09/14/2020 in case No. 33a-3482/2020 with reference to the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 12/15/2011 No. 12223/10 in case no. A40-62640/09-151-457 ). However, a slightly different opinion was expressed: since taxes and fees must have an economic justification, in the case when the aircraft was completely destroyed as a result of a disaster, there is no object of transport tax (see the ruling of the Judicial Board for Economic Disputes of the Supreme Court of the Russian Federation dated 02/17/2015 in case No. 306-KG14-5609, A55-23180/2013).

         The issue of payment of transport tax by the owner of an unused aircraft arose in the case of O. A. Pleshakov. In 2015, citizen O. A. Pleshakov purchased an airplane. The ownership of the aircraft was registered in the Unified State Register of Aircraft Rights and Transactions with Them. In addition, the aircraft was registered in the State Register of Civil Aircraft with an identification mark assigned to it and was excluded from the register on 08/16/2017.

The tax authority calculated the transport tax for the period from 02/13/2017 to 08/16/2017, when the ownership right of citizen O. A. Pleshakov to the aircraft was registered in the Unified State Register of Rights to Aircraft and Transactions with them. The courts considered it lawful to levy a transport tax, refusing to satisfy the citizen's claims for recognition of illegal actions of the tax authority on the calculation of tax.

Citizen O. A. Pleshakov disagreed with the position of law enforcement agencies and appealed to the Constitutional Court of the Russian Federation. From the citizen's point of view, the contested norms are unconstitutional on the grounds that, according to the meaning given to them by law enforcement practice, they allow the collection of transport tax from the owner who does not operate the aircraft. The Constitutional Court of the Russian Federation refused to accept the said appeal for consideration with the following justification. Since, during the disputed period of time, the ownership of the aircraft belonged to citizen O. A. Pleshakov and the aircraft was registered in the State Register of Civil Aircraft, the collection of transport tax in respect of this aircraft, according to the Constitutional Court of the Russian Federation, does not violate the constitutional rights of a citizen (see definition No. 177-O of 28.01.2021 "On refusal to accept for consideration complaints of citizen Oleg Anatolyevich Pleshakov on violation of his constitutional rights by paragraph 1 of Article 131 of the Civil Code of the Russian Federation and paragraph 9 of Article 33 of the Air Code of the Russian Federation").

         So, the Constitutional Court of the Russian Federation has ensured the stability of the tax conditions for conducting economic activity:

– applied the "formal" approach typical of the established practice of arbitration courts and courts of general jurisdiction;

– supported his previously stated position that the federal legislator complies with constitutional regulations, linking the occurrence of a vehicle taxable object with the fact that a vehicle is registered with a taxpayer.

Unfortunately, the expectations of citizen O. A. Pleshakov were not fulfilled. The act of the Constitutional Court of the Russian Federation does not contain a complete and detailed interpretation of legislation based on the constitutional principles of tax law and the constitutional understanding of the object of taxation (for an overview of modern ideas about the principles of tax law, see, for example, in the works of D.V. Tyutin and J.G. Popkova ^[19-20]).

6. The economic basis of the tax on an unused vehicle from the point of view of the beneficial theory

         What is the economic basis of the transport tax?

The amount of the transport tax depends on the engine power of the car. From the point of view of the Constitutional Court of the Russian Federation, it determines the cost of the car and the costs of its maintenance, and also allows you to assess the level of impact of the vehicle on the condition of public roads (see, in particular, the resolution of the Constitutional Court of the Russian Federation dated 02.12.2013 No. 26-P "In the case of checking the constitutionality of paragraph 2 of Article 4 of the Law of the Chelyabinsk Region "On transport Tax" in connection with the request of the Legislative Assembly of the Chelyabinsk Region"; ruling of the Constitutional Court of the Russian Federation dated 12/14/2004 No. 451-O "On refusal to accept for consideration the request of the House of Representatives of the Legislative Assembly of the Sverdlovsk Region to verify the constitutionality of paragraph 1 of Article 374 of the Tax Code of the Russian Federation"; ruling of the Constitutional Court of the Russian Federation dated 07/17/2014 No. 1568-On "Refusal to accept for consideration the complaint of citizen Dordjiev Sanal Valeryevich for violation of his constitutional rights by subparagraph 1 of paragraph 1 of Article 359 and the provisions of paragraph 1 of Article 361 of the Tax Code of the Russian Federation"; Ruling of the Constitutional Court of the Russian Federation dated 02/25/2016 No. 329-On "Refusal to accept for consideration the complaint of citizen Gilinskaya Galina Yakovlevna on violation of her constitutional rights by the provision of Article 361 of the Tax Code of the Russian Federation").

Because of this legal position of the Constitutional Court of the Russian Federation, the economic basis of a transport tax is often associated with the ability of a vehicle to "affect the condition of public roads." If the vehicle is operated only in a closed area, for example at an airport or seaport, then it does not affect the condition of public roads and, according to some courts, there are no economic grounds for its imposition of a transport tax (see the decision of the Federal Arbitration Court of the North-Western District of 03/23/2009 in case No. A05-8942/2008, resolutions of the Federal Arbitration Court of the Moscow District dated 23.01.2007 in case No. A40-13318/06, dated 08.12.2008 No. A40-68552/07-107-397 ).

In our opinion, the ability of a vehicle to affect the condition of public roads should not be considered as a mandatory characteristic of the economic basis of a transport tax. Indeed, in the strict sense of the word, air and water vehicles do not affect the condition of roads. In particular, airways are not subject to wear at all (for more information, see: Pepelyaev, S. G. Legal bases of property taxation : textbook / S. G. Pepelyaev et al.; edited by S. G. Pepelyaev. M. : Statute, 2016. p. 131).

         As D. V. Tyutin rightly points out, "the object of taxation by transport tax is the fact of ownership of certain types of vehicles registered in accordance with the established procedure (legal status)" (Tyutin D. V. Tax law: A course of lectures // SPS ConsultantPlus. 2020). Neither the ability of a vehicle to "affect the condition of public roads" nor the "possibility of operating a vehicle" are specified as characteristics of the object of transport tax in the Tax Code of the Russian Federation. And this is not accidental. If the possibility of operating a vehicle was a condition for the obligation to pay transport tax, then the presence of technical malfunctions in the vehicle and other similar circumstances would allow the taxpayer not to pay transport tax. In this case, budget revenues from the transport tax would be extremely low. Its introduction would not make economic sense.

It is important to take into account the name of the tax. The tax is called a "vehicle tax", not a "vehicle use tax" or a "road tax". In our opinion, the transport tax is not a "payment" for the actual use of a vehicle and cannot be considered a road tax, since the proceeds from it go not only to road maintenance, but to finance all state activities.

In our opinion, the transport tax is an essential tax, a tax on "accumulated wealth". In Russian and foreign doctrine, the collection of property taxes is recognized as justified, economically fair: since the taxpayer has "accumulated" property as a result of using economic opportunities that were created not by himself, but by other members of society, he must "pay" for these opportunities. From our point of view, one of the forms of such payment is the transport tax.

The economic basis of the transport tax, according to the beneficial theory developed by us, is the taxpayer's benefit from the use of public goods provided by public authorities, which determines the realization of his economic interest in the accumulation of property. Indeed, public law education creates the necessary conditions for the possession and operation of vehicles, ensuring the construction of roads, the protection of private property, etc. The use of these public goods benefits a person who has property rights to vehicles. It is she who makes it possible to realize his economic interest in accumulating objects of property – vehicles. In our opinion, this benefit is the economic basis of the transport tax, which acts as a kind of payment for access to public goods, providing the opportunity to accumulate property in the form of vehicles.

In our opinion, the actual amount, form and nature of the benefit received by a particular taxpayer from the use of public goods provided by public authorities have no legal significance and do not affect his tax liability, since taxes are individually gratuitous. For example, the owner of an unused aircraft does not actually accept a counter-provision from a public legal entity in the form of ensuring the safety of air transport infrastructure facilities. But such an owner remains a payer of the transport tax: he must pay for access to numerous public goods that provide the very possibility of accumulating property in the form of vehicles.

7.     Conclusions

From the point of view of the beneficial theory developed by us, the economic basis of the tax is the taxpayer's benefit from using public goods provided by public authorities, which determines the realization of his economic interest in income generation, consumption or accumulation of property.

The beneficial theory offers an unconventional understanding of the economic basis of a tax in the light of the "individualistic" Anglo-Saxon ideas about the principle of equivalence (benefit). The criterion of the presence (absence) of an economic basis for a tax, formulated by us in the beneficial theory, allows us to identify economically unjustified taxes that do not comply with the norms of the Russian Constitution and tax legislation. This criterion can be applied, in particular, when:

– challenging the constitutionality of the provisions of the legislation on taxes and fees;

– invalidation of regulatory legal acts that establish economically unjustified taxes.

Although the beneficial theory provides a new answer to the eternal question of the essence of the economic basis of tax for Russian tax law, many aspects of the problem of fair economically justified taxation need further study, for example, the concept of "taxability" of income, criteria for economically justified differentiation of taxation.