Problems of classification of movable and immovable property for tax purposes as a factor in the investment policy of enterprises

Krokhmal Daniil Dmitrievich ORCID: 0000-0001-7801-9164 Student; Faculty of Taxes, Audit and Business Analysis; Financial University under the Government of the Russian Federation 55 Leningradsky Ave., Moscow, 125167, Russia daniil.krohmal.dm@mail.ru Other publications by this author

Introduction

Among the topical issues of taxation for the future in the Main Directions of budget, tax and customs tariff policy for 2024 and for the planning period 2025 and 2026 in the context of corporate property tax (hereinafter NIO), an initiative is indicated to study the transition to taxation of real estate of organizations based on cadastral value in relation to a wider range of objects. In the aspect of approximate measures of tax policy on property taxation, the Ministry of Finance of the Russian Federation points to clarifying the definition of the concept of an object of consumer services in order to apply the provisions of Article 378.2 of the Tax Code of the Russian Federation to eliminate ambiguous interpretation of legislation. The initiatives presented are significant in themselves, subject to separate analysis, but something else is noteworthy here. The Ministry of Finance of the Russian Federation has not identified the problem of distinguishing movable and immovable property in tax policy measures, or even in topical tax issues for the future, despite the fact that practice on this issue is extremely variable, and legislation does not seem to be adequately harmonized, meeting basic principles of taxation. Further, we will repeatedly note that the criteria for real estate, which have been expanding more and more recently, do not meet the initial prerequisites for the reform of research and development. Thus, in the Letter of the Ministry of Finance of the Russian Federation dated 10/31/2022 No. 03-05-04-01/105232, it is noted that the exclusion of movable property from the list of taxable objects should encourage organizations to invest in the purchase of fixed assets, to expand programs to update worn-out fixed assets, to direct resources to modernization, reconstruction and retrofitting of means of production. It should be noted that the problem of equipment wear is one of the key obstacles to the development of economic growth in the Russian Federation (the problem of insufficient investment of the economy), and the effectiveness of the adopted incentives for research and development is extremely doubtful with an inconsistent and rather vague position regarding the qualification of property.

The purpose of the study is to develop ways to improve the mechanism of property classification for tax purposes as a factor in the growth of investment attractiveness in the Russian Federation.

The achievement of this goal determined the formulation and solution of the following tasks:

1) analysis of the current legal regulation of the differentiation of movable and immovable property,

2) to analyze various approaches to the classification of property in the aspect of judicial practice;

3) to assess the dynamics of changes in the total value of immovable property recognized as an object of taxation;

4) to develop mechanisms and signs of property classification for tax purposes.

The object of the study is the economic relations that develop in the process of taxation of the property of organizations.

The subject of the study is the classification features of movable and immovable property.

The scientific novelty of the research consists in the formation of a new approach to the classification of property objects based on criteria formed within the framework of judicial practice, as well as aimed at increasing the investment attractiveness of the Russian Federation.

The practical significance of the study lies in the possibility of using the proposed criteria for the classification of property by tax authorities to systematize internal analytical approaches and taxpayers in order to minimize tax risks for corporate property tax.

Statement of the research problem

The problem of defining movable and immovable objects, their fair and transparent differentiation, inevitably arises in the functioning of the corporate property tax. This is one of those disadvantages that, one way or another, is embedded in the essential definition of the object itself, which means that it will inevitably manifest itself in the process of tax collection. This can be traced both with the development of the global practice of property taxation, and with a detailed study of the Russian experience in retrospect of recent decades. However, in this work we do not set ourselves the goal of analyzing the world experience of real estate taxation or revealing the historical aspect of tax law in Russia (in terms of foreign experience, it is worth noting that it is not considered for the only reason that the problems of the study are caused by specific characteristics of property objects for tax purposes specific to each country). Instead, we will focus on the current realities of applying the provisions of Chapter 30 of the Tax Code of the Russian Federation, on the practice of decisions of tax authorities on additional charges related to the characteristics of various property objects, as well as on the results of tax disputes, where a position is developed in court, which inevitably rises to the rank of a direct recommendation for action for all taxpayers of the state.

The methodological basis of this study is formed by the provisions of economic theory, classical works on tax law, various approaches to the study and identification of contradictions in emerging judicial practice, and the works of leading researchers on the subject. The following research methods are used in the work: dialectical, logical, comparative legal, statistical data processing method, comparative analysis, synthesis, method of grouping and tabular presentation of information.

The relevance of the study, as previously mentioned, is due to the structural problems of the domestic economy caused by underfunding of manufacturing industries. To confirm this thesis, we present macroeconomic statistics on some segments of the national economy, which are characterized by increased capital armament (which increases both the effectiveness of using property taxation in terms of effective methods to stimulate investment attractiveness, and the negative effect of property taxation from the functioning of an increased tax burden in the industry). Taking into account all possible statistical, institutional and other features (in particular, the share of research and development in the tax burden of enterprises), consider as an example the following set of industries: production of coke and petroleum products (5.4% of research and development in the tax burden); production of motor vehicles and related equipment (3.3% of research and development in the tax burden); provision of electric energy, gas and steam (13.4% of the NIO in the tax burden). The relevant statistical information is given in Table 1.

Table 1 – Some macroeconomic indicators of the capital of the armed sectors of the Russian economy (Investments in Russia. 2023: Stat.sat./ Rosstat.-M., 2023. – 229 p.)

The depreciation rate of fixed assets of 50% is considered high, indicating an extreme shortage of financial resources for the renewal of fixed assets. At the same time, the volatility of investments in fixed assets, adjusted for inflation indicators, shows that if stagnation of underfunding is typical for industries such as providing electric energy, gas and steam, then the situation is on the verge of disaster for the automotive industry. By the end of 2022, the production of cars and related equipment in the Russian Federation showed a record decrease in investment activity by almost 50% over the past decade, and the return on assets for the industry was negative. Of course, the causes of intersectoral imbalances lie beyond both the calculation of research and development and taxation in general, and refer us to the structural problems of the Russian economic model. However, do not underestimate the importance of tax policy. Optimal and timely approaches to tax incentives and tax restrictions can significantly reduce the negative effect of these imbalances. Given the tense investment situation in a number of key sectors of the Russian economy, it can be summarized that an inconsistent and unstable position regarding the qualification of property objects can have a negative effect many times exceeding the values of the initial prerequisites (in particular, due to the horizontal rather than vertical effect). Economic agents who monitor judicial practice and current legislative clarifications, in order to minimize tax risks, take into account new criteria for classifying property objects not only in terms of reflecting the facts of economic life and forming tax reports, but also include these tax expenditures in investment plans (which are currently significantly limited by the cost of borrowed capital, focusing on high-margin a business with a high return on invested capital), which negatively affects the prospects for solving the main problems with the renewal of fixed assets. Therefore, when we even talk about the production of coke and petroleum products, where the situation with fixed assets has just begun to show positive dynamics, we should be extremely careful with such instruments as property taxation, which can become the most decisive factor that will determine the fate of economic growth and development of the industry.

The second prerequisite for the relevance of the study is the harmonization of legislation, the construction of a regulatory tax structure based on the principles of fairness, legality, clarity and legal equality. We will analyze this premise in more detail, its justification and practical significance in the following parts of the study, but for now we will focus on the fact that the system of normative legal acts should not contain multiple interpretations and obvious contradictions. Moreover, the legal framework, whether it is the definition of the object of taxation or the specifics of calculating the tax base, should not be dependent on causes and factors that do not follow from the basic principles of tax legislation.

The concepts of legal regulation of property taxation in the aspect of clarifying the characteristics of an object are of interest to many scientists and specialists in the field of tax regulation. Among them are S. G. Pepelyaev ^[1], I. V. Boboshko ^[2], T. A. Loginova ^[3], D. A. Smirnov ^[4] and many others. It is worth noting separately that most of the authors, one way or another, highlight the significant disadvantages of uncertainty regarding the differentiation of movable and immovable property, indicate the available ways to eliminate them, and make proposals for a qualitative reform of the property taxation system. Topics of this kind are interesting not only in the context of Russian jurisdiction. This is confirmed by the research of such authors as Blochliger, H. ^[5], Brzeski. J. ^[6], Prammer D. ^[7] and others. In some scientific papers, the sectoral features of the formation of tax revenues for research and development are investigated. For example, in the article by R. V. Balakin, A. A. Popov, S. D. Shatalov ^[8], using correlation and regression analysis, contradictions between the tax burden and the specific weight of R&D accruals in the context of various segments of the domestic economy, taking into account, among other things, the territorial aspect, are revealed. The conclusions of the study are indicative in terms of the problems of determining movable and immovable objects, as they allow us to identify industries with the greatest structural imbalances of taxation for further analysis of judicial practice. The work of Bogachev S. V., Mandroshchenko O. V., Antonova M. B. ^[9] contains interesting analytical calculations on the use of modern technologies for the development of tax administration tools for various aspects of property taxation, including the characteristics of property objects. Research on the issue with industry specifics is noteworthy, which makes it possible to significantly supplement the understanding of the actual economic nature of individual fixed assets (as an example, the work of A. A. Busygina ^[10]).

It should be noted that the determining role of the courts in discussing the theoretical component of the issue for this problem is commonplace, and this, in our opinion, is not quite normal, as it indicates the constant volatility of tax practice. This can also be seen in scientific papers. Thus, the articles by K. S. Danilov ^[11], Yu. S. Mirzoev ^[12], K. O. Makarova ^[13] present the actual categorical features of movable and immovable objects at the time of the research, and some of the contradictions that arise are caused by the time factor, the dynamics of lawsuits. Under current realities, any scientific work that defines the characteristics of movable and immovable property does so "on the date", which only confirms the need not for a point analysis of individual judicial practices, but for the creation of a balanced regulatory system, where the main disadvantages of the established approach to determining a property object will be leveled.

In the Russian Federation, according to the data of 2023, the NIO accounts for about 7% of the tax revenues of the consolidated budget of the subjects of the Russian Federation. This value varies greatly depending on the region. This fact is influenced by many aspects: business activity in the territory (the location of large businesses, large industries); the availability of minerals; the amount of tax benefits; climatic conditions, etc. In other words, even in Moscow, where research and development accounts for only 4.7% of tax revenues, it provides the budget with an amount of 179 billion rubles (which is comparable, for example, to the annual financing of the state program "Economic development and investment attractiveness of the city of Moscow"). Let's look at macroeconomic statistics, how the total value of all real estate (recognized as an object of taxation under the NIO) has changed in recent years.

Table 2 – Dynamics of changes in the total value of real estate recognized as an object of taxation under the NIO, and the total value determined according to statistical authorities

Source: compiled by the author on the basis of a Report on the tax base and the structure of accruals for corporate property tax 5-P; information from Rosstat on fixed assets and other non-financial actives5

Let's pay attention to how the dynamics of the gap develops between the total value of all objects of taxation for research and development and the total value of fixed assets determined by Rosstat for buildings and structures (note that, based on direct legal norms, not every structure is recognized as real estate). If in the period 2019-2021 the growth in the total value of all taxable objects generally corresponded to numerical changes in the revaluation of old and commissioning of new buildings and structures, then in 2022 there is a fundamental change in approach. The increase in the total value of property taxed at an average annual cost exceeded the value of 15%. At the same time, the assumption that this could happen due to a reduction in objects taxed at cadastral value is rejected due to an increase in the total cadastral value by more than 30%. This gap becomes all the more obvious if we consider that there is property that is not recognized as an object of taxation for research and development, but is somehow taken into account in statistical forms of the total book value (for example, property for the needs of security and law enforcement, cultural heritage sites, space objects, etc.). Table 1 shows, that the total book value of non-residential buildings and structures in 2022 exceeds the total book value of taxable objects by less than a quarter, whereas in 2019 this value exceeded 40%. As a result, the share of the total value of real estate for tax purposes in the total value of all property in 2022 increased by more than 6% relative to 2021. It seems fair to say that one of the reasons for this imbalance is precisely the inclusion of an increasing number of non-capital structures, machinery and equipment in real estate (or rather, a change in the legal status the status of entire clusters of property objects).

Analysis of approaches to the classification of property in the aspect of judicial practice

The Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation) does not contain definitions of the concepts of "movable" and "immovable" property. Article 374 of the Tax Code of the Russian Federation establishes that immovable property is recognized as an object of taxation under the NIO, however, no additional explanations and comments are provided in the Law. In such a situation, they must be sought in other branches of legislation (clause 1 of Article 11 of the Tax Code of the Russian Federation). In accordance with FSB 6/2020, FSB 26/2020, machinery and equipment are allocated in a separate type of fixed assets from buildings and structures. The All-Russian classifier of Fixed Assets 013-2014 (Rosstandart Order dated 12.12.2014 N 2018-st) also confirms this division (with the exception of machinery and equipment that are a direct part of buildings and structures). Taking into account Article 130 of the Civil Code of the Russian Federation, in which real estate includes "land plots, subsurface areas and everything that is firmly connected with the land, that is, objects whose movement is impossible without disproportionate damage to their purpose," it should be noted that the presented characteristic, although it contains the primary signs of real estate, but not It allows it to be properly defined, since it does not explain which connection with the earth can be considered strong and what damage is considered disproportionate. If we take into account the provisions of Articles 133 and 133.1 of the Civil Code of the Russian Federation, then the analysis of each individual object becomes even more time-consuming, since an additional characteristic arises in the form of recognition of property as a single immovable complex (hereinafter ENK), the content of which boils down to an ambiguous formulation about inextricably physically/technologically connected objects. It would be fair to note that few upgrades of production equipment do not end with its connection (to one degree or another) with an object of real estate (building; capital structure), which is characteristic of structurally complex and expensive objects, however, recognizing each such upgrade as an improvement of the building/structure in which it is located seems to be a measure that does not meeting the basic principles of the legislation. The Judicial Board for Economic Disputes of the Supreme Court of the Russian Federation ("Review of judicial practice of the Supreme Court of the Russian Federation No. 4 (2019)) noted that equipment can relate to buildings and structures only if it becomes an integral part of them, is directly included in the functional composition of their operation (as, for example, various kinds of communications inside buildings The installation of which is intended to equip the object with one or another type of resource, i.e. heat, water, gas, etc.). At the same time, if we are dealing with the opposite situation, that is, a special building is being built to ensure the operation of the equipment, then this option can no longer be considered as a basis for recognizing the equipment as immovable (Definition The Judicial Board for Economic Disputes of the Supreme Court of the Russian Federation dated 09/28/2021 No. 308-ES21-6663 in case No. A18-1531/2019). An additional argument for the qualification of a fixed asset as real estate is its registration in the Unified State Register of Rights to Immovable Property (hereinafter EGRN), however, this criterion is contradictory in itself, because the EGRN exists for the functional stability of civil turnover, and not for the differentiation of different statuses of property (Resolution of the Plenum of the Supreme Court of the Russian Federation dated 06/23/2015 No. 25 "On the application by courts some provisions of Section I of Part One of the Civil Code of the Russian Federation"). Thus, the issue of distinguishing the ENK with movable and immovable objects separated from each other is also one of the key issues in this aspect.

At the moment, we have listed only the most common criteria for recognizing real estate. Given that each of them cannot be recognized unconditionally, and most of the formulations are still quite spatial in nature, a natural question arises about the guidance and principles of including certain objects by a particular taxpayer. In practice, each property object is considered individually. Its design features, the possibility of moving and reinstalling are analyzed (while the criteria for significant loss of technological properties are also not established). Let's consider the current judicial practice more specifically, paying attention to the nature of the application of certain criteria for assigning property to the category of movable or immovable for the purposes of tax legislation.

Table 3 - Judicial practice on the qualification of movable/immovable property (2019-2023)

Let's note how contradictory the judicial practice on this issue is. Property objects identical from the point of view of accounting, actual use, and industrial purpose are recognized as movable in one court decision, and immovable in another. This trend has a negative impact on both the general state of the tax system (violation of basic principles of taxation and law) and on taxpayers, owners of expensive property, large investors in fixed assets, who in such a situation are practically obliged to form inflated reserves and direct additional resources to a single tax account in case of a sudden change in judicial practice. Let's give an example. The Arbitration Court of the Volga District (Resolution of the Arbitration Court of the Volga District dated 06/02/2023 N F06-3151/2023 in case N A55-28635/2021) in the second quarter of 2023, justifying the attribution of fixed assets to immovable property, including referred to the List of types of immovable and movable property of electric grid unified production and Technological complexes, approved by the Order of the Ministry of Industry and Energy of Russia from 01.08.2007 N 295 (Order of the Ministry of Industry and Energy of the Russian Federation dated 01.08.2007 N 295 "On lists of types of property included in the unified production and technological complex of the debtor organization, which is a subject of the natural monopoly of the fuel and energy complex"). At the same time, the Arbitration Court of the Moscow District (Resolution of the Arbitration Court of the Moscow District of 06/16/2023 N F05-10886/2023 in case N A40-237615/2018; Resolution of the Arbitration Court of the Moscow District of 04/19/2022 N F05-8706/2020 in case N A40-317545/2011) repeatedly justified the inconsistency of the reference to this document, since it was adopted in pursuance of the provisions of the expired Federal Law, as evidenced, among other things, by the Letter of the Ministry of Energy of the Russian Federation dated 09/16/2020 N EG-11258/09 (Order of the Ministry of Energy of the Russian Federation dated 11/30/2020 N 1064 "On recognition of the non-applicable Order of the Ministry of Industry and Energy of the Russian Federation dated August 1, 2007 N 295). In addition, earlier the Ministry of Energy noted that the effect of the List under consideration has always been limited exclusively to legal relations within the framework of bankruptcy proceedings and has never extended to other relations. Additionally, as part of the trial, the conclusion of the Institute of Legislation and Comparative Law under the Government of the Russian Federation was attached, which substantiates in detail the inapplicability of the Order of the Ministry of Industry and Energy of Russia dated 08/01/2007 No. 295 in the framework of such disputes. This example of a cardinal discrepancy between court decisions within one year is not unique. An analysis of the judicial practice of the last five years shows that the List of the Order of the Ministry of Industry and Energy of the Russian Federation dated 08/01/2007 N 295 is actively used by the tax authority as a justification for classifying property as immovable for the purposes of tax legislation, and despite all the arguments of the inapplicability of this document, confirmed including by the Supreme Court (Ruling of the Supreme Court of the Russian Federation dated 08/12/2022 N 305-ES22-13255), is periodically used as a justification for the assignment of fixed assets to real estate.

Another manifestation is the very characteristic of a property object by various judicial authorities in terms of its attribution to movable or immovable property. Here is an example (specific, but far from exhaustive, since the arguments listed below apply to a whole list of fixed assets) at transformer substations (hereinafter TP). It is worth saying that there is a Definition of the Supreme Court of the Russian Federation (Definition of the Supreme Court of the Russian Federation dated 03.09.2018 N 307-KG18-13146 in case N A05-1595/2017), which recognizes TP as an immovable object based on the specificity of the location, the solidity of the foundation (strong connection with the earth), connection with electrical communications and the definition of the electric grid in the Federal Law "About the electric power industry." Later, the Definition of the Board of Economic Disputes of the Supreme Court of the Russian Federation was published (Definition of the Judicial Board of Economic Disputes of the Supreme Court of the Russian Federation dated 07/12/2019 N 307-ES19-5241, A05-879/2018), which established the need to use formalized accounting criteria (PBU 6/01, FSB 6/2020, FSB 26/2020) in conjunction with the classification of objects in the relevant normative legal acts ("OK 013-2014 (2008 SNA). The All-Russian classifier of fixed assets"). That is, fixed assets (independent inventory items) that are subject to grouping as "machinery and equipment" are recognized as movable (accounted for separately in accounting) for the purposes of tax legislation (regardless of their installation on a foundation or other attachment to a real estate object, because according to the legislation, such a foundation and fasteners generally relate specifically to equipment and not to the building), if their useful lives differ significantly, there is no general management center. At the forefront of the logic of the Supreme Court of the Russian Federation is the use of movable objects for production purposes (for maintenance of the production process), and immovable objects for maintenance of buildings. Note that sometimes it is difficult to clearly distinguish the intended purpose solely by this criterion, but with regard to TP, the production specifics are practically obvious. In addition, the court decision emphasizes that taxation should not depend on the value judgments of individual experts (as well as on the specifics of the installation of facilities, technological specifics, climatic or seismic conditions of their place of operation). As a result, the court recognized the TP as a movable object, and the presented reasoning was to become the basis for all future similar situations. Later, the practice changed again (for the third time in 5 years). The Supreme Court of the Russian Federation (2023) approved the recognition of TP as an immovable object. As a justification, reference was again made to Article 3 of the Federal Law No. 35-FZ dated 03/26/2003 "On Electric Power Industry", according to which the TP is part of the electric grid economy, which, in turn, is recognized by the ENK (impossibility of using the property separately). The examination also showed that the TP is included in a wide range of facilities, the final purpose of which is the transmission and distribution of electricity. It is worth noting that this logic not only directly contradicts previously published court decisions on this issue, but also generally introduces a rather vague and vague definition. The court act noted that "A hydroelectric power plant (which includes TP) is a complex of structures and equipment united by a single production purpose and technological mode of operation, inextricably linked physically and technologically, erected according to a single project and located on the same land plot," but such a characteristic of a complex thing can be applied to any large-scale production in in principle, from the point of view of the presented conclusion, it makes any structures and equipment involved in such production immovable (in a different way than electricity production is essentially different from any other). This interpretation of Article 374 of the Tax Code of the Russian Federation does not correspond to the basic prerequisites of property taxation in the Russian Federation, according to which movable property cannot be recognized as an object of taxation, nor does it correspond to the earlier position of the Supreme Court, which declared the inadmissibility of recognizing an object as movable based on production technology.

Additionally, it should be borne in mind that according to Art. 133.1 of the Civil Code of the Russian Federation, the inclusion of fixed assets in the ENK (as well as the very existence of the ENK) is possible only if there is an appropriate entry in the EGRN (therefore, this civil category is applicable only if there is an expression of will on the part of the subject of law). Regarding the "inseparable connection" of property objects with buildings and structures, which most often means the foundation, it is important to pay attention to the explanatory provisions of the Classifier of Fixed Assets (OK 013-2014), which was previously also recognized by the Supreme Court as the fundamental document on the issue of recognizing an object as movable/immovable for the purposes of tax legislation. For example, it declares that foundations for all kinds of objects constructed for the operation of these objects are not part of buildings (with the exception of foundations of large-sized objects erected simultaneously with the construction of buildings), but are recognized as an integral part of the property located on them (this may be a boiler, generator, machine, machine, transformer station, etc. At the same time, the tax authority often uses the fact of drawing up acts (COP-11, COP-14), the use of forms (COP-2, COP-6) as an argument for recognizing property as immovable, which is strange from the position of freedom of use of these accounting documents (the use of one or another form of document cannot determine movable property or the capitalization of the fixed asset). In addition, the tax authority increasingly determines the sign of an ENK if an enterprise acquires the entire production facility (building, structures, equipment, etc.). Such an argument tries to appeal to the integral structure of a huge number of property objects, but the form of investment (buying everything together or separately) does not negate the fact that the equipment/non-capital structures were positioned separately by the previous owner, purchased at different times, installed at different times, satisfied both general and specific requirements for a particular object, therefore, the practice of changing the legal status of property after participation in civil law turnover seems unjustified and biased.

If the practice of dispute resolution is variable over time in terms of equipment, then the position has recently been established for structures (by the nature of their capital) (Resolution of the Arbitration Court of the Moscow District of 06/16/2023 N F05-10886/2023 in case N A40-237615/2018) assigning many objects the status of real estate, regardless of the capital/non-capital nature of their functioning. The linearity of objects (such as pipelines, gas pipelines, steam pipelines, flues, etc.) in judicial acts has ceased to be a proven property, has become a permanent characteristic of a specific OKOF code. It is worth saying that the very fact of defining a structure as linear is to a certain extent controversial, due to the fact that no clear criteria have been established, and certain categorical features are separately recorded in various normative legal acts, including urban planning legislation, forestry legislation, environmental protection legislation, energy legislation, etc. (due to in the absence of a generally accepted system of integrated assessments, each trial is forced to rely on its own value judgments). However, earlier judicial practice proceeded from the need to distinguish between linear and non-linear structures. A significant drawback was the lack of a clear quantitative definition of linearity, but all the objects considered by the court were examined for significant extent, affecting many land plots, and significant connection with linear objects of buildings and structures. There was no systematic approach to this, but there was a detailed analysis of each individual situation. In the last 2 years, the courts have stopped analyzing even such an essential feature of real estate as a connection to the land. For example, such properties of structures as the possibility of dismantling an object for troubleshooting according to technical documentation, characteristics of fasteners (supports, foundations, suspensions), functional independence, etc. are ignored.

For the sake of completeness, we accumulate the main argumentation, based on which the courts classify property objects with a view to classifying them as movable/immovable property, in tabular form (see Table 4). Let's make a reservation that not all of the criteria listed below correspond to current practice. At the time of the end of 2023 and the beginning of 2024, court decisions are quite categorical and are clearly not in favor of taxpayers, which is evident both from the dating from Table 3 and from the example of changing the selection of criteria mentioned earlier (however, this fact, we recall, is one of the main prerequisites for the relevance of the study, and the study The stated purpose of the analysis is to determine the emerging trends for their compliance with the basic principles of tax legislation).

Table 4 – Aggregation of relevant signs of recognition of property as movable/immovable for the purposes of tax legislation

Thus, we have outlined a disparate list of criteria for recognizing property as movable/immovable for the purposes of tax legislation. It seems obvious that it is impossible to apply all such features at the same time, since they essentially contradict each other. In addition, it seems fair to note that not all the categories formulated in Table 4 correspond to the given direction of development of the Russian economy in terms of investment incentives and property taxation, in particular. It is worth saying that paragraph 9, when detailing, can be further clarified by providing sets of technical information on specific property objects from industry regulatory legal acts. These information and criteria were not provided for several reasons, mainly due to goal setting and lack of clarity. Unlike, say, paragraph 2, where the relevant agency forms a reasoned opinion on the issue of movable and capital of the object, realizing the direction of its conclusions and the essence of the disputed situation, paragraph 9 embodies the use of sectoral legislation, the purpose of which is fundamentally different from the specifics under consideration. On the one hand, this may seem quite correct, provided for by tax law, since in order to interpret a particular concept, it is necessary to refer to other legislative acts (Article 11 of the Tax Code of the Russian Federation). However, in practice, this method of substantiating the characteristics of property does not bring any clarity or accuracy to the definition of the object of taxation of research and development and can be equally unjustifiably used by both taxpayers and tax authorities, turning the whole situation into an exchange of interpretations of the reading of technical regulations of operation, regulatory norms of price formation, land, urban planning regulations, etc. In other words, the essence of this criterion is not to fairly determine the characteristics of property for the purposes of tax legislation, but to seek out supporting formulations in legislative acts ("immovable", "capital", "land-related", "unified production process", etc.) to justify a favorable position in each particular the case. At the same time, neither the context of the use of a concept, nor the imperative nature of its nature, nor the goal setting of its application are often taken into account to the proper extent. In this regard, a good example of justifying the partial inapplicability of paragraph 9 is the criterion of paragraph 4, the shortcomings of which have already been mentioned earlier.

Certain categories are of little use for the purpose of building a harmonized system of property taxation of organizations in this aspect due to the lack of focus on solving current problems and the lack of economic feasibility. For example, paragraph 5 of Table 4 assumes the use of expert assessments. In practice, it is not uncommon for situations where, within the framework of court proceedings, participants conduct several examinations, the conclusions of which not only do not correspond to each other on a number of points, but also offer fundamentally opposite conclusions. In addition, conducting constant expensive examinations does not seem to be a measure that meets the principles of legal equality and economic expediency.

The criteria in paragraphs 6, 7 and 10 of Table 4 are inapplicable due to their subjective nature and lack of a legal basis. The definition of the category of an object of fixed assets cannot depend on how the taxpayer documented his capital investments or what criteria of economic expediency he was guided by. The situation is absurd when 2 absolutely similar objects in similar industries have a different category only because the owners used different investment models for modernization, reconstruction or establishment of an enterprise (with the criterion of economic feasibility, there is also a significant drawback due to the uncertainty of the assessment). A similar problem occurs when examining an object for compliance with the category of "products of full factory readiness". Transporting an object can be extremely difficult, but possible. Dismantling may not be provided for by the technical regulations of operation, but in practice it is implemented. As a result, the application of this approach will lead to the same disadvantage as paragraph 5, which makes its application impractical.

Conclusions and suggestions for improvement

The problem of the legal differentiation of movable and immovable property can be solved with the help of various tax regulation tools, including through a large-scale reform of the entire property taxation, affecting the fundamental foundations of the current procedure for collecting research and development, land and transport taxes ("real estate tax" and other forms). Such proposals were considered by such authors as A. N. Mayorova ^[14], N. V. Vycherova ^[15], D. A. Smirnov ^[16] and others. However, in this study, we will not focus on global initiatives for tax restructuring, since the specifics of their implementation presuppose a different evidence base and go beyond the object definition (requires analysis of many other aspects that are not directly involved in this study). Moreover, it would be fair to note that any large-scale reform of property taxation in itself only slightly shifts the optics, but in fact does not solve the main issues of fair and legal characteristics of movable and immovable property from the point of view of tax legislation, which is why the authors, as a rule, consider these issues in parallel with their basic concept, justifying as a result, the integration of disparate analytical calculations into the new tax system. In this study, the focus is on the specifics of determining the object of taxation of research and development, which is due to the targeted nature of the work. If necessary, in the future, it is always possible to include individual elements of a particular proposal in a comprehensive reform of the tax system.

When developing a new definition of the characteristics of movable and immovable property for the purpose of tax legislation, we must proceed from several fundamental positions. Firstly, the new definition should be free from critical shortcomings of current practice (i.e., its implementation should contribute to the stabilization of the investment policy of enterprises, taking into account the initial prerequisites for excluding movable property from the object of taxation). Secondly, the new definition must comply with the basic principles of legislation on taxes and fees established by Article 3 of the Tax Code of the Russian Federation. In particular, the provisions on equality and the mandatory establishment of all elements of taxation. Let's pay attention to the position of the Constitutional Court of the Russian Federation (Resolution of the Constitutional Court of the Russian Federation dated 03/13.2008 No. 5-P), considering equality from the point of view of uniformity, neutrality and fairness. Consequently, situations where actually the same property objects acquire a different regulatory status depending on exogenous factors in relation to this property should be recognized as unacceptable.

The proposed solution to the existing contradictions is to reduce the entire process of determining the legal status of property for tax purposes to a single document, the content of which would allow for a clear distinction between movable and immovable property. For tax legislation, the mechanism when part of the functional specification of the norm is placed under the control of an authorized body is quite common, so it fits perfectly into the modern concept of building a tax system. It is very important that the content of such a single document allows any taxpayer to determine without any risk whether his property is an object of taxation or not. Taking into account the entire range of types and subspecies of fixed assets operating in the Russian economy, we note that the only relatively stable tool for identifying a property object is the OKOF code (developed in accordance with the main international standards). Thus, we inevitably return to the wording currently presented in the Tax Code of the Russian Federation, according to which the accounting procedure (formalized accounting criteria) is used in determining taxable fixed assets. Of course, this approach has its own risk markers, at least in terms of the practice of correctly determining the OKOF code (since the taxpayer independently determines it for his fixed assets), useful life, signs of artificial separation of objects in accounting. However, we note that the main difficulties with the correct definition of the OKOF code arise, as a rule, not with large and expensive machines, machines and equipment, but with objects whose characteristics from the point of view of movable / immovable property are quite obvious. The main thing is that taxpayers will not have to constantly monitor tax risks in terms of objects with controversial judicial practice, because each OKOF code will be specifically fixed in a specialized regulatory act, and any changes in such an act (pursuing fiscal or regulatory goals) will be obvious and clear to all owners. At the same time, the currently applied criteria aimed at an individual assessment of the status of an object of immovable property, based on other provisions of legislation (which in modern domestic law are already full of discrepancies), will not be applied. For example, [overpass, pipeline, flue, metal structure // boiler, pump, hydraulic coupling, turbine] as [structure // equipment] is either taxed or not taxed on the property of organizations (regardless of length, linearity, connection with land and other objects, the possibility of performing their functions separately, compiling accounting or It is important to clarify that the criteria of movable and immovable property developed over many years of practice will not be applied specifically in the individual order of property valuation (including in the framework of judicial proceedings), but their use for a comprehensive determination of the status of property of a specific OKOF code, to determine the features most characteristic of this code The OKOF, with discussions and coordination at the level of the Government of the Russian Federation, with the use of statistical arrays in the national plane, will remain relevant (note: at the stage of drafting a regulatory act, it is necessary to involve various specialists, experts, appraisers, industry departments and ministries for detailed consideration, but the final decision must be formalized and specific). Of course, this approach will lead to the fact that in some situations, property objects that, according to the aggregate assessment of criteria, belong rather to one group of property, will be assigned to another group only on the basis that, in general, this OKOF code is characterized by signs of movable/immovable property. However, the lack of consideration in assessing certain individual properties of a particular object is also observed in the current approach to determining characteristics, but not because of the presence of a clear-cut framework for the object of taxation of research and development, but because of their absence.

The ENK Institute deserves a separate comment in the proposals for improvement. Despite the fact that the formulation of the object of taxation will make a direct reference to a specialized regulatory legal act, for a harmonious legislative presentation, it is necessary to additionally substantiate and formalize the inapplicability of the ENK design in tax law.

Earlier, we have already noted the fact that the creation of the ENK initially did not provide for significant tax consequences, but only assumed the introduction of a new civil law mechanism for harmonizing turnover and simplifying the registration of large property complexes. In other words, the institute of the ENK was not a tax reform, but the factors that caused its appearance lay in the regulation of urban planning and land relations, as well as in the aspect of issues of cadastral registration and state registration of rights to real estate. At the same time, the risks of the potential impact of the ENK on taxation issues were identified at the dawn of its appearance by various specialists and researchers ^[17]. In particular, the main prerequisites for the restructuring of the corresponding provisions of the legislation were formed in order to increase the attractiveness of the ENK for large enterprises. Ten years later, the discourse has shifted so much that the existence of the ENK has ceased to be perceived by many companies as a tool and incentive, but has become rather a limiter and a tax risk. This is confirmed by numerous judicial practice in recent years, in which the courts fundamentally reject the argument about the voluntary nature of the formation of the ENC.

It is worth saying that in matters of the composition of the ENK, including the inclusion or non-inclusion of individual property objects in it, there was initially no single unified approach, and the criteria were developed in the form of recommendations from the Ministry of Finance (Letter of the Ministry of Finance of the Russian Federation dated 05/22/2013 No. 03-05-05-01/1821), based on numerous technical regulations and scattered calculations of industry regulations (interestingly, many such criteria will only begin to be formalized after a certain time in the form of court decisions on research and development in terms of movable and immovable property). The logic of the legislative process seemed to provide from the very beginning for the introduction of additional amendments to a number of normative legal acts, among which the Tax Code of the Russian Federation should have been, after a conditional adaptation period, but such amendments did not follow.

We emphasize that the practice of constantly periodically disavowing attempts to create a framework and clear criteria for determining movable and immovable property is a serious risk factor for the sustainability of the investment climate in the Russian Federation. The situation when in a relatively short time opposite decisions of the Supreme Court are issued (or rather, the Supreme Court refuses to take up a case, the conclusions of which directly contradict the definition of two years ago), when the Federal Tax Service of Russia issues several Letters with different positions for accounting in the work of tax inspections at all levels, does not correspond to the principles of building a tax system, as well as the interests of further development of the country's economy. Thus, it is proposed: to abstract the institute of the ENK (as well as all related categories in the form of a "complex thing", "technological connection", etc.) from taxation in each individual case - to fix in paragraph 1 of Article 374 (or a separate subparagraph of paragraph 4 of Article 374) of the Tax Code of the Russian Federation a legislatively formalized imperative denying any the influence of the ENK institute and the related "criteria of civil turnover" on the taxation of research and development (it is also necessary to make a number of related changes in the registration of personal property tax). Further tax regulation and administration should proceed from the taxation of individual inventory items as independent categorical system units in accounting, considered outside the context of any functional or technological connection.

To potentially possible remarks that the complete elimination of the ENK from tax law does not seem to be a measure that is adequately justified, because in itself the presence of significant functional and technological connections of various objects with each other should, one way or another, be taken into account as a fact corresponding to the actual operation of the property, we note the following. When developing a single specialized document with a distinction between movable and immovable objects, various criteria and approaches to assessment can be used. They may find a different point of application in terms of the volume of the final tax burden (based on the fiscal or incentive tasks of the Government of the Russian Federation; we emphasize that it is precisely because of this fact that the budget effect is not estimated, because depending on certain approaches it may differ significantly). The value of the proposed changes lies primarily in a formalized approach and in eliminating the lack of clarity on a key element of taxation, due to which taxpayers, under the influence of justified (precisely justified) panic, may begin to interpret the application of certain criteria in a court ruling as an absolute signal that all their "unobviously movable" property will be It was soon recognized as immovable, which, in turn, reduces the free cash flow of the enterprise (due to the formation of reserves for estimated obligations) and decreases investment activity (due to a decrease in the attractiveness of expensive capital-intensive projects). The use of a single and unified approach, where hardware departments and ministries will review the relevant document no more than a certain period of time, will significantly reduce such a negative effect and remove the volatility of the current method. At a minimum, this will be achieved by applying a forward-looking approach instead of a retrospective one. The document will be edited "on the date", in other words, all taxpayers will have the opportunity to adjust their tax accounting for the next tax (or reporting) period (recall that at the moment the risk factor includes additional charges for research and development in the form of appropriate amounts of tax, penalties and fines for previous tax periods). As for the actual tax burden, it should be borne in mind that such a document will become another instrument of the tax policy of the executive branch, and its application will differ significantly depending on the current trend of budget constraints. In this regard, the creation of a completely homogeneous and categorical system of property characteristics is unlikely. However, if such a system could still be created, in our opinion, there would be no place for the ENK as a speculative civil law structure. The reason lies in the logical chain of fair property taxation, which the ENK inevitably violates. If we proceed from the concept of stimulating the investment policy of enterprises (and such a task has been formulated in the Russian Federation for many years), then we inevitably refuse to tax production equipment, machines, machine tools, non-capital production facilities, thereby applying an extremely effective measure of horizontal impact on the economic system (moreover, with significant effect in relation to capital-intensive industries, the development of which, by the way, is often considered the highest priority). Thus, only buildings and capital structures will be recognized as the object of taxation, which is historically justified in tax science as a way of additional impact to accelerate their turnover in the format of a mechanism to exclude situations where an already limited number of expensive property objects serve not as a center of attraction for economic growth, but as investment real estate in the in the hands of a limited range of rentiers (the equipment, in turn, is much more susceptible to moral and physical deterioration, which is why it cannot, in principle, be used with the same efficiency for long-term investment purposes). Thus, the very structure of the ENK provides for the taxation of a significant part of production equipment and non-capital structures, which means it cannot be considered as an effective measure in this matter.

Nevertheless, as an alternative, it is important to mention that the ENK can be used in a limited way within the framework of drawing up a delimiting regulatory act in the form of an additional fiscal measure of a tax nature to increase the tax burden of the most profitable sectors of the national economy (for example, extractive industries and individual industries can be considered in this way). This is possible if appropriate links are established between individual inventory items, however, we emphasize that such an approach seems, firstly, technically difficult to implement, and secondly, does not meet the initial prerequisites of this study.

Conclusion

Summing up the results of the study, we will focus on the following conclusions:

1) the problem of distinguishing movable and immovable property, despite the duration of its existence in the legal field, remains relevant. In 2022-2023, another "turning point" of judicial practice is observed in the direction of revising the relatively recently established approach to property valuation. The new approaches do not comply with the fundamental principles of legislative regulation of property taxation;

2) the analysis of macroeconomic statistics has shown the significance of the negative effect exerted by the volatility of the approaches used to determine movable and immovable property for tax purposes, relative to the investment climate in the Russian Federation. It seems reasonable that the settlement of this issue can have a significant positive effect in this direction;

3) the criteria of movable and immovable property, which are most often found in judicial practice, have been studied and analyzed for their compliance with the purpose of correct and harmonious application on a permanent basis in the legislative system. Based on the analysis, the concept of a proposal for improving and unifying the current approach to the characterization of movable and immovable property was presented;

4) the further direction of the development of the topic, in our opinion, lies in the elaboration of technical approaches to the implementation of interdependent relationships of property objects, as well as in identifying and preventing potential risks of the development of a system for regulating the status of a property object for tax purposes.