Whether presence at an object commercial ̆ forms the real estate of the passport confirming high ̆ a class power ̆ to efficiency of such object the basis for application tax ̆ the privilege provided ̆ by Paragraph 21 of Article 381 of the Tax Code of the Russian Federation?
I will explain my response on the example of a specific case from the jurisprudence.
The tax authority made the decision on involvement of society to responsibility for commission of tax offense which additionally accrued to payment in the budget the property tax of the organization ̆ and the corresponding sums of a penalty fee and penalty.
The fact incomplete ̆ payments of the property tax of the organization ̆ in connection with illegal application by society tax ̆ the privilege provided ̆ by Paragraph 21 of Article 381 of the Tax Code of the Russian Federation and also not reflection in the declaration data ̆ about 24 real estate objects formed the basis for pronouncement of the specified decision.
Believing the rights broken, society filed varbitrazhny ̆ court a petition for recognition of the decision of tax authority illegal.
The decision of arbitration court of the first ̆ instances, left without change resolutions of court appeal ̆ instance and arbitration court of the district, the stated requirements are met.
By vessels it is established that in confirmation of privilege society submitted during check power passports according to which real estate objects have high classes power ̆ efficiency.
Courts noted that classes power ̆ efficiency were appropriated to disputable objects at the moment their introductions to operation that is confirmed by documentation ̆ on reconstruction the building ̆.
On this basis courts came to a conclusion that the passports submitted by society power ̆ efficiency, confirming compliance the building ̆ to a high class power ̆ efficiency, were available also for date of acceptance of objects to accounting after reconstruction.
Thus, courts confirmed the right of society for application tax ̆ the privilege provided ̆ by Paragraph 21 of Article 381 of the Tax Code of the Russian Federation.
The judicial board of the Supreme Court of Rossiiskoi ̆ Federations repealed the called judicial acts and dismissed to society the requirement ̆, having paid attention to the following.
On the basis of Paragraph 21 of Article 381 of the Tax Code of the Russian Federation of the organization are exempted from payment of the property tax concerning again entered objects having high ̆ a class power ̆ efficiency if concerning such objects, according to the legislation of Rossiiskoi ̆ Federations, definition of classes power ̆ efficiency is provided.
From the interrelated provision 2 Part 5 of Article 6, Part 6 of Article 4, Part 1 of Article 10 and Part 1 of Article 12 of Federal Law No. 23 of November 2009 “On Energy Saving and Increasing Energy 261-ФЗ Efficiency and Making Changes to Certain Legislative Acts of the Russian Federation” (further – to Federalnyi ̆ law No 261-FZ) follows that the class power ̆ efficiency as the special characteristic reflecting power efficiency of products is defined concerning goods (Equipment and other movable property) as well as multi-family buildings.
At the same time Federalnyi ̆ law No 261-FZ containing ̆ regulations on compliance the building ̆, the building ̆, a construction ̆ to requirements power ̆ efficiency (Article 11) did not provide definition of classes power ̆ efficiency concerning the specified objects and does not contain any references to subordinate regulations by which rules of assignment of classes power ̆ efficiency to uninhabited real estate objects have to be determined.
Thus, the privilege provided by Paragraph 21 of Article 381 of the Tax Code of the Russian Federation has purpose – stimulation of use of the modern energy efficient equipment, increase power ̆ efficiency inhabited ̆ the real estate, and is not intended for objects commercial ̆ to the real estate.
Mention in itself in Paragraph 3 of the government resolution Rossiiskoi ̆ Federations of January 25, 2011 No 18 “About the approval of Rules of establishment the requirement ̆ power ̆ efficiency for the building ̆, the building ̆, a construction ̆ and the requirement ̆ to rules of definition of a class power ̆ efficiency of apartment houses” (further – Rules) about a possibility of establishment of a class power ̆ efficiency for the building ̆, the building ̆ and a construction ̆, not being apartment houses, according to the solution of a zastroishchik or the owner does not mean that the tax benefit can be extended to such objects.
The establishment of classes of energy 4.5 efficiency of 4 building, which are not apartment buildings, assumed the norms of Item 23-02-2003 of Section _phonetag and Appendix 1 B and D of SNiP 2003 “Thermal Protection of 26 Building,” introduced in the Act of October 2003, 113 by the Resolution of Gosstroy of Russia of June 23-02-2003), _phonetag No.
However criterion for definition of classes power ̆ efficiency the building ̆ in Construction Norms and Regulations 23-02-2003 is the size of a deviation of a calculated (actual) value of a specific expense thermal ̆ energy on heating of the building from standard while power efficiency the building ̆, the building ̆ and a construction ̆ will be defined wider ̆ by set of indicators ̆, the energy resources reflecting specific expenses on heating, lighting the room ̆, ventilation and cooling, including conditioning (item 7 Governed).
Deistvuyushchiya ̆ now set of rules “joint venture 50.13330.2012. Set of rules. Thermal protection building ̆. The revised edition Construction Norms and Regulations 23-02-2003”, the order of the Ministry of regional development Rossiiskoi approved ̆ ̆ Federations of June 30, 2012 No 265, is the edition updated ̆ ̆ Construction Norms and Regulations 23-02-2003, provides establishment of classes of energy saving the building ̆ which are also not equivalent to classes power ̆ efficiency.
Taking into account stated the passports of energy efficiency submitted by the taxpayer concerning real estate objects did not give the basis ̆ for use tax ̆ the privilege provided ̆ by Paragraph 21 of Article 381 of the Tax Code of the Russian Federation.
Application for the purposes ̆ taxation of the power passports made by the taxpayer in a situation when the legislation did not establish criteria for definition of classes power ̆ to efficiency uninhabited the building ̆, the building ̆, a construction ̆ demonstrates to granting individual tax benefits that according to the paragraph the second Paragraph 1 of Article 56 of the Tax Code of the Russian Federation, inadmissibly.