Unjustified tax benefit: from the judicial doctrine to the anti-avoidance rule

Abstract

The article analyzes the concept of judicial doctrine. The characteristic features of this legal phenomenon, which is a source of judicial discretion in tax law enforcement, are highlighted and described. The authors state the fact that there is no legal definition that reveals the concept of judicial doctrine. There is a continuing trend towards the active introduction of various doctrines into law enforcement practice, including the field of taxation. The article pays special attention to the doctrine of unjustified tax benefit, specially developed to identify cases of circumvention of the tax law and was (before the appearance of Article 54.1 in the Tax Code of the Russian Federation in 2017) the general anti-avoidance rule (GAAR) in Russia. Based on the study of relevant judicial practice, the article concludes that arbitration courts do not consider the anti-avoidance rule set out in Article 54.1 of the Tax Code of the Russian Federation, as something new, radically different from the doctrine of unjustified tax benefits, as well as about the emergence of serious difficulties for law enforcement officers in the process of filling the anti-avoidance rule (Article 54.1 of the Tax Code of the Russian Federation) with specific content. The authors pay special attention to the problem of the admissibility of tax reconstruction when applying Article 54.1 of the Tax Code of the Russian Federation, concluding in the end that the courts consider it necessary to apply and apply in practice such a tool as tax reconstruction.