The tax clause as an instrument for the convergence of private and public regulation

Abstract

A tax clause can be a tool for harmonizing public and private legal interests based on the balance of redistribution of tax risks between taxpayers-counterparties of civil law transactions. Constructing a tax clause in the agreement, the parties confirm the availability of their own resources to fulfill obligations, and also guarantee the validity and legality of the actual executors and co-executors of obligations. The study of legislation research, currently emerging law enforcement and judicial practice allows the authors to classify tax clauses into 2 types: assurances of circumstances with compensation for losses and assurances of circumstances with compensation for property losses. According to the analysis of judicial practice in disputes on compensation for losses (Articles 15, 431.2 of the Civil Code of the Russian Federation) in case of violation of the "assurances" provided for the agreement in the situation of additional VAT charging, it can be concluded that the courts in most cases satisfy the declared property claims. The Supreme Court of the Russian Federation recognizes the plaintiff's right to compensation for losses, qualifying such an action by the taxpayer as legal and justified. That is, if the taxpayer did not realize the expenses and did not apply the VAT deduction, then he has the right to demand the recovery of the corresponding amounts of losses from the persons guilty of causing them. The presence of a tax clause guarantees reimbursement of property losses incurred by the party to the contract as a result of non-compliance with the tax clause when filing claims of tax authorities. The inclusion of tax clauses in the agreemant is reasonable and legitimate if their purpose is not to shift the fiscal consequences to the counterparty of the transaction. Compensation for losses in accordance with Article 406.1 of the Civil Code of the Russian Federation is carried out regardless of the presence of a violation (nonperformance or improper performance) of the obligation by the relevant party and regardless of the causal relationship between the behavior of this party and the damage caused by the occurrence of circumstances determined by the parties. There is no doubt that in a dispute based on Article 406.1 of the Civil Code of the Russian Federation, the norms of Articles 15 and 431.2 of the Civil Code of the Russian Federation are not applicable. Contribution of the authors: the authors contributed equally to this article. The authors declare no conflicts of interests.