Act on approval of the results of the cadastral value. Challenging acts on the approval of cadastral value as a way to protect the taxpayer rights. President of Russian Federation

1.3. Cadastral value land plots In the cases listed in paragraph 1.2 of these Methodical Instructions, is determined by the authorized government Russian Federation The federal executive body carrying out functions on the state cadastral assessment, or on the basis of the decision of this body, the state budgetary institutions subordinate to it.

Change information:

1.4. The results of the definition of the cadastral value of land plots are reflected in the act of determining the cadastral value of land.

Change information:

1.6. In the event of an education or inclusion in the State Real Estate Cadastre of information about the previously accounted for land use, the act of determining the cadastral value of land plots (attached) is issued for each cadastral quarter, which contains partitioned or conditional land plots, as well as for conventional The cadastral quarter, which houses one land use.

1.7. For the purposes of these guidelines, land plots are divided into groups:

As part of the lands of specially protected territories and objects:

the first group is the lands of specially protected natural territories (with the exception of land as part of the lands of therapeutic and health facilities and resorts); land of environmental protection; land of suburban green zones; land of historical and cultural purposes; Land plots on which there are training trails, tracks; Especially valuable lands.

the second group - the lands of recreational purposes (with the exception of land of suburban green zones and land plots, on which there are training trails and trails), lands of medical and health facilities and resorts;

As part of the Land of Water Fund:

the first group is land plots engaged in separate water bodies in circulation in accordance with the legislation of the Russian Federation;

the second group is land plots engaged in separate water facilities seized from turnover or limited in circulation in accordance with the legislation of the Russian Federation, structures designed to protect against flooding and destruction of the shores of reservoirs, shores and the bottom of River River; structures (dams), engraving the repository of liquid waste of industrial and agricultural organizations; Devices from blurred on channels, as well as other structures intended to prevent the harmful effects of water and liquid waste in the lands of water protection zones of water bodies, as well as land allocated to establish the dispensing bands and zones of water intakes, hydraulic structures and other water treatment facilities and objects ;

the third group is land plots as part of the lands of water protection zones of water bodies, as well as land allocated to establish lanes of the removal and zones of water intakes, hydraulic structures and other water treatment facilities and objects occupied by water supply facilities, fish and hunting facilities, hydraulic structures (for The exception of structures intended to protect against flooding and destruction of the shores of reservoirs, shores and donors River River; structures (dams), engraving storage facilities of industrial and agricultural organizations; devices from blurred on channels, as well as other structures designed to prevent the harmful effects of water and liquid waste), water intake, port and other water facilities and objects;

the fourth group is land plots as part of the land of water protection zones of water bodies, as well as land allocated to establish a waste and zones of protection of water intakes, hydraulic structures and other watering facilities and objects engaged in wood-shrub or other vegetation;

fifth group - land plots as part of the lands of water protection zones of water bodies, as well as land allocated for the establishment of rollers and zones of protection of water intakes, hydraulic structures and other water treatment facilities and objects provided by horticultural, vegetable and country associations;

the sixth group is land plots as part of the land of water protection zones of water bodies, as well as lands allocated to establish bandwidth and zones of waterborne protection, hydraulic structures and other water treatment facilities and objects occupied by recreation objects.

Land plots as part of agricultural land for the purposes of these methodological instructions are divided into formed when conducting the last state cadastral assessment of the group for the types of permitted use.

II. Definition of the cadastral value of land

2.1. Determination of cadastral value in the event of a new or inclusion in the State Real Estate Cadastre of information about the previously accounted for land, as well as in cases of translation land plot From one category to another or assigning a land plot to a certain category of land is as follows.

2.1.1. In the event of a new or inclusion in the State Real Estate Cadastre of information about the previously accounted for land plot as part of agricultural land (with the exception of land plots located within the borders of gardening, gardening and country associations), as well as in the case of a land transfer to the land of agricultural land The first sixth groups of cadastral value is determined by multiplying the average for municipal Area (urban district) The values \u200b\u200bof the specific indicator of the cadastral value of agricultural land appropriate group on the land area.

2.1.2. In the case of the formation of a new or inclusion in the State Cadastre of Real Estate information about the previously accounted for the land plot within the borders of the gardening, gardening or country union, the cadastral value is determined by multiplying the average for the corresponding merge value of the specific indicator of the cadastral value of the land on the land area.

In the case of the formation of a new or inclusion in the State Real Estate Cadastre of information about the previously accounted for gardening, gardening or country union, the cadastral value of the land plot as part of the association is determined by multiplying the average for the municipal district (urban district) (in the absence - for the subject of the Russian Federation) the values \u200b\u200bof the specific indicator of the cadastral value of the land of the corresponding union on the land area.

2.1.3. In the case of the formation of a new or inclusion in the State Cadastre of Real Establishment of the previously accounted for land plot within the borders of the existing settlement, cadastral value is determined by multiplying the value of the specific value of the cadastral value of the land of the appropriate type of permitted use for the cadastral location of the settlement in which the land plot is located on the square Land plot.

In the case of the transfer of the land plot to the lands settlements From the composition of the other category, its cadastral value is determined by multiplying the value of the specific indicator of the cadastral value of the lands of the corresponding type of permitted use for the cadastral district of the settlement, bordering the cadastral quarter, in which the land plot is located on the land area. If the cadastral quarter in which the land plot is located, it borders more than one cadastral district of the settlement, then, to determine the cadastral value of the land plot, the minimum value of the specific value of the cadastral value of the land of the corresponding type of permitted use for the bordering the cadastral quarters is used.

2.1.4. In the case of the formation of a new or inclusion in the State Real Estate Cadastre of information about the previously accounted for land plot as part of the land of industry and other special purposes, classified by the methodology of the state cadastral assessment of land and other special purposes (approved by order of Roszecadastra of March 20, 2003 N P / 49 , by the letter of the Ministry of Justice of Russia dated April 8, 2003, N 07/3354-YUD was recognized as not in need of state registration) to the first - fourth groups, as well as in the case of the transfer of the land plot to the lands of the industry of these groups, cadastral value is determined by multiplying the average for the municipal Area (urban district) (in the absence - for the subject of the Russian Federation) the values \u200b\u200bof the specific indicator of the cadastral value of land plots of the industry of the first, second, third or fourth groups on the land area.

2.1.5. In the case of the formation of a new or inclusion in the State Real Estate Cadastre of information about the previously accounted for land plot in the Fifth Group Lands, as well as in the case of the transfer of a land plot, the Industry lands of this group of the Cadastral value are determined by multiplying the average for the municipal district (urban district) ( In the absence of - for the subject of the Russian Federation), the values \u200b\u200bof the share of the cadastral value of the lands of the second group on the land area.

2.1.6. In the case of the formation of a new or inclusion in the State Real Estate Cadastre of information about the previously accounted for land plot as part of the lands of the industry in the sixth group, as well as in the case of the transfer of a land plot to the lands of the industry of this group, the cadastral value is determined by multiplying the minimum value for the subject of the Russian Federation the values \u200b\u200bof the cadastral The value of the land industry in the sixth group on the land area.

2.1.7. In the event of a new or inclusion in the State Real Estate Cadastre of information about the previously accounted for land plot as part of the land of specially protected areas and objects related to these methodological instructions to the first or second group, as well as in the case of the transfer of the land plot to the lands of specially protected territories and objects These groups of cadastral value is determined by multiplying the average for the municipal district (urban district) (in the absence of a subject of the Russian Federation) the values \u200b\u200bof the specific indicator of the cadastral value of the land of highly protected territories and objects of the first or second groups on the land area.

2.1.8. In the case of the formation of a new or inclusion in the State Real Estate Cadastre of information about the previously accounted for land plot as part of the forest Fund lands, as well as in the case of the transfer of the land plot, the cadastral value is determined by multiplying the medium for leshoz, within the boundaries of the land plot ( In the absence of a subject of the Russian Federation), the values \u200b\u200bof the specific indicator of the cadastral value of forest lands on the land area.

2.1.9. In the case of the formation of a new or inclusion in the State Real Estate Cadastre of information about the previously accounted for land plot as part of the Lands of the Water Foundation, attributed by these Methodological instructions to the first group, as well as in the case of the transfer of a land plot to the Land of the Water Foundation of this group, the cadastral value is determined by multiplying the average For the municipal district (urban district) (in the absence of - for the subject of the Russian Federation), the values \u200b\u200bof the specific indicator of the cadastral value of the land of the water fund of the first group on the land area area.

2.1.10. In the case of the formation of a new or inclusion in the State Real Estate Cadastre of information about the previously accounted for land plot as part of the Land of the Water Foundation, attributed by these Methodological instructions to the second group, as well as in the case of the transfer of a land plot to the Land of the Water Foundation of the specified group of cadastral value, is determined by multiplying the average For the municipal district (urban district) (in the absence of - for the subject of the Russian Federation), the values \u200b\u200bof the share of the cadastral value of agricultural land on the land area.

2.1.11. In the case of the formation of a new or inclusion in the State Real Estate Cadastre of information about the previously accounted for land plot as part of the Lands of the Water Foundation, assigned by these Methodological Guidelines for the Third Group, as well as in the case of the transfer of the land plot to the Land of the Water Foundation of this group, the cadastral value is determined by multiplying the average For the municipal district (urban district), the values \u200b\u200bof the specific indicator of the cadastral value of the land plots of the relevant group on the land area.

2.1.12. In the event of a new or inclusion in the State Real Estate Cadastre of information on the previously accounted for land plot as part of the land of the water fund, attributed by these Methodological instructions to the fourth group, as well as in the case of the transfer of the land plot, the cadastral value of the Water Foundation land is determined by multiplying the minimum For the municipal district (urban district), the values \u200b\u200bof the specific indicator of the cadastral value of the agricultural land of the group corresponding to the type of permitted use of the land plot on the land area.

2.1.13. In the case of the formation of a new or inclusion in the State Real Estate Cadastre of information about the previously accounted for land plot as part of the Lands of the Water Foundation, attributed by these Methodological instructions to the fifth group, as well as in the case of the transfer of a land plot to the Land of the Water Foundation of this group, the cadastral value is determined by multiplying the average For the municipal district (urban district) (in the absence of a subject of the Russian Federation) the values \u200b\u200bof the specific indicator of the cadastral value of land plots within the boundaries of the gardening, vegetable or country union on the land area.

2.1.14. In the case of the formation of a new or inclusion in the State Cadastre of Real Estate Information about the previously accounted for land plot as part of the Lands of the Water Foundation, assigned by these Methodological Guidelines for the Sixth Group, as well as in the case of the transfer of a land plot to the Land of the Water Foundation of this group, the cadastral value is determined by multiplying the average For the municipal district (urban district) (in the absence of the subject of the Russian Federation), the values \u200b\u200bof the specific indicator of the cadastral value of the land of specially protected territories and the objects of the second group on the land area.

Change information:

2.4. In the event that the formation of a new land plot, a change in land area, a change in the type of permitted use of the land plot, the translation of the land plot from one category to another, assigning a land plot to a certain category of land or inclusion in the State Real Estate Cadastre of information about the previously accounted land plot occur (occurred) after the date, as of which the cadastral value of land plots is determined during the last state cadastral assessment, and before approving its results, the cadastral value of these land plots is determined after the approval of the results of the state cadastral land valuation on the basis of the indicated results.

Change information:

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/ "Taxes" (newspaper), 2009, N 35 /
V. Duck

Duck V., lawyer.

The overwhelming majority of disputes related to tax issues occur in the challenge plane by the taxpayer of actually actions (solutions) of tax authorities.

At the same time, no smaller problems arise in areas related to taxation, but directly affecting it. In particular, in the field of cadastral accounting of land plots, cadastral data on which, especially the cadastral value of the land plot, serve as the basis for determining the taxable land tax base.

Consider some of them.

Introductory comments

By virtue of Art. 390 Tax Code of the Russian Federation The tax base of land tax is defined as the cadastral value of land plots recognized by the object of taxation.

To establish the cadastral value of land plots, the state cadastral land assessment is carried out (Art. 66 of the Land Code of the Russian Federation). The rules for conducting the state cadastral assessment of land, approved by Decree of the Government of the Russian Federation dated April 8, 2000 N 316 (as amended from 17.09.2007 N 590), it was determined that the results of the state cadastral assessment of land are approved by the executive authorities of the constituent entities of the Russian Federation (p. 10).

The procedure for maintaining the State Cadastre of Real Estate, including the introduction of information about its cadastral value, is determined by the order of the Ministry of Justice of the Russian Federation of February 20, 2008 N 35.

In accordance with the above acts, the cadastral value of the land plot:

• determined by the authorized organization;
• approved by the executive authority of the constituent entity of the Russian Federation on the representation of territorial cadastral bodies;
• it is brought to note the taxpayer who independently guided by the received data is calculated by land tax.

Each of the marked stages of tax (and related to it - cadastral administration allows you to identify a number of questions, the answers to which will not only optimize the work of state, including jurisdictional, bodies, but also contribute to the increase in the level of financial discipline as from the tax authorities, so And above all - taxpayers.

Disorders of disputes

As already noted, the results of the cadastral assessment are approved by an authorized state body and communicate with the taxpayer in accordance with the procedure established by law (this is from now on, they acquire the property of the obligation, characteristic of any regulatory legal act, and accordingly arises the possibility of challenging them).

Even in the resolution of the Plenum of the Supreme Court of the Russian Federation dated November 29, 2007 N 48 "On the practice of consideration by the courts of cases of challenging regulatory legal acts, it was noted that there were significant signs characterizing the regulatory legal act, the publication of it in the prescribed manner A controlled body of state authorities, local government or an official, the presence of legal norms (rules of conduct), mandatory for an indefinite range of persons designed for repeated use aimed at resolving public relations or to change or terminate existing legal relations (clause 9) .

This definition is guided and the courts of arbitration.

The assignment of an act on the approval of the cadastral assessment to the number of regulatory is generally recognized and is not discussed in either theory or in tax practice.

Accordingly, the problem of challenging the cadastral assessment of the land plot begins with common questionarising from the judicial appeal of the regulatory act - the issue of jurisdiction.

Judicial practice consistently proceeds from the fact that the competence of arbitration courts include consideration of applications for invalid legal acts, including regulatory legal acts, if such a statement is filed by an organization or citizen who believe that the challenge regulatory legal act violates their rights and legal Interests in the field of entrepreneurial and other economic activity (p. 9 information letter Presidium of the Supreme Arbitration Court of the Russian Federation of 13.08.2004 No. 80).

At the same time, on cases of challenging regulatory legal acts, courts should be checked, whether the federal law is available, which should consider such cases to their competence (clause 3 of Article 191 of the APC RF, Art. 245 Code of Civil Procedure of the Russian Federation).

The law that admits invalid acts on approving the cadastral value of land plots in arbitration courts is absent.

But how to be in those situations when, despite the initiality of the dispute, the case was still considered by the arbitration court?

Equally, in this respect, the decision of the arbitral tribunal, in order to prevent the refusal to the justice of the law to be discussed and considered by the letter of the law on challenging the regulatory legal act adopted by the state body of the constituent entity of the Russian Federation in connection with the refusal of the court of general jurisdiction to adopt the declared dispute for consideration ( see: Determination of the Supreme Arbitration Court of the Russian Federation of 30.06.2008 N 6694/08 and the Resolution of the FAS of the North-West District of March 13, 2008 in case No. A21-2860 / 2007).

This approach seems to be faithful not only to ensuring real access to justice to the subjects of economic turnover, but also providing a more qualified consideration of the dispute in a specialized judicial instance.

The need to concentrate all economic disputes (namely, disputes associated with the cadastral value of the land plot can be attributed to them, and the tasks of tax practice) in arbitration jurisdiction are the task of priority for the reform of the judicial system at the present stage.

Such a tendency, most clearly traced in corporate practice, should receive its early continuation and in the field of taxation.

Of course, this circumstance should in no way influence another aspect of the problems of protecting the violated right - on the choice of the interested person of the proper protection method (justice, we note that the displacement of the emphasis in the defense of the rights from "the choice of a proper way to protect the right" to " Justice for the unfairness of the dispute "recently meets less and less).

Regardless of the decision of the issue of jurisdiction, the requirements for the establishment of cadastral value in a certain amount ", no obligation, such as the cadastral value of these land plots of 100% of them market value"who have gained widespread in practice (about the further let's say in more detail).

In the same cases when an arbitration court in accordance with exceptional jurisdiction ( art. 138 of the Tax Code of the Russian Federation, the Decision of the Presidium of the Court of the Russian Federation of 04.10.2005 No. 7445/05) The case of appealing the tax authority's act and, in the form of a separate requirement, the results of the cadastral assessment are challenged, the proceedings in this part are subject to termination, if the taxpayer refers to the wrong definition of a taxable base, leading to the argument of incorrect instructions of cadastral value, its The arguments are estimated along with other evidence in the case when resolving the dispute is essentially.

The magnitude of the cadastral value and its ratio with the assessment of the market value of the land

According to a fair comment N.A. Lunina: "For successful administration of land tax, it is necessary to develop such a concept as cadastral value ... The lack of the concept of the cadastral value of the land plot indicates the invertation of such an element of taxation as the tax base" ( Lunina N.A. The need to change in approaches to the definition of the cadastral value of land plots for the successful administration of land tax // Tax administration. Yearbook. 2007. Statute, Mafp, Pepeliaev, Golzblat and Partners, 2008. P. 180).

The priority is the question that is not directly related to the procedure for tax control, and the more informative nature of the correctness (validity) of the calculation of the cadastral value and the possibility of its subsequent revision (in the non-compliance of this particular criterion), including in court.

So, as already noted, the cadastral value of the land plot (paragraph 5 of Article 65 of the Land Code of the Russian Federation) is established for tax purposes (paragraph 5 of Article 65 of the Land Code of the Russian Federation). In accordance with paragraph 2 of Art. 66 of the named Code at the same time the state cadastral land assessment is carried out.

At the same time, the contractor works on the cadastral assessment of land general rule There are organizations that have a license to implement appraisal activities (the possibility of attracting facilitated persons with a license to implement appraisal activities is provided for in the decision of April 8, 2000 N 316 (as amended by September 17, 2007)).

The implementation of the "technical component" of the cadastral assessment of land plots by entities, also carrying out activities in the market assessment of property, in no way allows us to conclude a direct relationship of cadastral and market value ( despite the fact that the state cadastral land assessment is based, among other things, and on the analysis of market prices: Art. 7 of the Federal Law of July 29, 1998 N 135-FZ "On Assessment in the Russian Federation", paragraph 5 of the rules for the state cadastral assessment of land, approved. Decree of the Government of the Russian Federation of 08.04.2000 N 316, paragraph 2.2.5 of methodological instructions on the State Cadastral Assessment of Lands of Locations, UTV. Order of the Ministry of Economic Development of Russia of 15.02.2007 N 39).

At the same time, references to the "mismatch of the methodology for determining the cadastral value established by the rules", as well as on its "unreasonableness" (as a general rule implies its inconsistency in market value) are found in almost every conflict with the tax authority relating to the taxable land tax base (considered either in an independent manner or derived from the question of arrears and sanctions).

How appropriate such arguments are?

The Land Code of the Russian Federation distinguishes two types of land plot - cadastral and market.

At the same time, it is established (paragraph 5 of Art. 65 of the Land Code of the Russian Federation, paragraph 1 of Art. 390 of the Tax Code of the Russian Federation) that the cadastral value is determined for the purposes of taxation.

In art. 66 of the Land Code of the Russian Federation directly stipulate that the market price of the land plot is established in accordance with the Federal Law on Evaluation Activities, and the state cadastral assessment of land is carried out to establish cadastral value, i.e. Methodologically, the definition of these indicators is different, incl. and at the legislative level.

It should also be borne in mind that neither federal laws nor the laws of the constituent entities of the Russian Federation, as well as other legal acts, is not provided for the obligation to recheck the results of the cadastral assessment (it seems that the authority of the courts, when considering cases of challenging regulatory legal acts, is also not included in the validation and procedure for corresponding calculations).

The same assessment standards proceed from the determination of the market value of the assessment object as the most likely price, in which the assessment object can be alienated, and given in the standards of cost types other than the market, including the cost of the object for tax purposes: Defined for the calculation of the tax base and calculated in accordance with the provisions of regulatory legal acts, i.e. The value other than the price "Sales" ( market assessmentwhich depends on the demand and supply of the market and the nature of the competition of sellers and buyers (the principle of supply and demand) changes in time and is determined on specific date (the principle of change)); Cadastral value - "Economic assessment, reflecting the economic value of the territory, depending on the target and the type of functional use."

The Federal Law "On Assessment in the Russian Federation" also contains only the definition of the concept of market value (Article 3). Article 7 of this Law establishes that the market value of the assessment object is established only In the event that in the regulatory legal act containing the requirement of the mandatory evaluation, the specific type of value of the assessment object is not defined.

Thus, the identity of the cadastral value of the land plot and its market value, and, as a result, there are no and guidance on the possibility of arbitrary replacement of the cadastral value of the land plot of its market value.

Additionally, we note that the legislation does not contain the indication that the cadastral value of the land plot should not exceed its market value, nor the fact that the cadastral value of the land plot must be as close as possible to its market value.

Even when confirming the inconsistency of cadastral value indicators market prices This circumstance cannot be proof of retreat from the requirements of the legislation.

In the same cases, when a cadastral assessment of land plots was not collected sufficient and reliable information about them, necessary for the state cadastral land valuation, which led to the inaccessibility of the cadastral assessment as such (regardless of its market value ratio), should be taken into account that the recognition of unreliable results of the state cadastral assessment does not predesend the issue of recognition of the cadastral value of the controversial land plots of their market value, and even more so - the obligation to include in the land inventory information about the cadastral value of these areas equal to their market value ( on the possibility of a judicial audit of the calculation of the cadastral value: Determination of the Supreme Court of the Russian Federation of 19.09.2007 N 45-G07-17).

Another question is the obligation of the body that made a violation of the rights and legitimate interests of the landowner taxpayer, actually eliminate the violations, including the proper state cadastral assessment of the land and its coercion to the execution of this obligation, among other things, through the formation at the federal level (possibly - within the framework of Rosreestra) an independent complex cadastral (with related - financial and economic and land management research) examination, the results of which can be used in the process of tax control, and in legal proceedings ( it should be noted that it was precisely the forced fulfillment of judicial acts in, it would seem, the most acute problem of tax practice is currently the most acute problem, which is once again drawn attention to the article L.V. Kravchinsky "New lessons of an old case, or you ignore - 2" // Tax. 2009. N 6. P. 59 - 66).

/ "Taxes" (newspaper), 2009, N 36 /

About "proper publication"

If the question of compliance of the cadastral value of the market inevitably arises when trying to dispute the actions of tax authorities in essential criteria, then, noting the formal criteria for the protection of the rights of the landowner-taxpayer, attention should be paid to the following.

By virtue of paragraph 14 of Art. 396 Tax Code of the Russian Federation According to the results of the state cadastral assessment of land, the cadastral value of land plots is to be brought to the attention of the taxpayer in the manner determined by local governments.

As a general rule, this publication in the local printed body, with the proper implementation of which the law binds the opportunity for the taxpayer to "independently calculate and pay land tax" (Article 390 of the Russian Federation), although the law does not exclude the use of other ways to bring the information.

What publication (message method) can be considered "appropriate"?

The main criterion here is one - the placement of information is carried out in open and affordable sources, including on the official website of the local government, in the reference legal system, on a stand or in any other way, while the taxpayer must be provided with the opportunity to familiarize themselves with the full text of the regulatory act On approval of cadastral value and applications to it.

In itself, publishing, for example, the relevant decision without applications is not a violation of the constitutional principle enshrined in Art. 15 of the Constitution of the Russian Federation (any regulatory legal acts affecting the rights, freedoms and obligations of a person and a citizen cannot be applied if they are not officially published for universal information), since in relation to the results of the state cadastral land valuation by law, the law establishes a different procedure for their reconciliation Taxpayers and in the proof of violation of the rights and interests of the taxpayer, they are subject to recovery, including in court.

According to paragraph 14 of Art. 396 of the Tax Code of the Russian Federation on the results of the state cadastral land valuation The cadastral value of land plots as of January 1 of the calendar year is to be brought to the attention of taxpayers in the manner determined by local governments (the executive bodies of the state power of the cities of the federal significance of Moscow and St. Petersburg), No later than March 1 of this year. The very definition of this order also causes many issues.

Article 47 of the named law provides that municipal legal acts come into force in the manner prescribed by the charter of the municipality, with the exception of regulatory legal acts of representative bodies of local government on taxes and fees that come into force in accordance with the Tax Code of the Russian Federation. Municipal legal acts affecting the rights, freedoms and responsibilities of a person and a citizen come into force after their official publication (publication). The procedure for publishing (publishing) of municipal legal acts is established by the charter of the municipality and should provide the opportunity to familiarize themselves with them, with the exception of municipal legal acts or their individual provisions containing information, the dissemination of which is limited by federal law.

The official publication of the regulatory legal act is considered to publish its full text in the state language of the Russian Federation in the fact mass mediawhich is defined as an official periodical publication that implements the publication of regulatory legal acts adopted by this body or official.

Considering that the purpose of the official publication of the regulatory act is to ensure the opportunity to familiarize themselves with the content of this act by those persons, the rights and freedoms of which it affects, in exceptional cases, in the absence of a periodic publication in the public education, which undertakes to publish regulatory legal acts adopted in this public education. , and when publishing a challenged act in another print edition of or publishing an Act (for example, in the manner prescribed by the constituent documents of public education), it is necessary to verify whether public education and other persons have been ensured, whose rights and freedoms affects the adopted act, the opportunity to familiarize himself with his content. If such an opportunity was provided, the procedure for publishing a regulatory legal act cannot be recognized as violated on the motive of publication not in the print edition or bringing it to the attention of the population in a different order.

So, in judicial practice there was a practice, according to which: the loss of evidence of publication or publication of the regulatory act in itself does not indicate that interested persons were not provided with the opportunity to familiarize themselves with its content, equally - even the absence of a source of publication does not affect the property of the regulativity of the published act And does not violate the rights of the taxpayer, "performing the prescription of this act and paying taxes for a long time."

This approach seems to be true, although it is possible, not in the entire corresponding letter of the law.

It should be borne in mind that if the regulatory act is recognized as an unpublished judicial proceedings, it is subject to termination, since an unpublished regulatory act does not entail the legal consequences as not to effectively and, therefore, cannot violate the rights and legitimate interests of the applicant in the field of entrepreneurial and other economic Activities cannot impose any obligations on him ( the procedural problems arising in this case are discussed in the article I.R. Medvedev "challenging unpublished (unregistered) regulatory legal acts: the last practice of the Supreme Court of the Russian Federation" // Arbitration and Civil Procedure. 2008. NN 11, 12; Expressed at the same time the author of the proposal for amendments to Part 1 of Art. 251 Code of Civil Procedure of the Russian Federation and the resolution of the Plenum of the Supreme Court of the Russian Federation of 29.11.2007 N 48 "On the practice of consideration by the courts of cases of challenging the regulatory legal acts in whole or in part" seems reasonable and deserve support).

The specified rule applies when challenging the actual act on approval of the cadastral value of the land plot. In the event that this argument is accompanying in the tax dispute, this act is assessed by the court when deciding as one of the evidence in the case.

It should also be borne in mind that in accordance with paragraph 14 of Art. The 396 Tax Code of the Russian Federation determined the procedure that the cadastral value of land plots as of January 1 of the calendar year is to be brought to the attention of taxpayers no later than March 1 of this year. This norm is special in relation to the norms of the first Tax Code of the Russian Federation, by virtue of which is subject to direct use and cannot be recognized as contradictory provisions of paragraph 1 of Art. 5 of the Tax Code of the Russian Federation.

According to the position of financial bodies, if the cadastral value of the land plot and the procedure for bringing it to taxpayers are defined, but the cadastral value of the land plot is not brought to the attention of the taxpayer in the prescribed manner, the taxpayer is obliged to submit to the tax authorities "zero" tax declaration (tax payments for advance payments ), and after receiving official information about the cadastral value of land plots in the manner prescribed by local governments, to submit a refined tax declaration.

In the case when the tax (advance payments for the tax), the taxpayer is not paid on time on reasons independent of it ( not approved, not communicated cadastral value of the land), the accrual of penalties for each day of the delay in the execution of the obligation to pay the tax (advance payments for tax) should not be made (the letter of the Ministry of Finance of Russia dated June 6, 2006 No. 03-06-02-02 / 75).

It does not take into account the provisions of paragraph 1 of Art. 391 of the Tax Code of the Russian Federation, which establishes that the tax base is determined in respect of each land plot as its cadastral value as of January 1, which is a tax period.

Article 393 of the Tax Code of the Russian Federation provides that the tax period recognizes the calendar year.

If the cadastral value of specific land plots was not timely determined, then this circumstance does not allow the taxpayer to determine the tax base in the form of the cadastral value of land plots.

Clause 1 Art. 5 of the Tax Code of the Russian Federation provides that acts of legislation on taxes and fees of constituent entities of the Russian Federation and regulatory legal acts of representative bodies of municipal entities that enter taxes will take effect on January 1 of the year following the year of their adoption, but not earlier than one month from the date of their official publication.

Since in accordance with paragraph 6 of Art. In the establishment of taxes, all elements of taxation should be determined when taxing, and acts of tax legislation and fees should be formulated in such a way that everyone knew exactly what taxes (fees), when and in what order it should pay, the tax is considered to be In the event that all elements of tax are installed, allowing you to calculate the amount of tax.

Consequently, and its own proposal to the tax authority of the land tax under the above circumstances is unlawful.

Fix "Technical Error" as an alternative way to protect the right

Perhaps the most effective way Tax optimization in the field of land relations is the ability to adjust the amount of payments during the tax period due to the correction of the so-called technical error in the cadastre, by using the procedure provided for by Art. 28 of the Federal Law "On State Real Estate Cadastre" (from 24.07.2007 N 221-FZ).

Often, this method of protection of the right is the most effective and at the same time the most corrupt exhaustion (which is connected, in our opinion, first of all, with the exception of the actual tax authorities from the relevant procedure).

So, one of the most important problems arising in connection with the calculation and payment of land tax is the question associated with the possibility of resizing a taxable base during the tax period.

In art. Art. 52, 54 and 396 of the Tax Code of the Russian Federation is indicated for independent calculation of taxpayers of the tax amount payable for the tax period, based on the tax base, tax rate, tax breaks and on the basis of documented data on objects to be taxed or related to taxation (in this case, The amount of the tax specified by the taxpayer in tax returns should be reliable corresponding to the objectively existing obligation to pay the tax to the budget established on the basis of real and properly defined tax objects).

The tax base is determined by the taxpayer independently - as its cadastral value as of January 1 of the year, which is a tax period (Art. 391 of the Tax Code of the Russian Federation).

Whether the taxpayer is legally determined by the taxpayer (filling the tax declaration), indicating the cadastral value of the land plot, based on the indicator reflected in the cadastral, but guided by another criterion - for example, determined on the basis of the actual use of the land plot (as a taxpayer) other than its understanding "Allowed" fixed in cadastral documentation?

The principle of cadastral accounting is well known, according to which the change in the type of permitted use of the land plot entails a change in the cadastral value of the land plot.

According to the general rule established in paragraph 1 of Art. 391 and p. 12 and 14 art. 396 Tax Code of the Russian Federation, the tax base, the size of which depends on the valuation of the land plot (cadastral value) is determined at a specific date (January 1, which is a tax period) and cannot for tax purposes change during the tax period (including depending on the transfer of land from one category to another, changes in the type of permitted use of the land section).

Thus, in case of change during the tax period, the type of permitted use of the land plot, when calculating land tax regarding such a land plot, the tax rate must be applied established for the type of permitted use of the land plot, in accordance with which the cadastral value of the land plot is determined as of January 1, which is a tax period.

The tax base can not be arbitrarily changed during the tax period, in connection with which such changes as the transfer of land from one category to another, a change in the type of permitted use of the land, affecting the magnitude of the cadastral value of the land plot and occurred during the tax period are taken into account when The determination of the tax base, which will be applied to calculate the land tax in the following tax period.

Another case, if the change in the results of the state cadastral assessment of the Earth occurred due to the correction of technical errors, the court decision, etc., made by the inverse number on January 1, which is a tax period.

In this case, the tax rate on land tax is subject to use with such correction (this position is reflected by the Ministry of Finance of the Russian Federation in letters from January 29, 2009 No. 03-05-06-02 / 05, from 18.12.2008 No. 03-05-05-02 / 91, from 16.08.2007 No. 03-05-07-02 / 81 and from 05.09.2006 No. 03-06-02-02 / 120).

The taxpayer is deprived of the opportunity to arbitrarily identify the types of permitted use by the real estate belonging to it (and accordingly to calculate the taxable base, guided by other criteria, rather than those that are fixed in the cadastre). At the same time references to " general principles tax legislation, by virtue of which "tax liabilities should be based on the real economic grounds" (which everywhere takes place in the event of a "actual" and "permitted" use of sites and more preferential taxation in the first case), cannot be recognized as acceptable (as confirmed numerous examples of administrative and judicial practice).

However, when considering the issue of arbitrary definition by the taxpayer of a taxable base, it will be established that initially incorrect information was made to the cadastre, regardless of the timeliness of their adjustment (which can be carried out and after conducting control measures by the tax authorities) of the grounds for the use of measures to landow There are no tax liability.

What order could be eliminated by an error made in the cadastre?

The main problem in such situations is to classify the mistake of the mistake as "technical", as well as complying with the taxpayer of the established procedure for its correction (essentially the question of what actually takes place: correction of the error or a change in the type of permitted use of the land plot).

Federal Law "On State Cadastre of Real Estate" (dated 24.07.2007 N 221-FZ) determines the technical error as "superview, typo, grammatical or arithmetic error or similar An error made by the authority of cadastral accounting in the conduct of the State Cadastre of Real Estate and led to the inconsistency of information included in the State Cadastre of Real Estate, information in the documents, on the basis of which information was made to the State Cadastre of Real Estate (technical error in information) "- PP. 1 p. 1 Art. 28.

Along with this, the law also gives the definition of "cadastral error in information" (reproduced in the state real estate cadastre Error in the document, on the basis of which information was made in the cadastre) - PP. 2 p. 1 Art. 28.

The previously existing definition seems more successful because, without distinguishing persons who admitted violations - the cadastral body, or third parties, noted the entity characteristic of the error: the inconsistency of the inventory information in the primary documents ("under a technical error made in the conduct of the State Land Cadastre, a mistake is understood. Leading to the inconsistency of information included in the main documents of the cadastre, duty cadastral maps (plans), data contained in the applicant submitted documents that were the basis for making this information in the State Land Cadastre "- a letter Federal Agency Cadastre of real estate objects dated 21.04.2006 N VK / 0556).

Thus, the editors of Art. 28 of the Federal Law "On State Cadastre of Real Estate" allows you to make changes to the inventory with the tax consequences that have previously arise when correcting the "technical error", not only in relation to such cases, but first of all, when the "cadastral error" is corrected (which is practical meets more often).

The main question and when correcting the "technical error" actually, and when making changes to the inventory in connection with the "cadastral error in the information" is as follows.

With the adoption of the Law "On State Cadastre of Real Estate", the error in the information (in terms of its cadastral component) can be fixed on the basis of a court decision, on demand anyone Persons or any organ (paragraph 5 of Art. 28 of the Law) (the requirement of the applicant's interest as a condition for the implementation of its right to appeal to judicial protection, is definitely subject to accounting and in such cases).

It seems that such an interested party may be a tax authority, which in its activities should be guided by reliable inventory in the exercise of tax control.

Equally, the "technical error" can be corrected by the cadastral authority at the request of the tax authority, the interest of which does not cause any doubts (paragraph 2 of Art. 28 of the Law) (see also: p. 2.2 of clarifications on the correction of technical errors allowed by Definition of the cadastral value of land plots that are objects of taxation, and informing the tax authorities and other persons who have relying on the relevant entries in the State Land Cadastre, Appendix N 1 to the letter of Rosnedvizhimost's management in the Moscow region of 12.03.2007 No. 2717-1).

The estimated characteristic - the cadastral value came to replace the inventory and market value, which one object was expressed in completely different numbers, in particular, the inventory was significantly lower than the market. This led to the emergence of disagreements when selling, inheritance, division of real estate and conducting other operations of the property order. In addition, there was a clear undecloser of taxes paid for the use of land and objects located on Earth, since the tax rate was applied to the inventory value. To establish a market value, it would be necessary to have a huge amount of funds with which the bodies of municipal authorities do not have.

Methodology for the definition of cadastral value

Cadastral value should smooth out discrepancies with market value. The method of its definition is based on the use of available information (BTI data), as well as the use of analyzes, comparisons and generalizations. The initiative of activities for calculating cadastral value is entrusted to local executive. She clarifies the list of objects and the organization to which the whole range of works will be entrusted.

The result of the appraisers, becomes an act of approval of cadastral value. The act will appear the objects recorded earlier on the territory of a municipal association.

Legal assistance in cadastral disputes

Operational advice on the phone or in the office of the Bureau

Land Department Lawyer - Help Specialist in Cadastral Disputes

Revision of cadastral value

• carried out on the initiative of the executive branch no more than 1 time in 3 years, but at least 1 time in 5 years;
• it is carried out at the initiative of a person who does not consist with the cadastral value of the object.

Revision on the initiative of interested parties whose interests affected cadastral value, substantiates the presence of weighty arguments, in particular, the presence of unrecorded or inaccurate characteristics or the presence of a market value derived from the initiative of the owner authorized by the authority.

Cadastral Calculation Act

There are situations, the formation of objects after holding the next cadastral assessment, or there are facilities undergo significant change, for example, overhaul. In this case, the cadastral value will be determined by the methodology developed by the Ministry of Economic Development of Russia. The methodology is approved by the relevant order (No. 113 of 03/18/2011). Data, in this case, is reflected in the document called - the act of determining the cadastral value of the property. The resulting cadastral value will be clarified when conducting another mass assessment.

Property tax

Real estate tax, calculated on the basis of cadastral value, concerns not only legal entities, but also ordinary citizens, including those registered as individual entrepreneurs. But if legal entities, such a tax charge has already touched, then in relation to individuals, it will be applied, since 2015, the tax rate before the planned level will be introduced gradually.

According to law. In cases of cadastral disputes, you have the right to reimbursement of financial spending and legal costs, as well as compensation for moral damage, providing them in court.

State cadastral assessment is carried out by the decision of the executive body of the public authority of the constituent entity of the Russian Federation not more than three years (in the cities of federal significance - no more than once every two years) and at least once every five years, with the exception of the extraordinary state cadastral assessment . This period is determined from the date of adoption of the act on approval of the results of the definition of cadastral value until the day of adoption of the Act on approval of the following results of the definition of cadastral value.

In accordance with the order of the Ministry of Property Relations of the Moscow Region dated November 30, 2011 No. 13VR-1766 "On the conduct of the State Cadastral Assessment of the State Budgetary Institution of the Moscow Region" Center of Cadastral Assessment "in 2018, a state cadastral assessment is carried out in relation to all types of real estate objects, as well as all Land categories located on the territory of the Moscow region, with the exception of categories of land fund land.

State cadastral assessment is carried out in respect of real estate objects specified in the decision to conduct a state cadastral assessment.

The list of real estate objects subject to state cadastral is formed by Rosrester on the basis of a decision on the conduct of state cadastral assessment.

The list includes the information of the Unified State Register of Real Estate, relevant as of January 1, the definition of cadastral value, except for holding an extraordinary state cadastral assessment to another date. The list also includes other information and materials in the amount determined by the procedure for the formation and provision of the list.

In order to collect and process information necessary to determine the cadastral value, the right holders of real estate objects have the right to provide the budget institution of the declaration on the characteristics of the respective real estate objects. The procedure for considering the declaration on the characteristics of the property object, including its form, approved by order of the Ministry of Economic Development of the Russian Federation of December 27, 2016 N 846.

1. Definition of cadastral value and drawing up a report on the results of the state cadastral assessment.

The definition of cadastral value is carried out in accordance with methodical instructions About state cadastral assessment.

According to the results of the definition of cadastral value, with the exception of the extraordinary state cadastral assessment, the budget institution in accordance with the requirements for the report are drawn up in the form of an electronic document Interim reporting documents that are a draft report.

In case of conformity of interim reporting documents, the requirements for the report of the Rosreestr within three working days from the date of the end of the verification of interim reporting documents places information and materials contained in the interim reporting documents in the amount provided for by the procedure for maintaining the State Cadastral Assessment Fund for the State Cadastral Assessment Fund , as well as information about the placement of such documents on the official website of the budget institution in the information and telecommunication network "Internet" by sixty days to submit comments related to the definition of cadastral value, information about which is contained in intermediate reporting documents.

Comments are presented within fifty days from the date of placing these information and materials by anyone interested persons in the budgetary institution or a multifunctional center for the provision of state and municipal services.

The budgetary institution makes changes to the interim reporting documents on the basis of consideration of the comments on them no later than the expiration of information and materials in the data fund and within ten days after the expiration of the specified period is a report comprising a certificate with information about recorded and unaccounted comments to the intermediate Reporting documents with the rationale for their accounting, refusing or no comments, as well as the correction of violations of reporting requirements identified by the Rosrester.

During the twenty working days, the Rosreestr checks the report for compliance with the requirements for the report and sends to the budgetary institution and the Ministry of Property Relations of the Moscow Region The order to eliminate the identified violations or notification of the absence of violations.

In the absence of violations, the budgetary institution within three working days from the date of receipt of the notice of the absence of violations sends three instances of the report on electronic media in the form of an electronic document to the Ministry of Property Relations in the Moscow region and one copy of the report on paper.

1. Approval of the results of the definition of cadastral value.

The Ministry of Property Relations of the Moscow Region During the twenty working days from the date of receipt of the report, the results of the cadastral value determination of cadastral value contained in such a statement by adopting an appropriate act on the approval of the results of the cadastral value and within thirty working days from the date of adoption of such an act provides its official publication and informing About his acceptance.

The act of approving the results of the definition of cadastral value enters into force on January 1 of the year, following the year of the state cadastral assessment, but not earlier than on the expiration of one month from the date of its publication (official publication).

The Ministry of Property Relations of the Moscow Region within three working days from the date of the official publication of an act of approving the results of the definition of cadastral value, but no later than December 1 of the year of the state cadastral assessment sends it a copy and an instance of the report compiled on electronic media in the form of an electronic document to Rosreestr For the introduction to the Unified State Register of Real Estate information about the cadastral value and placement in the State Cadastral Evaluation Fund.

1. The authorized body of the constituent entity of the Russian Federation during the twenty working days from the date of receipt of the report approves the results of the definition of cadastral value contained in such a statement by making an appropriate act on approving the results of the cadastral value.

2. The results of the definition of cadastral value cannot be approved if the violations identified by the registration authority in accordance with Article 14 of this Federal Law are not eliminated.

3. The authorized body of the constituent entity of the Russian Federation, who decided to conduct a state cadastral assessment, during the thirty working days from the date of adoption of the act on approval of the results of the definition of cadastral value ensures its official publication and informing its acceptance by:

1) placement of notice on its official website in the information and telecommunications network "Internet";

3) placement of notifications on their information panels;

4) directions of information to the registration authority for the placement of notice on information shields of the registration authority, as well as in the State Cadastral Evaluation Data Fund;

5) directions of information into local governments of municipalities located on the territory of the constituent entity of the Russian Federation to place notice on the information shields of these bodies.

4. The act of approval of the results of the definition of cadastral value enters into force on January 1 of the year, following the year of the state cadastral assessment, but not earlier than on the expiration of one month from the date of its publication (official publication).

5. The authorized body of the subject of the Russian Federation within three working days from the date of the official publication of the act on approval of the results of the cadastral value determination, but no later than December 1 of the year of the state cadastral assessment sends it to a copy (including information on the dates of its publication and entry into force), As well as an instance of the report compiled on an electronic medium in the form of an electronic document, to the license authority for entering into a single state register of real estate information about cadastral value and placement in the State Cadastral Assessment Fund.

6. When obtaining information about the cadastral value defined in the manner prescribed by Article 20 or this Federal Law, the authorized body of the constituent entity of the Russian Federation carries out changes to the act of approval of the results of the definition of cadastral value for twenty working days from the date of receipt of information on such cadastral value And within three working days, it sends information about such cadastral value in the registration authority for the introduction to the Unified State Register of Real Estate.