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

1.3. Cadastral value land plots in the cases listed in clause 1.2 of these Guidelines, it is determined by the authorized Government Russian Federation by the federal executive body performing the functions of state cadastral valuation, or on the basis of the decision of this body - by the state budgetary institutions subordinate to it.

Information about changes:

1.4. The results of determining the cadastral value of land plots are reflected in the Act for determining the cadastral value of land plots.

Information about changes:

1.6. In the event of the formation or inclusion in the state real estate cadastre of information about a previously recorded land plot of unified land use, the Act for determining the cadastral value of land plots (attached) is drawn up for each cadastral quarter in which isolated or conditional land plots included in the unified land use are located, as well as for conditional cadastral quarter in which the single land use is located.

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

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

the first group - lands of specially protected natural areas (with the exception of lands included in the lands of medical and recreational areas and resorts); land for nature conservation purposes; lands of suburban green areas; land for historical and cultural purposes; land plots on which there are educational and tourist trails, trails; especially valuable land.

the second group - lands for recreational purposes (except for the lands of suburban green zones and land plots on which there are educational and tourist trails and routes), lands of medical and recreational areas and resorts;

As part of the land of the water fund:

the first group - land plots occupied by isolated water bodies in circulation in accordance with the legislation of the Russian Federation;

the second group - land plots occupied by isolated water bodies withdrawn from circulation or restricted in circulation in accordance with the legislation of the Russian Federation, structures designed to protect against floods and destruction of the banks of reservoirs, banks and the bottom of river channels; structures (dams), enclosing the storage of liquid waste of industrial and agricultural organizations; devices against erosion on canals, as well as other structures designed to prevent the harmful effects of water and liquid waste in the composition of the lands of water protection zones of water bodies, as well as lands allocated for the establishment of right-of-way and protection zones for water intakes, hydraulic structures and other water facilities and facilities ;

the third group - land plots within the lands of water protection zones of water bodies, as well as lands allocated for the establishment of right-of-way and protection zones for water intakes, hydraulic structures and other water facilities and facilities occupied by water supply facilities, fish and hunting facilities, hydraulic facilities (for with the exception of structures designed to protect against floods and destruction of the banks of reservoirs, banks and bottoms of river channels; structures (dams) enclosing storage facilities for liquid waste of industrial and agricultural organizations; devices against erosion on canals, as well as other structures designed to prevent the harmful effects of water and liquid waste), water intake, port and other water facilities and facilities;

the fourth group - land plots within the lands of water protection zones of water bodies, as well as lands allocated for the establishment of right-of-way and protection zones for water intakes, hydraulic structures and other water facilities and facilities, occupied by trees and shrubs or other vegetation;

the fifth group - land plots within the lands of water protection zones of water bodies, as well as lands allocated for the establishment of right-of-way and protection zones for water intakes, hydraulic structures and other water facilities and facilities provided to horticultural, vegetable gardening and dacha associations;

the sixth group - land plots within the lands of water protection zones of water bodies, as well as lands allocated for the establishment of right-of-way and protection zones for water intakes, hydraulic structures and other water facilities and facilities occupied by recreational facilities.

For the purposes of these Guidelines, land plots as part of agricultural land are divided into groups formed during the last state cadastral assessment by types of permitted use.

II. Determination of the cadastral value of land

2.1. Determination of the cadastral value in the event of the formation of a new one or the inclusion in the state real estate cadastre of information about the previously accounted land plot, as well as in cases of transfer land plot from one category to another or the assignment of a land plot to a certain category of land is carried out as follows.

2.1.1. In the event of the formation of a new one or the inclusion in the state real estate cadastre of information about a previously accounted land plot as part of agricultural land (with the exception of land plots located within the boundaries of horticultural, vegetable gardening and dacha associations), as well as in the case of the transfer of a land plot to agricultural land the first to sixth groups, the cadastral value is determined by multiplying the average for municipal district(urban district) values specific indicator the cadastral value of agricultural land of the corresponding group for the area of ​​the land plot.

2.1.2. In the event of a new formation or the inclusion in the state real estate cadastre of information about a previously accounted land plot within the boundaries of a horticultural, vegetable gardening or dacha association, the cadastral value is determined by multiplying the average value for the corresponding union of the specific indicator of the cadastral value of land by the area of ​​the land plot.

In the event of the formation of a new one or the inclusion in the state real estate cadastre of information about a previously recorded horticultural, vegetable gardening or dacha association, 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 constituent entity of the Russian Federation) indicator of the cadastral value of land of the corresponding association for the area of ​​the land plot.

2.1.3. In the event of the formation of a new or inclusion in the state real estate cadastre of information about a previously recorded land plot within the boundaries of an existing settlement, the cadastral value is determined by multiplying the value of the specific indicator of the cadastral value of land of the corresponding type of permitted use for the cadastral quarter of the settlement in which the land plot is located by the area land plot.

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

2.1.4. In the event of the formation of a new one or the inclusion in the state real estate cadastre of information about a previously accounted land plot as part of industrial and other special purpose lands, classified by the Methodology for the State Cadastral Valuation of Industrial and Other Special Purpose Lands (approved by order of Roszemkadastr dated March 20, 2003 N P / 49 , by the letter of the Ministry of Justice of Russia dated April 8, 2003 N 07/3354-YUD recognized as not requiring state registration) to the first - fourth groups, as well as in the case of transferring a land plot to the industrial lands of these groups, the cadastral value is determined by multiplying the average for the municipal district (urban district) (if absent - for a constituent entity of the Russian Federation) the value of the specific indicator of the cadastral value of industrial land plots of the first, second, third or fourth groups per land plot area.

2.1.5. In the case of the formation of a new one or the inclusion in the state real estate cadastre of information about a previously accounted land plot as part of industrial land of the fifth group, as well as in the case of a transfer of a land plot into industrial land of the specified group, the cadastral value is determined by multiplying the average for the municipal district (urban district) ( in the absence - for a constituent entity of the Russian Federation) the value of the specific indicator of the cadastral value of industrial lands of the second group per area of ​​the land plot.

2.1.6. In the case of the formation of a new one or the inclusion in the state real estate cadastre of information about a previously accounted land plot as part of industrial land of the sixth group, as well as in the case of the transfer of a land plot into industrial land of the specified group, the cadastral value is determined by multiplying the the value of industrial land of the sixth group per land area.

2.1.7. In the event of the formation of a new one or the inclusion in the state real estate cadastre of information about a previously accounted land plot as part of lands of specially protected territories and objects, referred by these Methodological Instructions to the first or second group, as well as in the case of the transfer of a land plot to lands of specially protected territories and objects of these groups, the cadastral value is determined by multiplying the average for a municipal district (urban district) (in the absence of a subject of the Russian Federation) value of the specific indicator of the cadastral value of lands of specially protected areas and objects of the first or second groups by the area of ​​the land plot.

2.1.8. In the event of the formation of a new one or the inclusion in the state real estate cadastre of information about the previously accounted land plot as part of the forest fund lands, as well as in the case of the transfer of the land plot to the forest fund lands, the cadastral value is determined by multiplying the average for the forestry enterprise, within the boundaries of which the land plot is formed ( in the absence - the subject of the Russian Federation), the value of the specific indicator of the cadastral value of forest land per area of ​​the land plot.

2.1.9. In the case of the formation of a new one or the inclusion in the state real estate cadastre of information about the previously recorded land plot as part of the land of the water fund, referred to the first group by these Methodological Instructions, as well as in the case of transfer of the land plot into the land of the water fund of the specified group, the cadastral value is determined by multiplying the average for a municipal district (urban district) (in the absence - for a constituent entity of the Russian Federation) the value of the specific indicator of the cadastral value of the lands of the water fund of the first group per area of ​​the land plot.

2.1.10. In the case of the formation of a new one or the inclusion in the state real estate cadastre of information about the previously accounted land plot as part of the land of the water fund, referred by these Methodological Instructions to the second group, as well as in the case of the transfer of the land plot into the land of the water fund of the specified group, the cadastral value is determined by multiplying the average for a municipal district (urban district) (in the absence - for a constituent entity of the Russian Federation) the value of the specific indicator of the cadastral value of agricultural land per area of ​​the land plot.

2.1.11. In the case of the formation of a new one or the inclusion in the state real estate cadastre of information about a previously accounted land plot as part of the land of the water fund, referred by these Methodological Instructions to the third group, as well as in the case of the transfer of the land plot into the land of the water fund of the specified group, the cadastral value is determined by multiplying the average for a municipal district (urban district) the value of the specific indicator of the cadastral value of industrial land plots of the corresponding group per area of ​​the land plot.

2.1.12. In the case of the formation of a new one or the inclusion in the state real estate cadastre of information about the previously accounted land plot as part of the land of the water fund, referred by these Methodological Instructions to the fourth group, as well as in the case of the transfer of the land plot into the land of the water fund of the specified group, the cadastral value is determined by multiplying the minimum for a municipal district (urban district) the value of the specific indicator of the cadastral value of agricultural land of the group corresponding to the type of permitted use of the land plot, per land plot area.

2.1.13. In the case of the formation of a new one or the inclusion in the state real estate cadastre of information about the previously accounted land plot as part of the land of the water fund, referred by these Methodological Instructions to the fifth group, as well as in the case of the transfer of the land plot into the land of the water fund of the specified group, the cadastral value is determined by multiplying the average for a municipal district (urban district) (in the absence of a constituent entity of the Russian Federation) the value of the specific indicator of the cadastral value of land plots within the boundaries of a horticultural, vegetable gardening or dacha association per land plot area.

2.1.14. In the case of the formation of a new one or the inclusion in the state real estate cadastre of information about a previously accounted land plot as part of the land of the water fund, referred by these Methodological Instructions to the sixth group, as well as in the case of the transfer of the land plot into the land of the water fund of the specified group, the cadastral value is determined by multiplying the average for a municipal district (urban district) (in the absence of a constituent entity of the Russian Federation) the value of the specific indicator of the cadastral value of lands in specially protected areas and objects of the second group per area of ​​a land plot.

Information about changes:

2.4. In the event that the formation of a new land plot, a change in the area of ​​a land plot, a change in the type of permitted use of a land plot, a transfer of a land plot from one category to another, assignment of a land plot to a certain category of land or the inclusion of information about a previously accounted land plot in the state real estate cadastre occurs (occurred) after the date as of which the cadastral value of land plots was determined during the last state cadastral appraisal and before the approval of its results, the cadastral value of these land plots is determined anew after the approval of the results of the state cadastral appraisal of land based on the indicated results.

Information about changes:

If you are a user of the Internet version of the GARANT system, you can open this document right now or request it via the Hotline in the system.

/ "Taxes" (newspaper), 2009, N 35 /
B. DUCK

V. Duck, lawyer.

The overwhelming majority of disputes related to taxation issues arise in the plane of the taxpayer challenging the actual actions (decisions) of the tax authorities.

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

Let's take a look at some of them.

Introductory remarks

By virtue of Art. 390 of the Tax Code of the Russian Federation, the tax base of the land tax is determined as the cadastral value of land plots recognized as an object of taxation.

To establish the cadastral value of land plots, a state cadastral valuation of land is carried out (Article 66 of the Land Code of the Russian Federation). The rules for the state cadastral valuation of lands, approved by the Decree of the Government of the Russian Federation of April 8, 2000 N 316 (as amended on September 17, 2007 N 590), it is determined that the results of the state cadastral valuation of lands are approved by the executive authorities of the constituent entities of the Russian Federation (cl. ten).

The procedure for maintaining the state cadastre of real estate, including when entering information about its cadastral value, is determined by 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 submission of the territorial cadastral authorities;
• is brought to the attention of the taxpayer, who independently, guided by the data obtained, calculates the land tax.

Each of the designated stages of tax (and related to it - cadastral) administration allows us to identify a number of questions, the answers to which allow not only to optimize the work of state, including jurisdictional, authorities, but also contribute to an increase in the level of financial discipline both on the part of tax authorities and and above all - taxpayers.

Jurisdiction of disputes

As already noted, the results of the cadastral valuation are approved by the authorized government agency and are reported to the taxpayer in the manner prescribed by law (it is from this moment that they acquire the property of obligation, characteristic of any regulatory legal act, and, accordingly, the possibility of challenging them arises).

Even in the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 29, 2007 N 48 "On the practice of consideration by courts of cases on challenging regulatory legal acts in whole or in part", it was noted that the essential features characterizing a regulatory legal act are: its publication in the prescribed manner the competent authority state power, local government body or official, the presence in it legal regulations(rules of conduct), binding on an indefinite circle of persons, designed for repeated use, aimed at regulating public relations or at changing or terminating existing legal relations (clause 9).

Arbitration courts are also guided by this definition.

The assignment of the act on the approval of the cadastral valuation to the number of normative ones is generally recognized and is not discussed either in theory or in tax practice.

Accordingly, the problem of challenging the cadastral valuation of a land plot begins with general question arising at judicial appeal normative act - the issue of jurisdiction.

Judicial practice consistently proceeds from the fact that the competence of commercial courts is to consider applications for invalidating legal acts, including regulatory legal acts, if such an application is filed by an organization or citizen who believe that the contested regulatory legal act violates their rights and legal interests in the field of entrepreneurial and other economic activity(p. 9 information letter Of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 13.08.2004 N 80).

At the same time, in cases of challenging regulatory legal acts, the courts should check whether there is a federal law that referred the consideration of such cases to their competence (clause 3 of article 191 of the Arbitration Procedure Code of the Russian Federation, article 245 of the Code of Civil Procedure of the Russian Federation).

There is no law allowing for the invalidation of acts on the approval of the cadastral value of land plots in arbitration courts.

But what about those situations when, despite the lack of jurisdiction of the dispute, the case was still considered by the arbitration court?

Indicative in this respect is the decision of the arbitration court, in order to prevent the denial of justice, which accepted for proceedings and considered a case outside the jurisdiction of the letter of the law on challenging a regulatory legal act adopted by a state body of a constituent entity of the Russian Federation in connection with the refusal of a court of general jurisdiction to accept the claimed dispute for consideration ( see: Determination of the Supreme Arbitration Court of the Russian Federation of June 30, 2008 N 6694/08 and Resolution of the FAS of the North-Western District of March 13, 2008 in case N A21-2860 / 2007).

This approach seems to be correct, not only providing real access to justice for the subjects of economic turnover, but also providing a more qualified dispute resolution in a specialized court.

The need to concentrate all economic disputes (namely, to them only disputes related to the cadastral value of a land plot and related issues of tax practice) in arbitration jurisdiction is a priority task for the reform of the judicial system at the present stage.

This trend, which is most clearly traced in corporate practice, should be continued as soon as possible in the area of ​​taxation.

Of course, this circumstance should in no way affect another aspect of the problem of protection of the violated right - the choice of the appropriate way of protection by the interested person justice for the lack of jurisdiction of the dispute "has recently been encountered less and less).

Regardless of the decision on the issue of jurisdiction, the requirements are not subject to satisfaction either on the "establishment by the court of the cadastral value in a certain amount" or on the obligation, for example, "to include in the land cadastre information on the cadastral value of these land plots 100% of them market value", which have become widespread in practice (which we will discuss in more detail below).

In the same cases when the arbitration court in accordance with the exclusive jurisdiction ( Art. 138 of the Tax Code of the Russian Federation, Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of 04.10.2005 N 7445/05) the case on appeal of the act of the tax authority is being considered, and at the same time the results of the cadastral assessment are contested as a separate claim, the proceedings in this part must be terminated, if the taxpayer refers to the incorrect determination of the taxable base, while citing arguments about the incorrect indication of the cadastral value, its arguments are evaluated along with other evidence in the case when resolving the dispute on the merits.

The value of the cadastral value and its relationship with the assessment of the market value of the land plot

According to the just remark of N.A. Lunina: "For the successful administration of the land tax, it is necessary to develop such a concept as the cadastral value ... the absence of the concept of the cadastral value of a land plot indicates that such an element of taxation as the tax base has not been developed" ( Lunina N.A. The need for changes in approaches to determining the cadastral value of land plots for the successful administration of land tax // Tax Administration. Yearbook. 2007. Statute, MAFP, Pepeliaev, Goltsblat and partners, 2008. P. 180).

In this case, the top priority is a question that is not directly related to the tax control procedure, but is of a more substantive nature - about the correctness (validity) of calculating the cadastral value and the possibility of its subsequent revision (if this particular criterion is not met), including in court.

So, as already noted, for tax purposes, the cadastral value of the land plot is established (clause 5 of article 65 of the Land Code of the Russian Federation). In accordance with paragraph 2 of Art. 66 of the named Code, in this case, the state cadastral valuation of land is carried out.

At the same time, the contractor of works on the cadastral valuation of land for general rule are organizations licensed to carry out appraisal activities (the possibility of attracting persons licensed to carry out appraisal activities to these works is provided for in the Resolution of April 8, 2000 N 316 (as amended on September 17, 2007)).

The implementation of the "technical component" of the cadastral valuation of land plots by entities that also carry out activities on the market valuation of property as their main activity does not in any way allow us to draw a conclusion about the direct relationship between the cadastral and market values ​​( despite the fact that the state cadastral valuation of land is based, among other things, on the analysis of market prices: Art. 7 Federal law from 29.07.1998 N 135-FZ "On appraisal activities in the Russian Federation", clause 5 of the Rules for the state cadastral valuation of land, approved. Decree of the Government of the Russian Federation of 08.04.2000 N 316, p. 2.2.5 Guidelines for the state cadastral valuation of land in settlements, approved. By order of the Ministry of Economic Development of Russia dated February 15, 2007 N 39).

At the same time, references to "the inconsistency of the methodology for determining the cadastral value with the established rules", as well as its "unreasonableness" (which, as a general rule, implies its inconsistency with the market value) are found in almost every conflict with the tax authority regarding the taxable base for land tax (considered either on its own, or as a derivative of the issue of arrears and sanctions).

How acceptable are these arguments?

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

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

In Art. 66 of the Land Code of the Russian Federation expressly stipulates that the market price of a land plot is established in accordance with the Federal Law on Appraisal Activities, and to establish the cadastral value, a state cadastral valuation of land is carried out, 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 provide for the obligation to recheck the results of the cadastral assessment (it seems that the powers of the courts when considering cases on challenging regulatory legal acts also do not include checking the assessment methods and procedure for conducting corresponding calculations).

The same valuation standards are based on the definition of the market value of the valuation object as the most probable price at which the valuation object can be alienated, and the types of values ​​specified in the standards that differ from the market value, including the value of the object for taxation purposes: determined for calculating the tax base and calculated in accordance with the provisions of regulatory legal acts, i.e. a value other than the "selling" price ( market valuation, which depends on supply and demand in the market and the nature of competition between buyers and sellers (the principle of supply and demand), changes over time and is determined by specific date(principle of change)); the cadastral value is "an economic assessment reflecting the economic value of a territory depending on its intended purpose and type of functional use."

The federal law "On appraisal activities in the Russian Federation" also contains only a definition of the concept of market value (Art. 3). Article 7 of this Law establishes that the market value of the appraisal object is established only in the event that a specific type of value of the subject of valuation is not defined in the regulatory legal act containing the requirement for mandatory valuation.

Thus, the identity of the cadastral value of the land plot and its market value is not established normatively, and, as a result, there are no indications of the possibility of arbitrary replacement of the cadastral value of the land plot with its market value.

In addition, we note that the legislation does not contain instructions either that the cadastral value of a land plot should not exceed its market value, or that the cadastral value of a land plot should be as close as possible to its market value.

Even if the inconsistency of the cadastral value indicators is confirmed market prices this circumstance cannot be evidence of a deviation from the requirements of the law.

In the same cases when, during the cadastral valuation of land plots, sufficient and reliable information about them was not collected, which is necessary for the state cadastral valuation of land, which led to the inaccuracy of the cadastral valuation as such (regardless of its relation to the market value), one should take into account that in itself the recognition of the results of the state cadastral valuation as invalid does not prejudge the issue of recognizing the cadastral value of disputed land plots of their market value, and even more so - the obligation to include in the land cadastre information on the cadastral value of these plots equal to their market value ( on the possibility of judicial verification 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 issue is the duty of the body that committed the violation of the rights and legitimate interests of the landowner-taxpayer to actually eliminate the violations, including by conducting a proper state cadastral valuation of lands and forcing him to fulfill this obligation, among other things, and through becoming at the federal level (possibly - within the framework of Rosreestr) an independent comprehensive cadastral (with related - financial, economic and land management studies) expertise, the results of which can be used both in the process of tax control and in legal proceedings ( It should be noted that it is the compulsory execution of judicial acts in seemingly indisputable situations that is, at the moment, perhaps the most acute problem of tax practice, to which attention is once again drawn in the article by L.V. Kravchinsky "New lessons of the old business, or the Supreme Arbitration Court of the Russian Federation is ignored - 2" // Tax expert. 2009. N 6.P. 59 - 66).

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

About "proper publication"

If the question of the conformity of the cadastral value to the market value inevitably arises when trying to challenge the actions of tax authorities according to substantive criteria, then, noting the formal criteria for protecting the rights of a taxpayer landowner, one should pay attention to the following.

By virtue of paragraph 14 of Art. 396 of the Tax Code of the Russian Federation, based on the results of the state cadastral valuation of land, the cadastral value of land plots is to be brought to the notice of the taxpayer in the manner determined by local authorities.

As a general rule, this is a publication in the local press, with the proper implementation of which the law associates the very possibility for the taxpayer to "independently calculate and pay the land tax" (Article 390 of the Tax Code of the Russian Federation), although the law does not exclude the use of other methods of communicating information.

What kind of publication (mode of communication) can be considered "proper"?

The main criterion here is one - the information is posted in open and accessible sources, including on the official website of the local government, in the reference legal system, at the stand or in any other way, while the taxpayer should be provided with the opportunity to familiarize himself with the full text of the regulatory act on the approval of the cadastral value and annexes to it.

By itself, the publication, for example, of the relevant resolution without attachments is not a violation of the constitutional principle enshrined in Art. 15 of the Constitution of the Russian Federation (any normative legal acts affecting the rights, freedoms and obligations of a person and a citizen cannot be applied if they are not officially published for general information), since with respect to the results of the state cadastral valuation of land, the law establishes a different special procedure for bringing them into account taxpayers and upon proof of violation of the rights and interests of the taxpayer, they are subject to restoration, including in court.

According to paragraph 14 of Art. 396 of the Tax Code of the Russian Federation, based on the results of the state cadastral valuation of land, the cadastral value of land plots as of January 1 of the calendar year shall be brought to the notice of taxpayers in the manner determined by local authorities (executive bodies of state power of federal cities of Moscow and St. Petersburg), no later than March 1 of this year. The very definition of such an order also raises many questions.

Article 47 of the said Law provides that municipal legal acts enter into force in the manner prescribed by the charter of the municipal formation, with the exception of regulatory legal acts of representative bodies of local self-government on taxes and fees, which come into force in accordance with the Tax Code of the Russian Federation. Municipal legal acts affecting the rights, freedoms and duties of a person and a citizen come into force after their official publication (promulgation). The procedure for publication (promulgation) of municipal legal acts is established by the charter of the municipality and must provide an opportunity for citizens 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 a normative legal act is the publication of its full text in the state language of the Russian Federation in that medium mass media, which is defined as an official periodical publication that publishes regulatory legal acts adopted by this body or official.

Considering that the purpose of the official publication of a normative legal act is to provide an opportunity to familiarize themselves with the content of this act to those persons whose rights and freedoms it affects, in exceptional cases, in the absence of a periodical in a public education that officially publishes regulatory legal acts adopted in this public education , and when publishing the contested act in another print media or promulgating the act (for example, in the manner prescribed by the constituent documents of public education), it is necessary to check whether the population of public education and other persons whose rights and freedoms are affected by the adopted act have been ensured, the opportunity to familiarize themselves with it content. If such an opportunity was provided, the procedure for publishing a normative legal act cannot be recognized as violated on the grounds of publishing it in the wrong print publication or bringing it to the attention of the population in a different manner.

So, in judicial practice, a practice has developed according to which: the loss of evidence of the publication or promulgation of a normative act in itself does not indicate that interested parties were not provided with the opportunity to familiarize themselves with its content, equally - even the absence of a publication source does not affect the normality property of the issued act and does not violate the rights of a taxpayer who "fulfills the requirements of this act and pays taxes for a long time."

This approach seems to be correct, although, perhaps, not in all the relevant letter of the law.

It should be borne in mind that in the event that a normative act is recognized as unpublished, the proceedings on a court case must be terminated, since an unpublished normative act does not entail legal consequences as it has not entered into force and, therefore, cannot violate the rights and legitimate interests of the applicant in the field of entrepreneurial and other economic activity, cannot impose on him any duties ( the procedural problems arising in this case are thoroughly considered in the article by I.R. Medvedeva "Challenging unpublished (unregistered) regulatory legal acts: the latest practice of the Supreme Court of the Russian Federation" // Arbitration and civil procedure. 2008. No. 11,12; the proposals made by the author to amend Part 1 of Art. 251 of the Code of Civil Procedure of the Russian Federation and the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 29, 2007 N 48 "On the practice of court consideration of cases on challenging regulatory legal acts in whole or in part" seem to be justified and deserve support).

This rule is applicable when challenging the actual act of approving the cadastral value of a land plot. In the event that this argument is concomitant in a tax dispute, this act is assessed by the court when making a decision as one of the evidence in the case.

It should also be borne in mind that in accordance with paragraph 14 of Art. 396 of the Tax Code of the Russian Federation determined the procedure according to which the cadastral value of land plots as of January 1 of a calendar year must be communicated to taxpayers no later than March 1 of this year. This norm is special in relation to the norms of the first part of the Tax Code of the Russian Federation, due to which it is subject to direct application and cannot be recognized as contradicting the provisions of clause 1 of Art. 5 of the Tax Code of the Russian Federation.

According to the position of the financial authorities, if the cadastral value of a land plot and the procedure for bringing it to the attention of taxpayers are determined, but the cadastral value of the land plot has not been brought to the attention of the taxpayer in the prescribed manner, then the taxpayer is obliged to submit to the tax authorities a "zero" tax return (tax calculation for advance payments ), and after receiving official information on the cadastral value of land plots in the manner prescribed by local authorities, submit an updated tax return.

In the case when the tax (advance tax payments) by the taxpayer has not been paid within the established time frame for reasons beyond his control ( not approved, not brought cadastral value of a land plot), then the accrual of penalties for each day of delay in fulfilling the obligation to pay tax (advance tax payments) should not be made (letter of the Ministry of Finance of Russia dated June 6, 2006 N 03-06-02-02 / 75).

This 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 for each land plot as its cadastral value as of January 1 of the year that is the tax period.

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

If the cadastral value of specific land plots was not determined in a timely manner, 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 of Art. 5 of the Tax Code of the Russian Federation stipulates that acts of legislation on taxes and fees of constituent entities of the Russian Federation and regulatory legal acts of representative bodies of municipalities introducing taxes shall enter into force not earlier than January 1 of the year following the year of their adoption, but not earlier than one month from the date of their adoption. official publication.

Since in accordance with paragraph 6 of Art. 3 of the Tax Code of the Russian Federation, when establishing taxes, all elements of taxation should be determined, and acts of legislation on taxes and fees should be formulated in such a way that everyone knows exactly what taxes (fees), when and in what order he must pay, only tax is considered established. in the event that all the elements of the tax have been installed, allowing the calculation of the tax amount.

Consequently, the very additional assessment of the land tax by the tax authority under the above circumstances is illegal.

Correction of a "technical error" as an alternative way to protect rights

Perhaps the most effective way tax optimization in the field of land relations is the possibility of adjusting the amount of payments during the tax period in connection with the correction of the so-called technical error in the cadastre, through the use of the procedure provided for in Art. 28 of the Federal Law "On the State Real Estate Cadastre" (dated 24.07.2007 N 221-FZ).

Often, this method of protecting rights is the most effective and at the same time the most corruption-intensive (which, in our opinion, is primarily due to the exclusion of the tax authorities themselves from the relevant procedure).

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

In Art. Art. 52, 54 and 396 of the Tax Code of the Russian Federation indicate that taxpayers independently calculate the amount of tax payable for the tax period, based on the tax base, tax rate, tax benefits and on the basis of documented data on objects subject to taxation or related to taxation (in this case, data on the amount of tax indicated by the taxpayer in tax returns must be reliable, corresponding to the objectively existing obligation to pay tax to the budget, established on the basis of real and correctly defined objects of taxation).

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

Is it legal for a taxpayer to determine the taxable base (filling out a tax declaration) with an indication of the cadastral value of a land plot, based not on the indicator reflected in the cadastre, but guided by another criterion - for example, determined based on the actual use of the land plot (as its understanding by the taxpayer), other than "permitted" recorded in the cadastral documentation?

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

According to the general rule established in paragraph 1 of Art. 391 and clauses 12 and 14 of Art. 396 of the 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 on a specific date (January 1 of the year that is the 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 a land plot).

Thus, in the event of a change during the tax period in the type of permitted use of a land plot, when calculating the land tax in respect of such a land plot, the tax rate 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 of the year that is the tax period.

The tax base cannot be arbitrarily changed during the tax period, and therefore such changes as the transfer of land from one category to another, change in the type of permitted use of the land plot, affecting the cadastral value of the land plot and occurring during the tax period, are taken into account when determination of the tax base that will be applied to calculate land tax in the next tax period.

Another case is if a change in the results of the state cadastral valuation of land occurred as a result of correcting technical errors, a court decision, etc., entered in reverse as of January 1 of the year that is the tax period.

In this case, the tax rate for land tax is subject to application taking into account such a correction (this position is reflected by the Ministry of Finance of the Russian Federation in letters dated January 29, 2009 N 03-05-06-02 / 05, dated December 18, 2008 N 03-05-05-02 / 91, dated 16.08.2007 N 03-05-07-02 / 81 and dated 05.09.2006 N 03-06-02-02 / 120).

The taxpayer is deprived of the opportunity to arbitrarily determine the types of permitted use of the real estate belonging to him (and, accordingly, to calculate the taxable base, guided by criteria other than those recorded in the cadastre). Moreover, links to " general principles tax legislation, by virtue of which "tax liabilities should be based on real economic grounds" (which is universally the case in the case of a discrepancy between the "actual" and "permitted" use of sites and more preferential taxation in the first case) cannot be recognized as acceptable (which is confirmed numerous examples of administrative and judicial practice).

At the same time, if, when considering the issue of an arbitrary determination by the taxpayer of the taxable base, it is established that incorrect information was initially entered in the cadastre, then regardless of the timeliness of their correction (which can be carried out even after control measures by tax authorities), the grounds for applying measures to the landowner no tax liability.

In what order can an error in the inventory be eliminated?

The main problem in such situations is the classification of the error as "technical", as well as the observance by the taxpayer of the established procedure for correcting it (in essence, the question of what actually takes place is resolved: correcting the error or changing the type of permitted use of the land plot).

The Federal Law "On the State Real Estate Cadastre" (dated 24.07.2007 N 221-FZ) defines a technical error as "a mistake, a typo, a grammatical or arithmetic error, or similar an error made by the cadastral registration authority in maintaining the state real estate cadastre and leading to inconsistency of the information entered in the state real estate cadastre with the information in the documents on the basis of which information was entered into the state real estate cadastre (technical error in the information) "- subparagraph 1 of paragraph 1 Article 28.

Along with this, the Law also gives the definition of "cadastral error in information" (an error reproduced in the state cadastre of real estate in the document on the basis of which information was entered into the cadastre) - pp. 2 p. 1 art. 28.

The previously existing definition seems to be more successful, since, without distinguishing between the persons who committed the violation, the cadastral authority, or third parties, noted the essential characteristic of the error: the inconsistency of the cadastral information with the primary documents ("A technical error made in maintaining the state land cadastre is understood as an error, leading to a discrepancy between the information entered in the main documents of the cadastre, duty cadastral maps (plans), the data contained in the documents submitted by the applicant, which were the basis for entering this information into the state land cadastre "- letter Federal agency cadastre of real estate objects from 21.04.2006 N VK / 0556).

Thus, the wording of Art. 28 of the Federal Law "On the State Real Estate Cadastre" allows you to make changes to the cadastre with tax consequences that previously occurred when correcting a "technical error", not only in relation to similar cases, but above all when correcting a "cadastral error" (which in practical terms is more common).

The main issue, both when correcting the "technical error" itself, and when making changes to the cadastre in connection with the "cadastral error in the information" is the following.

With the adoption of the Law "On the State Real Estate Cadastre", an error in the information (in terms of its cadastral component) can be corrected on the basis of a court decision, upon request any a person or any body (clause 5 of article 28 of the Law) (while the requirement of the applicant's interest as a condition for the realization of his right to apply for judicial protection, of course, must be taken into account in similar cases).

It seems that such an interested person can also be a tax authority, which in its activities should be guided by reliable information from the cadastre when exercising tax control.

Likewise, a "technical error" can be corrected by the cadastral authority at the request of the tax authority, whose interest in this is beyond doubt (clause 2 of article 28 of the Law) (see also: clause 2.2 of the Clarifications on correcting technical errors made during determining the cadastral value of land plots that are objects of taxation, and informing the tax authorities and other persons about this, who relied on the corresponding records in the state land cadastre, Appendix No. 1 to the letter of the Office of Rosnedvizhimost for the Moscow Region dated 12.03.2007 No. 2717-1).

Estimated characteristic - the cadastral value replaced the inventory and market value, which for one object were expressed in completely different numbers, in particular, the inventory value was significantly lower than the market value. This led to the emergence of disagreements in the sale, inheritance, division of real estate and other property transactions. In addition, there was a clear shortfall in taxes paid for the use of land and objects located on land, since the tax rate was applied to the inventory value. Establishing the market value would require a huge amount of funds that the municipal authorities do not have at their disposal.

Methodology for determining the cadastral value

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

The result of the work of the appraisers is the act of approving the cadastral value. The act will include objects previously registered on the territory of a particular municipal association.

Legal assistance in cadastral disputes

Prompt consultation by phone or in the office of the bureau

Land dispute lawyer - specialist assistance in cadastral disputes

Revision of the cadastral value

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

Revision at the initiative of interested parties whose interests were affected by the cadastral value is justified by the presence of compelling arguments, in particular, the presence of unaccounted or unreliable characteristics or the presence of a market value derived at the initiative of the owner by an authorized body.

The act of determining the cadastral value

There are situations, the formation of objects after the next cadastral assessment, or the existing objects undergo significant change, for example, overhaul... V this case the cadastral value will be determined according to the methodology developed by the Ministry of Economic Development of Russia. The methodology is approved by the relevant order (No. 113 dated March 18, 2011). The 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 updated during the next mass appraisal.

Property tax

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

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

The state cadastral appraisal is carried out by decision of the executive body of state power of the constituent entity of the Russian Federation no more than once every three years (in cities of federal significance - no more than once every two years) and at least once every five years, with the exception of an extraordinary state cadastral appraisal ... The specified period is determined from the date of the adoption of the act on the approval of the results of the determination of the cadastral value until the day of the adoption of the act on the approval of the following results of the determination of the cadastral value.

In accordance with the order of the Ministry of Property Relations of the Moscow Region dated November 30, 2017 No. 13ВР-1766 "On the State Cadastral Valuation by the State Budgetary Institution of the Moscow Region" Cadastral Valuation Center " categories of land located on the territory of the Moscow region, with the exception of categories of forest land.

The state cadastral appraisal is carried out in relation to the real estate objects specified in the decision on the state cadastral appraisal.

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

The list includes information from the Unified State Register of Real Estate, relevant as of January 1 of the year of determining the cadastral value, with the exception of an extraordinary state cadastral valuation for 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 the information necessary to determine the cadastral value, the rightholders of real estate objects have the right to provide a budgetary institution with declarations on the characteristics of the corresponding real estate objects. The procedure for considering the declaration on the characteristics of a real estate object, including its form, was approved by order of the Ministry of Economic Development of the Russian Federation of December 27, 2016 N 846.

1. Determination of the cadastral value and drawing up a report on the results of the state cadastral valuation.

Determination of the cadastral value is carried out in accordance with guidelines on the state cadastral valuation.

Based on the results of determining the cadastral value, with the exception of an extraordinary state cadastral valuation, the budgetary institution, in accordance with the requirements for the report, draws up intermediate reporting documents in the form of an electronic document, which are a draft report.

In the event that the intermediate reporting documents meet the requirements for the report, Rosreestr, within three working days from the date of the end of the verification of the intermediate reporting documents, places the information and materials contained in the intermediate reporting documents in the data fund of the state cadastral valuation in the amount provided for by the procedure for maintaining the data fund of the state cadastral valuation , as well as information about the location of such documents on the official website of the budgetary institution in the information and telecommunications network "Internet" for sixty days to submit comments related to the determination of the cadastral value, information about which is contained in the interim reporting documents

Comments are submitted within fifty days from the date of placement of the specified information and materials by any interested persons in a budgetary institution or a multifunctional center for the provision of state and municipal services.

A budgetary institution makes changes to interim reporting documents based on the results of consideration of comments to them no later than the end of the period for placing information and materials in the data fund and, within ten days after the expiration of the specified period, draws up a report that includes a certificate with information about the taken into account and unaccounted for comments to the interim reporting documents with the justification for their accounting, refusal to register or the absence of comments, as well as on the correction of violations of the requirements for the report identified by Rosreestr.

Within twenty working days, 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 an order to eliminate the identified violations or a 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 notification of the absence of violations, sends to the Ministry of Property Relations of the Moscow Region three copies of the report on electronic media in the form of an electronic document and one copy of the report on paper.

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

The Ministry of Property Relations of the Moscow Region, within twenty working days from the date of receipt of the report, approves the results of determining the cadastral value contained in such a report by adopting an appropriate act on approving the results of determining the cadastral value and within thirty working days from the date of adoption of such an act ensures its official publication and informing about its acceptance.

The act on the approval of the results of determining the cadastral value comes into force on January 1 of the year following the year of the state cadastral valuation, but not earlier than one month after the date of its promulgation (official publication).

The Ministry of Property Relations of the Moscow Region, within three working days from the date of the official publication of the act on the approval of the results of determining the cadastral value, but no later than December 1 of the year of the state cadastral valuation, sends a copy of it and a copy of the report compiled on an electronic medium in the form of an electronic document to Rosreestr for entering information about the cadastral value into the Unified State Register of Real Estate and placing it in the data fund of the state cadastral valuation.

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

2. The results of determining the cadastral value cannot be approved if the violations revealed by the registration authority in accordance with Article 14 of this Federal Law have not been eliminated.

3. The authorized body of the constituent entity of the Russian Federation, which made a decision to conduct a state cadastral valuation, within thirty working days from the date of adoption of the act on approval of the results of determining the cadastral value, ensures its official publication and informs about its adoption by:

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

3) placing a notice on their information boards;

4) sending information to the registration authority for placing a notice on the information boards of the registration authority, as well as in the data fund of the state cadastral valuation;

5) sending information to local government bodies of municipalities located on the territory of a constituent entity of the Russian Federation for placing a notice on the information boards of these bodies.

4. The act on the approval of the results of determining the cadastral value comes into force on January 1 of the year following the year of the state cadastral valuation, but not earlier than one month after the date of its promulgation (official publication).

5. The authorized body of the constituent entity of the Russian Federation, within three working days from the date of the official publication of the act on the approval of the results of determining the cadastral value, but no later than December 1 of the year of the state cadastral valuation, sends a copy of it (including information on the dates of its publication and entry into force), as well as a copy of the report, compiled on an electronic medium in the form of an electronic document, to the registration authority for entering information on the cadastral value into the Unified State Register of Real Estate and placing it in the state cadastral valuation data fund.

6. Upon receipt of information on the cadastral value determined in the manner prescribed by Article 20 or this Federal Law, the authorized body of the constituent entity of the Russian Federation shall amend the act on approval of the results of determining the cadastral value within twenty working days from the date of receipt of information on such cadastral value and within three working days sends information about such cadastral value to the registration authority for entry into the Unified State Register of Real Estate.