Alternative Legal Constructions for the Settlement of Tax Situations: Limits of Admissibility

This article analyzes alternative legal constructions used to resolve tax situations and determines the limits of the admissibility of their use. It emphasizes that such legal constructions are lawmaking and enforcement. Moreover, the latter takes place in the course of both judicial and administrative law enforcement. These constructions are civil law. The authors highlight the fact that the subject of this article is not civil law institutions that determine tax law. We discuss civil law constructions in the system of tax situations, i.e., situations that arise from tax legal relations and require their resolution. In the context of the article, the lawmaking constructions are those that are established in the Tax Code of the Russian Federation. One example, in particular, is the civil law constructions of a surety and a bank guarantee, enshrined in Art. 74 and 74.1 of the Tax Code of the Russian Federation. Enforcement constructions, in particular, are civil law constructions of unjust enrichment and tort liability. As an alternative, these constructions for regulating tax situations are used in the Resolutions No. 9-P, dated March 24, 2017, and No. 39-P, dated December 8, 2017, of the Constitutional Court of the Russian Federation.

We pay particular attention to the analysis of the “tax clause” as a false alternative civil law construction initiated into the practice of the Federal Tax Service of Russia, and we determine the criteria for the limits of permissibility of using alternative legal constructions in the context of the subject of research.