FEDERATION TO THE WORLD TRADE ORGANIZATION 14 страница

379. One Member asked about the rates of fees applied to the customs clearance of goods shipped by postal services or express delivery services. In response, the representative of the Russian Federation stated that according to the exemptions listed in Article 357.9 of the Customs Code and Article 131 of the Federal Law "On Customs Regulation", customs fees for customs clearance were not chargeable in respect of goods forwarded in international postal items unless a declaration was required in written form and the said goods were declared by lodging a separate customs declaration (i.e., if the declared value of transferred goods exceeded RUB 10,000). In the latter cases, the rate of customs fees for customs clearance of goods amounted to RUB 250 as regards the goods, assigned for personal, family, household or other activities not connected with entrepreneurial activity, which were sent to a physical person (item (d), Table 20); if the goods were considered to be commercially traded, the relevant fee according to the scale listed in Table 20 was applied. He added that there were no differences provided for by the legislation in this matter, in respect of the treatment of foreign postal services, including express delivery operators, and the post service of the Russian Federation. In particular, there were no special exemptions for goods sent via the post service of the Russian Federation.

380. The representative of the Russian Federation recalled that when the current system of the customs clearance fees was introduced, it was intended that this system would be consistent with the requirements of the WTO Agreement, including Article VIII of the GATT 1994 and not burdensome for the participants in foreign trade.

381. Some Members, however, insisted that this system had some features that were not consistent with the provisions of Article VIII of the GATT 1994. One Member noted that high value declarations would incur a customs clearance fee of nearly 3,500 USD, an amount that could not be considered to be limited in amount to the approximate cost of services rendered. In addition, goods whose customs clearance may not require much handling or that used electronic format or other simplified methods for filing declarations could be subject to the same fees as similarly valued goods that required additional services. Finally, because customs clearance operations were funded from the State budget of the Russian Federation, and revenues from the fees were remitted to the State budget, it was difficult to establish that such revenues were used only for customs clearance operations. This Member requested that the Russian Federation amend its legislation to address these concerns and to establish a WTO-compliant system of customs clearance fees.

382. In response, the representative of the Russian Federation confirmed that the Customs Code mandated that the level of customs fees, including customs clearance fees, not exceed the cost of services rendered and that total revenues from customs clearance fee collections in 2009 accounted for only 25 per cent of the cost of customs clearance operations that year. He expected that further development of trade facilitation measures and expansion of enhanced customs clearance and control technologies would lead to decreased cost of services rendered in connection with customs clearance. He also confirmed that, prior to the date of accession, his Government would amend the system of customs clearance fees, i.e., reduce the maximum level for the customs clearance fee to the RUB equivalent of Special Drawing Rights (SDR) amount equal to RUB 30,000 as of the date of accession and establish lower fixed fees for the customs clearance of goods using electronic format or other simplified methods for filing declarations, to ensure compliance with the provisions of the WTO Agreement, in particular, of Article VIII of the GATT 1994. The Working Party took note of these commitments.

(b) Other Fees

383. The representative of the Russian Federation said that other fees applied to imports or to the act of importation included: (i) port user fees; (ii) State duties; and (iii) consular fees. He confirmed that the Tax Code provided for the non-discriminatory application of State duties (Article 3 of Federal Law No. 146-FZ of 31 July 1998 "Part I of the Tax Code of the Russian Federation" (as amended on 17 July 2010). State duties could not be applied differently because of social, racial, national, religious or any other type of criteria, and the establishment of differential taxes and fees for the same purpose was prohibited.

384. The list of port fees applied in the Russian Federation was established in Federal Law No. 261-FZ of 8 November 2007 "On Seaports in the Russian Federation and on Amending Particular Legislative Acts of the Russian Federation". Port fees used in the particular seaports of the Russian Federation had been approved by the Order of the Ministry of Transport of the Russian Federation No. 187 of 17 December 2007 "On Approval of Port Fees Collected in Seaports of the Russian Federation" Table 21 and Table 22. These port fees were collected per 1 gross tonne of vessel conventional capacity, stated in International Measuring (classification) Certificate, according to provisions of the International Convention on Tonnage of 1969 and, included the following: tonnage (to be collected for each arrival into the port and departure from it), beaconage (to be collected for each arrival into the port, departure and transit through port harbourage), canal fees (to be collected upon each pass of canal on arrival, departure and transit through port harbourage), ecological fees (to be collected in ports, providing facilities for collection of wastes of all types, except ballast water), pilotage fees (to be collected for out-of-port pilotage through fairways and channels (for miles) and in-port pilotage and (for operations)), navigation fees (to be collected for each arrival into the port and departure from it), and, ice-breaker fees (to be collected for each arrival into the port, departure and transit through port harbourage with dependence on the season of the year). General provisions for port fees collection and their maximum rates were established in the Order of the Federal Service on Tariffs No. 522-t/1 of 20 December 2007 (particularities of collection of specific fees in each port were provided in Annex 10 (b)), Port fees were collected by the authorities of the commercial seaports of the Russian Federation on a non-discriminatory basis from Russian and foreign vessels and floating facilities, irrespective of their legal organizational form, legal status and pattern of ownership.

385. State duties were collected in accordance with Chapter 25.3 of Federal Law No. 117-FZ of 5 August 2000 "Part II of Tax Code of the Russian Federation" (as amended on 28 December 2010). The provisions of the Tax Code of the Russian Federation related to State duties entered into force on 1 January 2005. The Law of the Russian Federation No. 2005-1 of 9 December 1991 "On State Duty", which previously regulated the application of State duties, had been abolished. Pursuant to Article 333.16 of the Tax Code of the Russian Federation, State duties were levied for the performance of legally significant actions, i.e., notary actions, including the issuance of documents, copies and duplicates, except for actions carried out by consular offices and only in the cases foreseen in the legislation. The list of applicable State duties was reproduced in Table 23.

386. Several Members again questioned how an ad valorem State duty for the attestation of agency Agreements and for accepting money and securities in deposit could relate to the cost of the service rendered. They also requested clarification of whether these duties applied to the act of importation or exportation, and what sorts of customs documents required a stamp tax. Regarding fees that were applied to imports for requirements, such as standards certification or vehicle taxes, these Members also noted that to the extent that these fees were inconsistent with Article III of the GATT 1994, they should be revised or eliminated prior to accession. Clarification was also requested regarding the precise meaning of legally significant action "for performing other notary actions" or "for the performance of the technical work for the making of the documents".

387. In response, the representative of the Russian Federation stated that, pursuant to the Tax Code of the Russian Federation, State duties had to be paid only if so required under Chapter 25.3 of the Code. Mandatory customs operations and procedures, such as authentication of customs documents, attestation of agency Agreements and acceptance of money and securities in deposit by customs bodies did not require any payment of a State duty. Concerning the meaning of legally significant actions, he said that, according to Chapter 25.3 of the Tax Code of the Russian Federation, legally significant actions were:

- statements of claim and other claims and complaints filed with courts of general jurisdiction, arbitration courts, justice courts and the Constitutional Court of the Russian Federation;

- notarial acts by public notaries employed by notary offices or duly authorised officials of executive authorities, local administrations;

- State Registration of acts of civil status and other legally significant actions performed by vital statistics offices; and

- issuance of documents by courts, institutions and agencies for consideration and issuance of documents associated with acquisition of Russian citizenship (national status) or denunciation thereof and performance of other legally significant actions.

388. Referring to consular fees, he noted that in accordance with the Vienna Convention on Consular Relations (1963) and Consular Articles provisions (1976), the main objective of the consular offices was the protection of rights and legal interests of Russian citizens and legal entities abroad. Consular offices of the Russian Federation collected fees for the issuance of documents of legal significance to Russian natural persons or legal entities constantly or temporarily residing or located in foreign countries, as well as to citizens of foreign states, foreign legal entities, and persons without citizenship. Acts performed by the consular offices of the Russian Federation included those related to passport and visa matters, citizenship, certification and notarization of documents, and power of attorney notarization. None of these acts were directly related to exports or imports of goods and their fees were applied on a reciprocal basis.

389. Noting the statement above, some Members sought clarification from the Russian Federation on whether consular fees were levied on consular operations involving importation or exportation. In particular, they asked the Russian Federation to confirm whether any requirement existed for authentication of customs documentation by overseas Russian Federation consulates prior to exportation. Some Members expressed concerns about the charging of fees for consular purposes that were connected with importation (see Table 24) at a lower rate from certain countries where the service was performed (the Baltic countries and CIS countries) as this practice would be in violation of Article I of the GATT 1994 and should be eliminated prior to accession. Other Members of the Working Party expressed concern about the discriminatory application of consular fees by Sub-Federal entities, apparently in contravention of the legislation of the Russian Federation. The same Members requested that the Russian Federation enter into a commitment to apply a uniform consular fee policy to all and to eliminate current discriminatory practices prior to accession.

390. The representative of the Russian Federation responded that his Government imposed no requirement for the issuance of consular invoices or certificates for exports to the Russian Federation, nor for the authentication of customs documentation required for importation. He confirmed that consular fees were charged only by the consular offices of the Russian Federation. No consular offices were established by Sub-Federal entities and no consular fees were applied at Sub-Federal level. He also noted that the consular fees listed in Table 24 were not connected with the type of consular acts covered by Article VIII:4 (a) of the GATT 1994, and were not in any way directly related to exportation or importation. These acts were covered by bilateral consular treaties and performed mainly in respect of Russian citizens and Russian legal entities. In his view, such bilateral treaties, providing for differential treatment for consular services on a reciprocal basis, were common among WTO Members.

391. The representative of the Russian Federation confirmed that the lists of fees and charges for customs services, port fees used in commercial seaports and State duties that could be applied in the context of international trade listed in Table 20, Table 21, Table 22, Table 23, Table 24 were comprehensive as of the date stated in each table.

392. The representative of the Russian Federation confirmed that the Russian Federation would, from the date of accession, ensure that any fees and charges imposed on or in connection with importation and exportation, including those discussed in paragraphs 357, 373, 445, 460, 463, 481, 563, and 664 or introduced in the future, would be applied in conformity with the relevant provisions of the WTO Agreement, in particular Articles VIII and X of the GATT 1994. He further confirmed that, from the date of accession, all laws and regulations regarding the application and level of any such fees and charges would be published. Further, upon receipt of a written request of a concerned Member, the Russian Federation would provide to that Member information on the revenue collected from a specific fee or charge and on the costs of providing the associated services. The Working Party took note of these commitments.

Application of Internal Taxes on Imports

393. The representative of the Russian Federation stated that, as from 1 January 2010, the legal framework governing the application of indirect taxation on imports (and exports) among the CU Parties was contained in the Agreement on the Principles of Indirect Tax Collection at Export and Import of Goods, Performing Work and Rendering Services in the Customs Union, signed on 25 January 2008, and as amended by the Protocol on Amending the Agreement On the Principles of Collection of Indirect Taxes on Exports and Imports of Goods, Performing Works and Rendering Services in the Customs Union of 11 December 2009 (hereafter: Protocol on Amending the Agreement on Indirect Tax on Exports and Imports). Its provisions were elaborated in the Protocol on the Order of Levying of Indirect Taxes in View of Performance of Works and Rendering Services in the Customs Union of 11 December 2009, and the Protocol on the Procedure of Collection of Indirect Taxes and on the Mechanism of Carrying Out the Control over their Payment while Exporting/Importing Goods in the Customs Union, signed on 11 December 2009.

394. These CU Protocols and the Agreement established that imports among CU Parties would be subject to excise and Value Added Taxes (VAT) and that exports among CU Parties would be exempted or taxed at a zero rate, provided that documentary confirmation of the fact of the export was submitted and that the tax authorities of the CU Parties possessed information confirming tax payment to the budgets of other CU Parties for these goods. The Agreement also confirmed that the rate of duty of these indirect taxes applied to imports would not exceed the rate applicable to domestic goods. The Agreement on Indirect Tax on Exports and Imports (as amended) provided that application of indirect taxes on imports into Special Economic Zones (SEZs) would be established in a separate CU Treaty. Article 70 of the CU Customs Code, adopted on 27 November 2009, and implemented on 1 July 2010, confirmed that CU Parties' customs services (the FCS in the Russian Federation) would collect VAT and excise taxes on imports into the Customs Union from third parties. Articles 72, 73, and 75 stated that the levels, method of collection and taxable base for these taxes on imports were determined by the national legislation of the CU Parties. Thus, to a large extent, the national legislation of the Russian Federation determining the application of indirect taxes to imports and exports, prior to 1 January 2010, continued to apply.

(a) Excise Taxes

395. The representative of the Russian Federation noted that the legal framework for excise taxation in the Russian Federation was provided in Chapter 22 (Excise Tax) of the Tax Code (Federal Law No. 110-FZ of 24 July 2002 "On the Introduction of Chapter 22 into Force"). It set the list of products, which were subject to excise taxes and tax rates (see Table 25). In pursuance of the above-mentioned Act, excise tax rates for imports and those for domestic products were identical.

396. He further noted that Article 193.1 of the Tax Code of the Russian Federation provided that excise taxes were applied on the basis of specific rates for all types of excisable goods, excluding cigarettes with filters, non-filter cigarettes, and mouthpiece cigarettes. For these tobacco products combined tax rates applied, consisting of both a specific and an ad valorem tax rate. Currently, ad valorem tax rates were not applied in respect of other excisable goods. The tax base for calculating the ad valorem alternative for the excise tax for cigarettes was the ex-factory price exclusive of VAT for domestic products and the duty paid customs value exclusive of VAT for imported cigarettes.

397. If excisable goods were placed under customs treatments of transit, bonded warehouse, re-export, processing under customs control, free customs area, destruction and refusal in favour of the State, the excise tax did not have to be paid. Products for which a zero level excise tax was indicated (e.g., beer with an alcohol content less than or equal to 0.5 per cent) were included in the list of excisable goods only for the effective State monitoring of their turnover.

398. In respect of further concerns of some Members related to the principle of levying excise taxes on imports from CIS countries, including other CU Parties, the representative of the Russian Federation noted that from 1 July 2001, when Chapter 22 of the Tax Code of the Russian Federation had entered into force, excise taxes had been levied in a uniform manner on all imports, based on the country of destination principle, except for Belarus. As from 1 February 2005, on the basis of the Agreement of 15 September 2004 between the Russian Federation and the Republic of Belarus, the country of destination principle was also applied to imports from Belarus. This principle was extended to the Customs Union with Kazakhstan and Belarus on 1 January 2010, in accordance with the Agreement on Indirect Tax on Exports and Imports for which Chapter 7 of the CU Customs Code confirmed these principles for taxation of imports from third countries.

399. Some Members noted that excise taxes on imports of automobiles were applied on the basis of the engine capacity, which was an unjustified discrimination against trade in similar products. Members also sought information on an announced prospective application of a similar discriminatory excise tax on agricultural machinery on the same basis. In their view, these measures were not in conformity with WTO provisions, e.g., Articles I, III, XI of the GATT 1994.

400. The representative of the Russian Federation replied that the excise tax on automobiles was being applied on the basis of engine capacity. It was aimed at the taxation of Russian consumers of luxury cars and taking into account the environmental concerns and that it constituted a usual and normal measure. The measure was not aimed at discrimination against particular countries or manufacturers, as such, luxury and powerful cars were produced in the Russian Federation too. He also noted that excise tax rates for imported and domestic products were equal under Article 193 of the Tax Code of the Russian Federation. Reasoning from the preceding, he stated that, in his view, excise tax on imports of automobiles had no discriminatory effect on imports. He added that agricultural machinery had never been subject to excise taxes and that the Russian Federation had no intention of introducing excise taxes on agricultural machinery.

401. Some Members requested additional information on how the Russian Federation calculated the single payment that natural persons importing motorcars paid in place of the customs duty, VAT and excise tax.

402. The representative of the Russian Federation explained that the calculation of single payment was regulated by Chapter 23 of the Customs Code of the Russian Federation, as elaborated by the Government Resolution No. 718 of 29 November 2003 "On the Approval of the Regulation on the Application of the Uniform Rates of the Customs Duties and Taxes With Respect to Goods Transferred Across the Customs Border of the Russian Federation by Natural Persons for Personal Use" and based on the uniform rates set in the above-mentioned Resolution. According to Article 360.4 of the CU Customs Code, the application of customs duties, taxes, and customs fees on goods imported by physical persons for personal use and also terms of their payment were governed by the Agreement on the Order of Transportation of Goods through the Customs Border of the Customs Union by Physical Persons for Personal Purposes and on Performance of Operations, signed on 18 June 2010. Based on these provisions, there had been no changes to the regime of the Russian Federation in calculating a single import payment for physical persons importing motorcars.

403. The rates applied under this regime were differentiated, depending on the age of the cars, within three categories: (i) new ones from the date of the production of which not more than three (full) years passed; (ii) used ones from the date of production of which not less than three, but not more than seven (full) years passed; and (iii) used ones from the date of production of which more than seven (full) years passed. The Government Resolution provided that imports by natural persons of motor cars into the customs territory of the Russian Federation were subject to a single payment, which replaced the customs duty, VAT and excise tax. The amount of such single payments was approximately equal to the sum of customs duty, VAT and excise tax.

404. Several Members expressed appreciation for the comprehensive listing of excise taxes and other information on their application to domestic and imported goods in Table 25. They noted that the differentiation of excise tax rates within specific categories of alcoholic beverages, e.g., for different types of beer, wine, and spirits, might have a de facto discriminatory effect on imports. In addition, a higher excise tax was levied on alcoholic beverages containing more than 28 per cent alcohol by volume. At a later stage, Members sought confirmation that any differential in the rates of excise tax applied to alcoholic beverages had been eliminated, and sought information on how the Russian Federation intended to eliminate these measures and bring its excise tax regime on alcohol and alcoholic beverages into conformity with the WTO Agreement. Furthermore, on alcoholic beverages, some Members sought clarification regarding the excise warehouses of the Russian Federation and whether this would be extended to imported products. They considered that an extension to imported products would create a barrier to trade and could have a discriminatory result.

405. In response, the representative of the Russian Federation stated that the differentiation of excise tax rates applied to specific categories of alcoholic beverages (beer, wine and spirits) was based on the principle of harmonizing the applied rate of taxation with the concentration of pure alcohol in those beverages and, therefore, these taxes were not having a discriminatory effect on imports. For example, Russian-produced wines (fortified wines) were subjected to the highest excise rates in comparison with imported wines (natural wines). The representative of the Russian Federation confirmed that the Russian Federation would not apply any system of excise taxation to imported alcoholic products that would be discriminatory.

406. With respect to the excise warehouses for alcoholic beverages, the representative of the Russian Federation explained that, in accordance with Federal Law No. 107-FZ "On the Alteration of Part II of the Tax Code of the Russian Federation and on the Invalidation of Certain Legislative Acts", the regime of excise warehouses for excisable goods had not been applied since 1 January 2007.

407. Noting further that differential rates of excise tax were levied on natural gas depending on whether it was sold in the Russian Federation for export to other CIS countries (15 per cent), or whether it was for export to other countries (30 per cent), some Members felt that this practice was discriminatory and asked how the Russian Federation would bring it into conformity with WTO rules upon accession.

408. The representative of the Russian Federation clarified that the excise tax on sales of natural gas had been eliminated as of 1 January 2004 and replaced by a 30 per cent export duty (see Section on "Export Duties").

409. Some Members also asked for a detailed clarification on the national treatment implications of calculating excise taxes on imports on the customs value plus the total of customs duties and levies payable, while the excise taxes on domestically produced goods were based on actual value only. Members sought the elimination of these practices and a commitment from the Russian Federation that full conformity with WTO provisions would be ensured in the application of excise taxes, as from the date of accession to the WTO.

410. In response to concerns about the inclusion of the customs duty in the taxable base for the excise taxes levied on imports of goods to the customs territory of the Russian Federation, the representative of the Russian Federation stated that this requirement of the legislation of the Russian Federation was consistent with the practice of implementation of the GATT 1994 and the only excisable products partially subject to ad valorem rates were cigarettes. All other were subject to specific rates.

(b) Value Added Tax

411. Some Members requested confirmation that the Value Added Tax (VAT) was now applied in a uniform manner to all domestic and imported products and that this was also the case with respect to CIS countries, including the other CU Parties. Clarification was also requested on whether the same principle applied to imports and exports of energy products such as gas and oil. A Member requested clarification concerning the different VAT treatment of ice-cream produced from milk and dairy products (10 per cent) and ice-cream produced from fruits and berries (18 per cent).

412. In response, the representative of the Russian Federation replied that, in accordance with Chapter 21 of Federal Law No. 117-FZ of 5 August 2000 "Part II of Tax Code of the Russian Federation" (as amended on 30 July 2010) and Federal Law No. 118-FZ of 5 August 2000 "On Introduction of Part II of the Tax Code", VAT was applied in a uniform manner to all domestic and imported products on the basis of the country of destination principle, and that it had also been the case with CIS countries since 1 July 2001, except for bilateral trade with the Republic of Belarus. As from 1 February 2005, on the basis of the Agreement of 15 September 2004 between the Russian Federation and the Republic of Belarus, the country of destination principle was also applied on imports from the Republic of Belarus. An appropriate provision was included in Article 2 of Federal Law No. 102-FZ of 18 August 2004 "On Amending Part II of the Tax Code of the Russian Federation and Other Legislative Acts of the Russian Federation", bringing the legislation of the Russian Federation into conformity with the above Agreement. This was confirmed for Parties to the Customs Union with the implementation, on 1 January 2010, of the Agreement on Indirect Tax on Exports and Imports and, for imports from third countries, in Chapter 7 of the CU Customs Code. An exhaustive list of basic food products and products for children subject to 10 per cent VAT was adopted by Government Regulation No. 908 of 31 December 2004. Ice-cream produced from fruits and berries was not included in the list as it was not a basic dairy product.

413. He noted that, according to the Tax Code of the Russian Federation, VAT was levied at a single rate of 18 per cent for most products. However, according to Articles 149 and 164 of the Tax Code, for some goods, the rates of zero per cent and 10 per cent were applied. The comprehensive list of these goods was presented in Table 26 and Table 27. All these rates and exemptions were applied in a non-discriminatory manner both to domestic and imported goods. Also, according to Article 151 of the Tax Code, goods placed under the specified customs regimes of transit; customs warehouse; re-export; duty free shop; processing under customs control; free customs zone; free warehouse; destruction and refusal in favour of the state, and movement of stores (e.g., fuel-on-board means of transport for consumption during the trip), were exempt from VAT. The tax base for the imposition of the VAT included excise taxes, if any. For imported goods, the tax base for the imposition of the VAT also included customs duties.