The period for entry into force of a regulatory act increasing the amount of recycling collection cannot be less than a month. This is the position of the Constitutional Court (CC), which considered the complaint of the company, which in 2023 did not manage to import a batch of agricultural machinery before the rates were raised. Lawyers believe that other market participants who imported cars and equipment in 2023–2024 can take advantage of the Constitutional Court’s position, when less than a month passed from the publication of resolutions to the increase in recycling collection. But market participants doubt that businesses will want to spend money on long trials.
The Constitutional Court found the Russian government’s resolution of June 9, 2023, which increased recycling rates for tractors with power from 30 to 340 horsepower from July 1, 2023, to be inconsistent with the Constitution. This is stated in the message of the Constitutional Court following the consideration of the complaint of the Terra Group agricultural equipment dealer.
In January 2023, the company entered into an agreement with the Kazakh Agromashholding KZ for the supply of 34 tractors worth more than €6 million, and in March signed the specifications for it, making an advance payment. After the delivery of the equipment, Terra Group submitted a calculation of the disposal fee to the customs authority on July 6 (4.3 million rubles), but the company was asked to pay 17.5 million rubles. at new rates. Terra Group challenged the decision, pointing out that according to tax legislation, acts of the Russian government come into force no earlier than a month from the date of publication, with the exception of cases that improve the situation of the payer. But the Moscow Arbitration Court and higher courts refused the company.
The Constitutional Court noted that there are no sufficient grounds for the entry into force of a regulatory act increasing recycling collection to be less than a month.
They added that the government can set a longer period for taxpayers to adapt to new conditions, and if the recycling fee is reduced, it can determine a different procedure for putting such an act into effect or give it retroactive effect. The challenged regulation remains in effect, but is subject to application after a month from the date of publication, the court emphasized. The Terra Group case is subject to review. Kommersant sent questions to the Ministry of Industry and Trade.
Senior manager of the Kept tax dispute resolution group (representing the interests of Terra Group), Natalya Faizrakhmanova, calls it important for the Constitutional Court to recognize the need to ensure standards for establishing or changing payments, not lower than those provided for by tax legislation: “This position, although it follows from previously issued decisions, is formulated for the first time.” According to lawyer, senior partner of Zalesov, Timofeev, Gusev and Partners Vladimir Chikin, the main conclusion from the resolution is that the state retains the right to increase the recycling fee, but in such a way that the business has time to rebuild planned deliveries and financial calculations.
1.6 trillion rubles
may amount to revenues to the Russian budget from recycling collection in 2026.
According to Natalya Faizrakhmanova, as a general rule, decisions of the Constitutional Court apply to the future application of a norm recognized as unconstitutional, and only the applicant’s case or decisions that have not entered into force can be reviewed. But, she adds, in this case the very essence of the dispute relates to the past period. Therefore, the lawyer believes, in this and other cases when an increase in the recycling fee rate was introduced earlier than a month after the publication of the relevant act, payers have the opportunity to return the overpaid fee. Alexander Kazarin, head of special projects practice at Vegas Lex, also notes that the resolution of the Constitutional Court of the Russian Federation provides grounds for reviewing cases involving companies that find themselves in a situation similar to Terra Group. For completed cases, a separate basis for review will be required, noted lawyer, partner of the law firm atLegal Andrey Toryannikov.
Vladimir Chikin notes that the practical significance of a decision can go far beyond the circumstances of a particular case.
According to him, companies that paid the recycling fee from August 1 to August 6, 2023 and from October 1 to October 12, 2024 can also check the presence of an overpayment and assess the prospects for its return. In the first case, according to a government decree dated July 7, 2023, from August 1, recycling rates were increased for some cars, light commercial vehicles, trucks and buses. The second deals with an increase in the recycling fee for road construction equipment from October 1, 2024, according to the decree of September 13.
Kommersant’s interlocutor on the market, however, doubts that a wave of lawsuits is worth waiting for, given that the size of the potential benefit may turn out to be insignificant, given the costs of years of litigation.
