On February 5, a court hearing was held in the Supreme Court to consider the cassation appeal of the Moscow Customs in case No. A40-121786/2023 against the judicial acts of three instances adopted in favor of the Russian importer of disposable electronic nicotine delivery systems GULBAKHAR RUS LLC. The requirements of the customs were satisfied.

The editorial board of the Lawyer of Foreign Economic Activity followed many similar disputes related to additional taxation by the customs authorities of excise duty on one-time electronic payment documents, judicial acts, including definitions of the Supreme Court, on which they were contradictory (for example, cases no. A40-171339/2022, A51-2493/2023).

The cassation appeal in case no. A40-121786/2023 is the first one considered at a court session of the Judicial Board for Economic Disputes of the Supreme Court, therefore, the position of the Supreme Court in this case is of particular interest.

All these disputes are united by one circumstance - the ESDS were subject to excise tax until March 01, 2023. After March 01, 2023, excise duty is levied only on liquids for medicinal products in accordance with paragraph 1 of Article 193 of the Tax Code of the Russian Federation (https://www.alta.ru/tamdoc/00fz0117/#st193 ).

On February 5, the Supreme Court announced the operative part of the ruling, satisfying the requirements of customs, thereby concluding that the excise tax was levied by customs (Article 191 of the Tax Code of the Russian Federation). both for single-use electronic payment cards and for the liquid in their composition, supplied to the customs territory of the EAEU in the form of a single non-collapsible product with individual packaging for retail sale.

 The main arguments of the parties

Representatives of the Moscow customs during the court session stated that according to GOST R 58109-2018, single-use electronic payment cards imported by the importer are multicomponent goods, which include both the electronic payment card itself and the liquid, which are excisable goods (Article 181 of the Tax Code of the Russian Federation). Given the restrictive task of excise duty (reducing the consumption of products harmful to human health), at the time of the declaration of goods, each component had its own excise tax rate (Article 191 of the Tax Code of the Russian Federation), which means that excise duty must be charged on the components as independent goods.

According to customs:

- such an accrual is not a "double" excise tax, but a concern of the legislator for the consumer.;

- the excise tax could be considered "double" if it was levied when filing a customs declaration and when selling goods on the domestic market, but in this case this condition is not fulfilled.  

Maxim Alferov, a representative of GULBAKHAR RUS LLC, disagreed with the arguments of the customs, referring to the indivisibility of the goods (Article 133 of the Civil Code of the Russian Federation), since single-use drugs cannot be disassembled, liquid cannot be isolated from their composition, and they can be refilled (subparagraph 15, paragraph 1, Article 181 of the Tax Code of the Russian Federation). This means, in his opinion, the calculation of excise tax on each component separately contradicts the basic provisions of tax legislation, therefore, the excise tax should be calculated only on liquid.   

According to the society:

- additional charges in this dispute are precisely a "double" excise tax, which is prohibited by tax legislation;

- the legal uncertainty that arose in the presence of a large number of similar legal disputes led to changes in tax legislation - the ESDS were excluded from the list of excisable goods.

During the consideration of the cassator's complaint, the Court asked the representative of the company about the economic feasibility of importing disposable and reusable electronic medical devices into the territory of the EAEU. According to the Court, importers of reusable electronic payment cards are at a disadvantage in relation to importers such as the company, since there is an obligation to pay excise duty for both the device and the liquid, unlike disposable electronic payment cards.  

The representative of the company, referring to the norms of law, stated his point of view.:

- Liquid for reusable electronic medicine, which has individual packaging, imported as a finished product, is subject to excise duty, which means that all importers of electronic medicine are on equal terms.

After the announcement of the operative part of the Supreme Court's judicial act, Maxim Alferov, in a comment for Lawyer of Foreign Economic Activity, reported disagreement with the Court's position and the need to file a supervisory complaint.

 

Roman Romashkin,

"Lawyer of Foreign economic activity"