Filippov P.M. The Paradoxes of the Law and Judicial Practice Involving the Lease of Land Plots
DOI: https://doi.org/10.15688/lc.jvolsu.2021.4.25
Pyotr M. Filippov, Doсtor of Sciences (Jurisprudence), Professor, Departament of Civil Law and Procedure, Volgograd Institute of Management, Branch of the Russian Academy of National Economy and Public Administration Under the President of the Russian Federation, Gagarina St, 8, 400066 Volgograd, Russian Federation, This email address is being protected from spambots. You need JavaScript enabled to view it. , https://orcid.org/0000-0002-7406-5590
Introduction: the paradox of the judicial practice on claims of the municipal authorities on forcing the conclusion of lease agreements of land plots with the owners of parking spaces in the underground parking lots (garages). The Tax Code of the Russian Federation (Article 15 of the Tax Code of the Russian Federation) establishes a fee for the use of land. The forms of payment for the use of land are land tax and rent. Article 15 of the Tax Code of the Russian Federation establishes that the land tax refers to local taxes and the payment for it goes to the local budget of the municipality in whose territory the tax was introduced. The right of ownership of land (real estate) is registered and is publicly available. The tax authorities immediately issue payment receipts and the owners pay the tax, so the payment for the use of land is observed. Nevertheless, the municipal authorities (the departments of municipal property of the DMI) require owners to conclude lease agreements, lease their property and pay a fee to the local budget. The courts satisfy such claims and create a paradox that does not meet the requirements of the Constitution of the Russian Federation (Article 36), the requirements of the Civil Code of the Russian Federation, which establishes that the landlord can only be the owner or a person authorized by law or the owner to lease the property (Article 608 of the Civil Code of the Russian Federation). It is paradoxical, but that’s the fact that the owner of his property becomes both a landlord and a tenant of his property. And the departments receive double payment for the use of land in the form of a local tax and in the form of rent. It is necessary to formulate the norms of the Tax Code of the Russian Federation and the Civil Code of the Russian Federation more clearly and expressly so that there is no possibility of a paradoxical interpretation of the procedure for their application. In addition, the courts recognize the owner as unreasonably enriched, since the registered ownership of the land plot is not considered a sufficient legal basis to use his property. The purpose of the study is the author’s attempts to show contradictions in the judicial practice on the application of the norms of the Constitution of the Russian Federation, the Tax Code of the Russian Federation, and the Civil Code of the Russian Federation. Methods: in the process of the research, the method of a systematic approach to the study of legal concepts, comparative legal analysis, and synthesis was used. Results: the author clearly shows the conflict of interests of the owners of land plots and the departments of municipal property. As a result of the study, it is shown that the wording of the norms of the Tax Code of the Russian Federation and the Civil Code of the Russian Federation allows them to be interpreted differently and, accordingly, applied differently. Conclusions: the author proposes the rules for the exact interpretation of the norms of law and changes in the judicial practice in such cases.
Key words: land lease agreement, object of the lease agreement, object of taxation, individualizing features of the object of the land lease agreement and the object of taxation, forms of payment for the use of land.
Citation. Filippov P.M. The Paradoxes of the Law and Judicial Practice Involving the Lease of Land Plots. Legal Concept = Pravovaya paradigma, 2021, vol. 20, no. 4, pp. 184-188. (in Russian). DOI: https://doi.org/10.15688/lc.jvolsu.2021.4.25
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