Status of letters from the Federal Tax Service: a normative act or just clarifications? (Danchenko S.P.). Regulations Are ministerial letters regulations

The Ministry of Health of Russia expressed the position that a higher medical education, a document on the completion of residency (internship), a certificate of a specialist in the specialty "health organization and public health", the presence of at least 5 years of work experience is necessary for 3 positions:

Head of medical organization

Deputy head of a medical organization responsible for the implementation of medical activities,

Supervisor structural unit other organization responsible for the implementation of medical activities.

The Ministry of Health of Russia said that it considers the lack of appropriate education a gross violation of licensing requirements.

We remind you that liability for such violation for commercial medical organizations is from 100 to 200 thousand rubles. or suspension of activities for up to 90 days, for non-commercial - from 150 to 250 thousand rubles. or suspension of activities for up to 90 days.

In addition, the Ministry of Health of Russia informed that it had prepared a draft amendment to the Decree of the Government of the Russian Federation on licensing medical activities to exclude the requirement for a certificate in organizational health, as well as the exclusion from licensed activities of organizing health care and public health.

We believe that the requirement that both the head and the deputy head must have a medical education is redundant and contradicts the meaning of the decree of the Government of the Russian Federation. The resolution implied that either the head or the deputy head for medical activities must have a medical education, and if we are talking about an organization where only a separate structural unit is engaged in medical activities, then the head of such a unit should have an education.

This is how this paragraph was understood in practice, including by inspection bodies. Moreover, the introduction of all 3 positions is not only not necessary, but also impossible (if the organization is engaged only in medical activities).

The classification of such a violation as gross is also questionable, since a violation can be considered as such only if it poses a threat to the life or health of patients or has caused harm.

The letter of the Ministry of Health is not a regulatory legal act and is not mandatory for use. At the same time, there is a risk of difficulties in licensing and passing inspections by Roszdravnadzor.

FULL TEXT OF THE LETTER:

MINISTRY OF HEALTH OF THE RUSSIAN FEDERATION

Organization Department medical care and health resort business of the Ministry of Health of Russia, within the established powers, considered the letter and reports the following.
Please note that the clarifications of a public authority are legally valid if this authority is vested in accordance with the law Russian Federation special competence to issue clarifications on the application of the provisions of regulatory legal acts.
The Ministry of Health of Russia is not empowered by the current legislation to clarify the legislation of the Russian Federation. However, we believe it is possible to note the following.
In accordance with clause 46 of part 1 of article 12 federal law dated 04.05.2011 N 99-FZ "On licensing certain types activity" (hereinafter - Federal Law N 99-FZ), medical activity (with the exception of the specified activity carried out by medical organizations and other organizations that are part of the private healthcare system on the territory of the Skolkovo Innovation Center) is a licensed type of activity.
Subparagraphs "c" and "d" of paragraph 4 of the Regulations on the licensing of medical activities (with the exception of the specified activities carried out by medical organizations and other organizations that are part of the private healthcare system on the territory of the Skolkovo innovation center) (hereinafter referred to as the Regulations), approved by the resolution of the Government of the Russian Federation dated April 16, 2012 N 291, it is stipulated that the licensing requirements for an applicant for a license to carry out medical activities are, among other things, that the head of a medical organization, deputy heads of a medical organization responsible for carrying out medical activities, the head of a structural unit of another organization responsible for the implementation of medical activities - higher medical education, postgraduate and (or) additional vocational education provided for qualification requirements to specialists with higher and postgraduate medical education in the field of health care, a certificate of a specialist, as well as additional professional education and a certificate of a specialist in the specialty "health organization and public health", the presence of work experience in the specialty for at least 5 years.
Thus, in the first part of subparagraph "c" of paragraph 4 of the Regulations, three positions are listed that require higher medical education, postgraduate and (or) additional professional education, provided for by the qualification requirements for specialists with higher and postgraduate medical education in the field of healthcare - head medical organization, deputy heads of a medical organization responsible for the implementation of medical activities, the head of a structural unit of another organization responsible for the implementation of medical activities.
In accordance with paragraph 6 of the said Regulations, the implementation of medical activities in gross violation of licensing requirements entails liability established by the legislation of the Russian Federation.
In this case, a gross violation is understood as a failure by the licensee to comply with the requirements provided for in paragraph 4 and subparagraphs "a", "b" and "c (1)" of paragraph 5 of the said Regulation, which entailed the consequences established by part 11 of article 19 of Federal Law N 99-FZ .
In addition, we would like to inform you that a draft resolution of the Government of the Russian Federation "On Amendments to the Regulations on the Licensing of Medical Activities (with the exception of the specified activities carried out by medical organizations and other organizations that are part of the private healthcare system, on the territory of the Skolkovo innovation center)" (hereinafter referred to as the draft resolution). This draft resolution excludes the requirement for a certificate in the specialty "health organization and public health" from the licensing requirements for heads of medical organizations, deputy heads of medical organizations responsible for carrying out medical activities, if they intend to provide first aid.
The draft resolution also provides for changes in terms of exclusion from the list of works (services) constituting medical activity, works (services) on the organization of healthcare and public health.

Deputy Director of the Department
E.V.KARAKULINA

Letters of the Ministry of Health of Russia and Orders of the Ministry of Health and Social Development of Russia are what? Letters from the Ministry of Health of Russia are...? Orders of the Ministry of Health and Social Development of Russia are...? Are regulations binding? Or are they abnormal? Are they equal to the normative legal act of ministries and departments? Regulatory or other act (non-normative)?

Answer

Photo by Evgeny Smirnov, IA Clerk.Ru

Let's start with what kind of legal acts explaining the legislation. What is their "strength"?

These are documents (acts) by which ministries, departments (other authorities) explain the legislative norms. Is not legal document. And often from their text it follows that some department approved them in order to be used by a territorial subdivision. It turns out that the act is applied by the territorial department, and through its activities - by citizens or legal entities.

On February 15, V. Putin signed a bill amending Article 43-4 of the Federal Law "On Arbitration Courts in the Russian Federation" and Article 2 of the Federal Law "On the Supreme Court of the Russian Federation." According to the amendments, which will come into force on March 17, several instances can consider cases of contesting documents and legal acts clarifying the legislation. Let's find out which ones.

What courts handle disputes?

You can challenge regulations or explanatory documents adopted by regional authorities:

• in supreme courts republics,
• in regional/regional courts,
• in the courts of federal cities or the courts of autonomous regions/autonomous districts.

• patent rights;
• rights to selection achievements;
• rights to topologies of integrated circuits;
• rights to production secrets (know-how);
• rights to means of individualization of legal entities, goods, works, services and enterprises;
• the right to use the results of intellectual activity as part of a single technology.

What is the procedure for considering cases in the Supreme Court of the Russian Federation?

An administrative claim for the recognition of an act that has normative properties as invalid can be filed:

• citizen against whom this act is applied;
• public association - in defense of the rights, freedoms and legitimate interests of all its members,
• prosecutor (within his competence),
• all other subjects that have the right to challenge normative acts (parts 1-4 of article 208 of the RF CAS).

It is very important to indicate specifics in the statement of claim: what exactly the act violates and how it affects the rights or legitimate interests of the plaintiff. Otherwise, the court will not accept the application (Clause 3, Part 1, Article 128 of the RF CAS, as amended).

Consideration period: within three months from the date of filing an administrative statement of claim (part 1 of article 213 of the CAS RF).

Important: citizens without a higher legal education has the right to participate in the dispute only together with representatives (part 9 of article 208 of the RF CAS).

What does the court find out when considering a case on contesting an act of an explanatory nature?

• whether the act violates the rights, freedoms and legitimate interests of the administrative claimant or the person in whose interests the claim is filed;
• whether the act has normative properties that allow it to be applied repeatedly as a generally binding prescription in relation to an indefinite number of persons;
• whether the provisions of the act correspond to the meaning of the norms of legislation explained by it.

If the court establishes all of the above facts, then the act will be declared invalid in whole or in part. From what date? From the date of its adoption or from another date determined by the court.

If the court establishes that the document does not have normative properties and complies with the content of the normative provisions explained by it, then the statement of claim will be dismissed.

The procedure for considering disputes in intellectual property courts is similar. The SIP makes a decision on recognizing the disputed act either as not having normative properties and corresponding to the normative provisions explained by it, or as not fully or partially in force (Article 195.1 of the Arbitration Procedure Code of the Russian Federation).

Who can apply for the invalidation of an act containing clarifications that relate to the rights to the results of intellectual activity (parts 1-2 of article 192 of the Arbitration Procedure Code of the Russian Federation):

• citizens,
• organizations,
• other persons
• prosecutor,
• state bodies, local authorities and other bodies.

Do I have to pay to file a claim?

• 300 rubles - for individuals,
• 4500 rubles - for a legal entity.

With the entry into force of the Law of June 29, 2004 N 58-FZ, the procedure for conducting explanatory work has been changed. Taxpayers have the right to receive information from the tax authorities (including in writing):

on applicable taxes and fees;

on legislation on taxes and fees and on normative legal acts adopted in accordance with it;

on the procedure for calculating and paying taxes and fees;

on the rights and obligations of taxpayers, the powers of tax authorities and their officials;

on the procedure for filling out the forms of documents submitted to the tax authorities.

Informing- bringing to the attention of the taxpayer (reproducing) the information contained in the legislation on taxes and fees and the regulatory legal acts adopted in accordance with it.

The Ministry of Finance of Russia in a letter of 26.01.2005 N ShS-6-01 / [email protected]“On the powers of tax and financial authorities” expressed the following position: “Financial authorities explain any questions of taxpayers related to the application of tax legislation, and tax authorities provide information on applicable taxes and fees, legislation on taxes and fees and regulations adopted in accordance with it. legal acts, the procedure for calculating and paying taxes and fees, the rights and obligations of taxpayers, the powers of tax authorities and their officials, and also explain the procedure for filling out tax reporting.

Thus, questions that do not require a legal assessment and interpretation of the norms of legislation on taxes and fees should be sent to the tax authority, and questions that require analysis of the norms of legislation on taxes and fees and legal assessment should be sent to the Ministry of Finance of Russia.

His written explanations on the application of tax legislation, which, by virtue of Art. 34.2 of the Tax Code of the Russian Federation is given by the Ministry of Finance of Russia, the financial authorities of the constituent entities of the Russian Federation and municipalities, do not contain legal regulations and are not aimed at establishing, changing or repealing legal norms, are not regulatory legal acts, are not subject to preparation, registration and mandatory publication in accordance with the Rules for the preparation of regulatory legal acts of federal executive bodies and their state registration, established by the Decree of the Government of the Russian Federation of August 13 1997 N 1009;

The written explanations of the Ministry of Finance of Russia, the Department of Tax and Customs Tariff Policy of the Ministry of Finance of Russia, contained in various legal databases and other publications, provided at the request of specific taxpayers, are published informally. Such written explanations are not binding on tax authorities, taxpayers, payers of fees and tax agents. According to the Ministry of Finance of Russia, they do not contain legal norms or general rules, specifying regulatory requirements, and are not regulatory legal acts, regardless of who is given the explanation - a specific applicant or an indefinite circle of persons. These letters are of an informational and explanatory nature and do not prevent participants in tax legal relations from being guided by the norms of tax legislation in an understanding that differs from the interpretation set forth by the Russian Ministry of Finance.

Conclusion: letters of the Ministry of Finance are of an informational and explanatory nature on the application of the legislation of the Russian Federation on taxes and fees and do not prevent tax authorities, taxpayers, payers of fees and tax agents from being guided by the norms of the legislation on taxes and fees in an understanding that differs from the interpretation set forth by the Ministry of Finance of Russia. The published written explanations of the Ministry of Finance of Russia should be taken by the subjects of tax legal relations along with other publications of specialists in this field.

The Ministry of Finance of Russia in its letter dated January 13, 2005 N 03-02-07 / 1-1 indicated:

"Officers authorized to sign explanations of the Federal Tax Service of Russia on issues within its competence are the director of the Federal Tax Service of Russia and his deputies. The heads of the territorial bodies of the Federal Tax Service of Russia and their deputies, within their competence, have the right to sign documents of the relevant tax authorities. Officials authorized to sign clarifications The Ministry of Finance of Russia on the application of the legislation of the Russian Federation on taxes and fees is the Minister of Finance of the Russian Federation and deputies of the Minister of Finance of the Russian Federation. Clarifications from other financial authorities may be signed by the heads of the relevant financial authorities and their deputies.

However, later the Ministry of Finance of Russia somewhat expanded its position and in a letter of 06.05.2005 N 03-02-07 / 1-116 determined that officials authorized to express the official position of the Ministry of Finance of Russia in written explanations on the application of the legislation of the Russian Federation on taxes and fees , are:

Minister of Finance of the Russian Federation;

Deputy Ministers of Finance of the Russian Federation.

Thus, only the clarifications on taxes and fees of the above officials are the official position of the Russian Ministry of Finance.

On behalf of the Department of Tax and Customs Tariff Policy, its director and deputies act respectively.

If the taxpayer (payer of fees, tax agent) was guided by a written explanation from the Ministry of Finance of Russia (Department of Tax and Customs Tariff Policy of the Ministry of Finance of Russia) on the procedure for calculating, paying tax (fee) or on other issues of applying the legislation on taxes and fees, which was addressed to this taxpayer (payer of fees, tax agent) in connection with the performance of the duties of a taxpayer (payer of fees, tax agent), the norms of paragraph 8 of article 75 and subparagraph 3 of paragraph 1 of article 111 of the Tax Code on non-calculation of penalties on the amount of arrears are applied to it formed by the taxpayer (payer of the levy, tax agent) as a result of the implementation of the legislation, taking into account the position set out in such an explanation, and on the exclusion of the guilt of a person in committing a tax offense as a result of the taxpayer (payer of the levy, tax agent) following the specified written explanation.

Note: the courts of three instances canceled the fine and penalties for the taxpayer who followed the explanations of the Ministry of Finance, and agreed with the taxpayer that there were no grounds to charge him a fine and penalties, since he was guided by the position of the Ministry of Finance set out in the letter. At the same time, the courts rejected the inspection's reference to the fact that the letter was not addressed specifically to the company. The Supreme Arbitration Court of the Russian Federation came to a similar conclusion back in 2010 (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 30, 2010 No. VAC-4350/10 in case No. A46-9365/2009). The taxpayer in the same situation was supported by the Arbitration Court of the Ural District (Resolution of the Arbitration Court of the North Caucasus District of April 17, 2019 in case No. A32-1410/2018).

In its Resolution No. 34-P dated November 28, 2017, the Constitutional Court of the Russian Federation noted the following:

• Interpretation of tax rules that worsen the position of the taxpayer is not retroactive

In paragraph 3.2, the CC notes that a change by the legislator of previously established rules that has an adverse effect on legal status affected persons should be carried out in such a way as to respect the principle of maintaining citizens' confidence in the law and the actions of the state, presupposing the preservation of reasonable stability legal regulation and the inadmissibility of introducing arbitrary changes to the existing system of norms, as well as, if necessary, providing citizens with the opportunity, in particular through temporary regulation, to adapt to the changes introduced within a reasonable transitional period; observance of this principle - in the absence of proper regulatory certainty of legal regulation - is essential for ensuring the unity of law enforcement practice; at the same time - based on the constitutional principle of the inadmissibility of giving retroactive effect to a law that establishes or aggravates liability (Article 54 of the Constitution of the Russian Federation), worsens the position of taxpayers (Article 57 of the Constitution of the Russian Federation), - a decision of a higher court containing an interpretation of a rule of law cannot have retroactive effect. , as a result of which the position of the taxpayer worsens, in good faith, i.e. without any abuse (creation of various forms of tax evasion and (or) their illegal reduction, etc.) operating within the framework of the interpretation of the relevant regulations that was established at the time of such a change (Decree of the Constitutional Court of the Russian Federation dated May 24, 2001 N 8-P, dated March 5, 2013 N 5-P, dated January 21, 2010 N 1-P, dated October 17, 2017 N 24-P, etc.).

Conclusion: A decision of a higher court is not retroactive if it reinterprets the rules of law and such an interpretation worsens the position of a conscientious taxpayer. This means that additional taxes, penalties and fines should be charged for the periods before the change judicial practice it is forbidden. It is important that the taxpayer, during the period of a positive interpretation of tax rules for himself, does not abuse his rights (does not evade paying taxes).

• The Ministry of Finance and the Federal Tax Service should explain how to pay taxes, even if they need information from another body

Thus, the Constitutional Court of the Russian Federation, paragraph 4 of the said resolution, actually prohibited the Ministry of Finance and the Federal Tax Service from giving replies in situations where the issue of the application of tax legislation is related to areas of regulation that have their own authorized bodies, indicating to the Ministry of Finance and the Federal Tax Service that "In cases where the purpose of obtaining such clarification is the desire of the taxpayer to have an idea about his rights and obligations in tax legal relations, he should apply to the financial, tax or other state authority authorized to give written explanations on the procedure for calculating, paying tax or on other issues of applying the legislation on taxes and fees. in turn, the authorized body of state power (with insufficient awareness of the substance of the issue posed to it) is entitled to obtain additional information using the procedures of interdepartmental interaction, including involving that state in resolving the issue raised by the taxpayer a relevant authority, which, due to its departmental specialization, has the necessary competence in the relevant area of ​​regulation, however, on the basis of this information, it must - due to its specialization (exclusive competence) in tax matters - make a decision independently.

If the written explanations of the Ministry of Finance of Russia on the application of the legislation of the Russian Federation on taxes and fees are not consistent with the decisions, resolutions, information letters The Armed Forces of the Russian Federation, tax authorities, starting from the day of their official publication in the prescribed manner, when exercising their powers, are guided by the indicated acts and letters of the courts (letters of the Ministry of Finance of Russia dated January 29, 2019 No. 03-04-05 / 5059, dated January 16, 2019 No. 03-04-05/1564)

Obligations of tax authorities to clarify tax legislation

1. Be guided by written explanations of the Ministry of Finance of Russia

At the same time, the Tax Code establishes the obligation of tax authorities to be guided by written explanations of the Ministry of Finance of Russia addressed to specific applicants (due to the fact that these explanations do not contain legal norms), and obliges tax authorities to be guided by explanations addressed to the Federal Tax Service of Russia. The latter are considered as directed within the framework of coordination and control of the activities of the Federal Tax Service of Russia (the powers of the Ministry of Finance of Russia in this area are determined by the Regulations on the Ministry of Finance of the Russian Federation) and are intended to clarify the position of the Ministry as a federal executive body authorized in the field of developing tax policy, subordinated to the federal service.

At the same time, the clarifications sent by the Ministry of Finance of Russia to the Federal Tax Service of Russia are also not regulatory legal acts, do not contain legal norms and are not aimed at establishing, changing or repealing legal norms, and are also not subject to preparation and registration in the manner established for regulatory legal acts.

2. Duty of tax authorities to provide explanations on the procedure for calculating and paying taxes and fees

In accordance with subparagraph 4 of paragraph 1 of Article 32 of the Tax Code, the tax authorities are obliged to provide explanations on the procedure for calculating and paying taxes and fees.

tax liability for.

Explanation of the legislation of the Russian Federation, the practice of its application, as well as the interpretation of norms, terms and concepts are carried out by the federal executive authorities at the request of citizens in cases where they are entrusted with a corresponding duty or if it is necessary to justify a decision made at the request of a citizen (clause 12.4 Model regulations for the internal organization of federal executive bodies, approved by Decree of the Government of the Russian Federation of July 28, 2005 N 452).

A citizen (individual) has the right to receive from government agencies, local self-government bodies, their officials in the manner prescribed by the legislation of the Russian Federation, information directly affecting his rights and freedoms - .

Legal relations related to the exercise by a citizen of the Russian Federation of the right assigned to him by the Constitution of the Russian Federation to apply to state bodies and local self-government bodies are regulated by Federal Law No. 59-FZ of 02.05.

Citizens have the right to apply in person, as well as send individual and collective appeals, including appeals of associations of citizens, including legal entities, to state bodies, local governments and their officials, to state and municipal institutions and other organizations entrusted with the implementation of publicly significant functions, and their officials.

Consideration of citizens' appeals is free of charge.

citizen in his written communication must indicate either the name of the state body or local self-government body to which he sends a written appeal, or the surname, name, patronymic of the relevant official, or the position of the relevant person, as well as his surname, name, patronymic (the latter - if any), postal the address to which the response should be sent, notification of redirection of the appeal, sets out the essence of the proposal, application or complaint, puts a personal signature and date.

An appeal received by a state body, local self-government body or official in form electronic document , is subject to consideration in the manner prescribed (clause 3, article 7 of the Federal Law of 02.05.2006 N 59-FZ). In the appeal, a citizen must indicate his last name, first name, patronymic (the last one - if available), address Email, to which the response should be sent, notification of redirection of the appeal. A citizen has the right to attach to such an appeal the necessary documents and materials in electronic form.

An appeal received by a state body, a local government body or an official in accordance with their competence is subject to mandatory consideration.

A written appeal is subject to mandatory registration within three days from the date of receipt by a state body, local government body or official. A written appeal is considered within 30 days from the date of registration of a written appeal.

A written appeal received by the highest official of a constituent entity of the Russian Federation (head of the highest executive body state authorities of the subject of the Russian Federation) and containing information about the facts of possible violations of the legislation of the Russian Federation in the field of migration, is considered within 20 days from the date of registration of the written application.

Personal reception of citizens in state bodies, local self-government bodies is carried out by their heads and authorized persons. Information about the place of reception, as well as the days and hours established for reception, is brought to the attention of citizens.

A written appeal accepted during a personal reception is subject to registration and consideration in the manner prescribed by the Federal Law of 02.05.2006 N 59-FZ (clause 4 of article 13 of the Federal Law of 02.05.2006 N 59-FZ).

State bodies and local self-government bodies are obliged to provide access, including using information and telecommunication networks, including the Internet, to information about their activities in Russian and the state language of the corresponding republic within the Russian Federation in accordance with federal laws , the laws of the constituent entities of the Russian Federation and the regulatory legal acts of local governments.

A person wishing to receive information about the activities of state bodies and local self-government bodies, access to which is not limited, is not obliged to substantiate the need to receive it.

The clarifications of a state authority have legal force only if the body is endowed, in accordance with the legislation of the Russian Federation, with special competence to issue clarifications on the application of the provisions of regulatory legal acts.

Clause 2 of the Rules for the preparation of regulatory legal acts of federal executive bodies and their state registration, approved by Decree of the Government of the Russian Federation of 08.13.1997 N 1009, defines an exhaustive specific list of regulatory legal acts issued by federal executive bodies: resolutions, orders, rules, instructions, provisions. The publication of normative legal acts in the form of letters, orders and telegrams is not allowed.

Documents issued in a form not provided for by the regulatory legal acts of these state or municipal bodies do not acquire legal force. Explanations of the considered federal executive bodies are made out in the form of letters.

As a rule, clarifications are of an informational, explanatory and advisory nature regarding the application of the legislation of the Russian Federation. They are not binding on either the law enforcement officer or the natural or legal entity who made the corresponding request, are not of a legal nature and do not give rise to any legal consequences, but they help to understand the content of legal norms and form a legal position.

List of executive authorities authorized to provide explanations of the legislation

Ministry of Internal Affairs of the Russian Federation (MVD of Russia)

(Ministry of Internal Affairs of Russia)

Ministry of Foreign Affairs (MFA of Russia)

(Russian Foreign Ministry)