On 16 September 2016 the Commercial Court of Kemerovo Region delivered a decision in case No. A27-13534/2016.
In the context of the case, the court considered a dispute between OOO Novostroy and the Federal Tax Service Inspectorate for the Central District of the City of Novokuznetsk (Kemerovo Region). The case concerned the applicability of the property tax exemptions stipulated by item 21 of article 381 of the RF Tax Code (in relation to energy-efficient buildings) to shopping malls (shopping and entertainment centers, in Russian: torgovo-razvlekatelnye tsentry).
According to the circumstances of the case, OOO Novostroy built a shopping mall and obtained an energy performance certificate in relation thereto confirming its level “A” energy efficiency class. Based thereupon, the taxpayer claimed a property tax exemption. In the opinion of the Inspectorate, the exemption was claimed improperly, since energy efficiency classes for buildings and structures are not established by applicable laws.
The court disagreed with the Inspectorate’s position and found its decision illegal, indicating as follows:
- Item 21 of article 381 of the RF Tax Code sets forth two separate grounds for claiming the exemption: (1) the property is listed as energy efficient by the Resolution of the RF Government and (2) the possibility of confirming the property’s high level of energy efficiency is stipulated by the RF legislation;
- Law No. 261-ФЗ defines the energy efficiency requirements for buildings, structures, and installations;
- Since the shopping mall consumes energy above the value set by the RF Government, a mandatory energy inspection is conducted in relation thereto, upon the results of which the building’s energy efficiency class is recorded in the energy performance certificate (Order of the RF Ministry of Energy No. 400).
The taxpayer’s successful defense of its position in court does not change the fact that the tax authorities pay special attention to the use of property tax exemptions by the taxpayers. In the given case, it should be noted that the Inspectorate attempted to refer to a similar case in which the taxpayer was denied the use of the exemption. However, the court rejected this argument, indicating that the circumstances of the case do not match the established facts in the given dispute.
Thus, the ability to claim property tax exemptions is largely determined by the particular circumstances, which are not always easy to evaluate correctly. Members of Dentons’ tax practice, based on the their considerable advisory and litigation experience, will be happy to provide comprehensive support to commercial and manufacturing companies, as well as commercial real estate developers and owners in the area of property taxation, including analysis of the accuracy of the calculation of a company’s current tax liabilities, evaluation of the applicability of tax exemptions, and assistance with respect to obtaining the necessary supporting documentation.
As a result of collaboration with Dentons, companies in the commercial real estate sector can expect efficient management of their tax risks, as well as the optimum utilization of all legal arrangements in the course of tax disputes resolution.