Subsoil use payments: the experience of legal regulation in the Russian Federation

Abstract

Oil and gas revenues maintain a leading position in the structure of budget revenues. The variety of payments for the use of subsoil, regular public-legal payments of a non-tax nature enacted by the Law of the Russian Federation on Subsoil (“Subsoil Law”), occupy a special place. Based on an analysis of legislation, judicial practice and legal doctrine, the system of such payments established in the RF Law on Subsoil is examined from the point of view of their legal nature, the quality of legal regulation as well as fiscal significance. In connection with the discussion about the need to include non-tax payments in the text of the Tax Code of the Russian Federation and the scope of tax regulation, the author concludes that such inclusion is inappropriate. He explains his position with a number of objective reasons (factors), primarily the rental nature of payments for subsoil use. Currently, all these circumstances are duly taken into account in environmental legislation (nature resources legislation). The Subsoil Law only establishes minimum and maximum payment rates and determines them depending on the types of work and minerals. The specific rate-set is taking by the evolution coefficients, which are regularly adjusted by the Government of the Russian Federation. Regardless of the types of payments for the use of subsoil (tax or non-tax payments), correction coefficients provided for by the legislative body or established by-laws are applied, which are aimed at equalizing economic conditions for subsoil users. The author notes that non-tax and tax payments for subsoil use come from the same natural source — from the subsoil. Regardless of their legal nature, they are fiscal payments, revenues from the use of mineral resources at various stages and transferred to the budgets of the budget system of the Russian Federation. Therefore, with regard to regular payments, the fact of their inclusion in the system of taxes and fees of the Russian Federation is not essential, especially since the tax authorities are the administrators of these payments. An additional argument in favor of the fiscal nature of non-tax payments for the use of subsoil is the fact that the Environmental Law does not fix the environmental goals of payments, they are not targeted and do not go to any state extra-budgetary funds. The basis for payments for the use of subsoil is the principle of paid use of subsoil, which applies to all types of environmental management and has been expressed in all natural resource laws, most of which are codified acts. The author proposes to modernize one-off payments, fixing all the elements of such payments directly in the law, and not in adopted ad hoc legal acts of a regulatory nature.