Good afternoon, colleagues. A year ago, after the reform of Chapter III.1, I published my list of issues that arose as a result of the reform.
And so, over the weekend they sent me a scan of a very interesting document, “similar to the draft Resolution of the Plenum of the Supreme Court of the Russian Federation” (it is available in the attachment to this note). I’ll make a reservation right away that this is a rather crooked scanned copy with handwritten notes from an unknown person, so I don’t presume to say that this document in exactly this form is being considered by the RF Armed Forces at the present time. Moreover, if it is officially published somewhere, I will be very grateful for a link to the “authentic” version (I could not find it on the website of the RF Armed Forces, K+ and Garant).
However, the general appearance of the document, coupled with some rumors circulating in the community since the beginning of the year, suggests that this document clearly comes from the RF Armed Forces.
And this is especially evidenced by its rather original content, which is quite consistent with the spirit of the practice of the RF Armed Forces in such cases over the past six months.
So, I’ll break down some of the most point by point:

1. At the level of the Plenum, the rule introduced by the Administrative Board regarding the consideration of disputes about cadastral value as disputes from public legal relations is consolidated. In fact, there is no justification, it is a bare statement.

I don’t even want to comment on anything here. How many times have they said that the cost characteristics of a plot as a thing (an object of civil law) is a classic subject of private law dispute. This was in Resolution No. 913/11, from which it all began, it was repeated many times at all levels and did not cause much disagreement until the Supreme Court came up with the original idea that “if you argue with a government agency and the outcome of the dispute affects the rights government agencies - this means the dispute is clearly public.” What will happen now with the automatically disappearing three-year limitation periods and the three-month procedural ones applied instead (under Article 256 of the Code of Civil Procedure of the Russian Federation, since the Law on Valuation Activities is not a procedural normative legal act) - I’m afraid to even guess.
Welcome back to 2010, yup...

2. When the Constitutional Court disputes a plot that has been placed on the caducerate after the date on which the GKO was issued, the cost is determined as of the date of registration.

Goodbye to the Vladimirglavsnab case. Goodbye to the correlation between market value and cadastral value. Now it doesn’t matter what is used when setting up учет!} UPKS were calculated on the same date as the cost of the registered plots, and from the same source data. A curtain.

3. It turns out that the cadastral value can be challenged in court not only through an independent demand for its revision, but also through challenging the commission’s refusal to revise it.

I'll just leave this here - art. 24.18 Law on Valuation Activities, quote: "If the results of determining the cadastral value are challenged in court the commission's decision is not the subject of consideration when considering the applicant's claims" .

Contra legem? I think it's obvious.

4. The commission’s decision, it turns out, is also challenged by an application to revise the cadastral value.

Why then was it necessary to name, in fact, a separate requirement in paragraph 3? I don't know.

5. They secured the right to challenge the land value for the tenant of public land and for its potential purchaser, and also gave such a right to the former owner if he paid land tax from the disputed land value.

Everything here is relatively logical. But the Plenum’s answer creates new questions. Does an owner whose right is recognized as absent from the moment of its creation have such a right or whose plot has been restituted/vindicated? Can a former tenant dispute the cost? It somehow turns out half-heartedly, in my opinion.
I'm not even talking about the “option of paragraph 4,” in which the authors of the project propose that the conclusion of a lease agreement based on the cadastral value should be equated to a preventive refusal to file a corresponding claim for the protection of a right before it arises.

6. The Commission for the Review of the Constitutional Court turns out to be an independent entity in the process.

At least in the text, it is unambiguously separated from the body under which it was created. Write an article about her legal personality, or what?

7. It is enough for the shared owner to notify the other co-owners, but it is not at all necessary to obtain their consent to revise the cadastral value.

Perfect. But for some reason they forgot to add that co-owners also have the right to change the total area and boundaries of the site, without the consent of other co-owners, to change the type of permitted use of the site without the consent of other co-owners, and, finally, simply to deregister the site without the consent of other co-owners. What's the difference, really? All these are just “formal legal” issues, so, as they once said on the Internet, “get out of your way.”

8. Technical errors also need to be corrected in the general procedure for revising the Constitutional Code.

I don't even know what to say about this...

9. Delay in entering the results of the State Tax Order into the State Property Committee also delays the start of the period for challenging the Constitutional Court.

In general, an obvious idea. I don’t know why she’s at the Plenum at all.

10. If archival data about the CS is “not usable,” it cannot be disputed.

Does anyone even understand what situation the Plenum is talking about?

11. Rejection of an application by the commission on formal grounds means failure to comply with pre-trial procedure.

Very nice. And in combination with paragraphs. 3 and 4, which say that the commission’s decision should be challenged only by filing an application to the court to review the Constitutional Court, generally results in a win-win combination (for the cadastral chamber).

12. Individual entrepreneurs do not need to first contact the Commission.

What did you say? Clause 2 of Article 23 of the Civil Code of the Russian Federation? Come on, just think, some kind of code, such little things, in essence, the right word...
No, don't get me wrong, essentially I'm all for it. But the second obvious hint of contra legem for one resolution is somehow too much, you know.

13. The CAS has not yet entered into force, but is already in effect.

At least, this will be the case if this paragraph of the Plenum Resolution comes into force before the CAS.

14. The retrospective nature of the revision of the Constitutional Court under Art. 24.20.

Oddly enough, I have nothing to complain about here. Quite clear and precise instructions.

15. Determining the market value is not enough to revise the cadastral value. It is also necessary to prove errors in the cadastral calculation.

But this point is downright scary. For, while providing for the obligation to prove the unreliability of the previous Constitutional Court, it does not describe any clear mechanism for such proof. In my understanding, it turns out that it is necessary not only to bring an individual report, but also to partially challenge the State Defense Committee report.

16. A person who is not an appraiser (does not have appropriate insurance, is not a member of an SRO, etc.) cannot determine the market value of the site.

Warm greetings to the experts of the Ministry of Justice (including in the Kokotov case), however.

17. A forensic expert can check both the appraiser and the SRO expert, even without being an appraiser himself.

“...to build an ideal state, it is necessary to assign two people to check for each man, and over two people to check, three to control, and over those, a whole staff should supervise, plus an independent audit.”(c) M. Uspensky, “White horseradish in a hemp field.”

18. The refusal decision of the Commission is not a “prejudice” for the court.

An obvious thesis, well, thanks for that. (in general, starting from this point, it feels like a completely different person wrote than the previous points)

19. Retrospective application is possible even after the results of the new State Property Committee are entered into the State Property Committee.

Another obvious thought, but in the light of the specific “correct understanding of public service” by some SOJ, it is very timely.

20. The filing date of the application, for purposes of retrospective application, is the date of filing the first application to the commission, even if the review of the Constitutional Court ultimately takes place by court decision.

Again, the idea is obvious, but the corresponding indication from above is clearly not superfluous.

21. The court may establish the cadastral value in a different amount than the applicant requests, if he does not abandon the claim.

Interesting approach. Ambiguous, but, unlike several passages at the beginning, it does not evoke a sharp desire to “make a mechanical movement with the hand to the front of the head.” It seems to me that this clarification was made in case another interested party provides other, more convincing evidence of the cadastral value. While I do not believe that this approach is procedurally appropriate, it is clearly reasonable.

22. The result of the new GKO is disputed by a new claim; the old one cannot be changed.

Good explanation and very timely.

23, 24, 25. Minor procedural issues.

Here, in principle, I have nothing to say.

As always, I would like to hear the opinions of my colleagues.

Recently, disputes about the cadastral value of real estate have become widespread. In an effort to minimize mandatory payments, real estate owners are literally flooding the courts with relevant claims.

The commented resolution contains clarifications of the Plenum of the Armed Forces of the Russian Federation on issues that arise for the courts when considering cases challenging the results of determining the cadastral value. We believe that this material will also be useful to business entities (organizations and individual entrepreneurs) and individuals.

The procedure for determining cadastral value

The concept of cadastral value is given in Art. 3 of Federal Law No. 135-FZ- this is the value established as a result of a state cadastral valuation or as a result of consideration of disputes about the results of determining the cadastral value, or determined in relation to newly registered, previously registered real estate objects and real estate objects in respect of which there has been a change in their quantitative and (or) qualitative characteristics.

State cadastral valuation is carried out in accordance with Ch.III.1 Federal Law No. 135-FZ and includes the following steps:

Making a decision to conduct a state cadastral valuation

Formation of a list of real estate objects subject to state cadastral valuation

Selection of the contractor to determine the cadastral value and conclusion of an agreement with him to conduct the assessment

Determination of cadastral value and preparation of a report on determination of cadastral value

Examination of the report on determining the cadastral value

Approval of the results of determining the cadastral value

Entering the results of determining the cadastral value into the state real estate cadastre

For each property, the state real estate cadastre (hereinafter referred to as the State Real Estate Cadastre) contains information about the cadastral value. Yes, according to pp. 11 clause 2 art. 7 of Federal Law No. 221‑FZ additional information about the property in the State Property Committee is information about its cadastral value.

You can find out the cadastral value of a property by requesting information from the State Property Committee in the form of a cadastral certificate about the cadastral value of the property ( pp. 4.1 clause 2 art. 14 Federal Law No. 221-FZ). Moreover, in accordance with Order of the Ministry of Economic Development of the Russian Federation No. 504 The cadastral value is indicated in both the cadastral extract and the cadastral passport.

What affects the cadastral value of a property?

In accordance with clause 5 art. 65 Land Code of the Russian Federation The cadastral value is established for the purposes of taxation and determining the rent for a land plot that is in state or municipal ownership.

Indeed, first of all, the cadastral value affects the amount of some taxes. Thus, it is the basis for:

• corporate property tax ( Art. 375 Tax Code of the Russian Federation);
• land tax ( Art. 390 Tax Code of the Russian Federation);
• property tax for individuals ( Art. 402 Tax Code of the Russian Federation).

In addition, the cadastral value is used in the following cases:

• to determine the price of a land plot in a contract for the sale and purchase of a plot in state or municipal ownership, without holding a tender ( clause 3 art. 39.4 Land Code of the Russian Federation);
• when determining the starting price of an auction for the sale of a land plot in state or municipal ownership, or the right to lease it ( clause 12 And 14th century 39.11 Land Code of the Russian Federation);
• to determine the price and rent of an agricultural land plot that is in municipal ownership and allocated on account of land shares that are in municipal ownership, when it is transferred to an agricultural organization or peasant (farm) farm for ownership or lease without holding a tender ( clause 5.1 art. 10 of Federal Law No. 101-FZ );
• to determine the price and rent of an agricultural land plot owned by an agricultural organization or peasant (farm) enterprise on the right of permanent (perpetual) use or the right of lifelong inheritable possession ( clause 7 art. 10 of Federal Law No. 101-FZ);
• to determine the price of a share of an agricultural land plot that is in municipal ownership when it is sold to an agricultural organization or peasant (farm) enterprise ( clause 4 art. 12 of Federal Law No. 101-FZ).

Thus, the cadastral value is, first of all, an economic indicator and significantly affects civil turnover.

The procedure for challenging the cadastral value of a property

The specifics of consideration of disputes regarding the results of determining the cadastral value have been established. Individuals and legal entities can challenge the cadastral value (if their rights and obligations are affected), as well as state authorities (OGV) and municipal self-government (OMG) in relation to real estate objects that are state or municipal property. The bodies that consider applications to challenge the cadastral value are the court and the commission for the consideration of disputes regarding the results of determining the cadastral value (hereinafter referred to as the commission). However, individuals are not required to contact the commission before the trial. The commission acts in accordance with the procedure established By Order of the Ministry of Economic Development of the Russian Federation No. 263 .

The basis for the commission to review the results of determining the cadastral value is:

• unreliability of information about the property used in determining its cadastral value;
• establishing in relation to a real estate object its market value on the date as of which its cadastral value was established.

In this case, unreliable information includes distortion of data about the object of assessment made during the cadastral valuation, on the basis of which its cadastral value was determined. For example, incorrect indication of information in the list of real estate objects subject to state cadastral valuation, or incorrect determination by the appraiser of the conditions affecting the value of the real estate property (location of the property being assessed, its intended purpose, permitted use of the land plot, emergency condition of the property, location of the property within sanitary boundaries). protective zones and other zones with special conditions for the use of the territory and other conditions), incorrect use of data when calculating the cadastral value, failure to use information about the emergency condition of the property being assessed. Cadastral errors that affected the size of the cadastral value, as well as technical errors that resulted in incorrect entry of information about the cadastral value into the State Property Committee, should be regarded as unreliable information about the property ( paragraph 13

The procedure for challenging the cadastral value in the commission can be presented in the form of a diagram ( Art. 24.18 of Federal Law No. 135-FZ):

1. Applying to the commission to revise the cadastral value
Reason - unreliability of information about the property used in determining its cadastral value	Grounds - establishment of its market value in relation to the property as of the date as of which its cadastral value was established
Attachments to the application:	Attachments to the application: Cadastral certificate about the cadastral value of the property;
Documents confirming the unreliability of information about the property used in determining its cadastral value; Other documents	- a notarized copy of the title or title document for the property if the application is submitted by the copyright holder; A report drawn up on paper and in the form of an electronic document; A positive expert opinion on paper and in the form of an electronic document regarding the report on determining the market value of the property, prepared by an expert or experts of a self-regulatory organization of appraisers, of which the appraiser who compiled the report is a member; Other documents
2. Review of the application by the commission
3. Decision making
- on the rejection of an application for revision of the cadastral value in the case of using reliable information about the property when determining the cadastral value; On the revision of the results of determining the cadastral value in the event of unreliability of information about the property used in determining its cadastral value	- on determining the cadastral value of a property in the amount of its market value; On the rejection of an application for revision of the cadastral value
4. Sending a notice of the decision to the applicant and the local government body on whose territory the property is located

Features of filing an application to challenge the cadastral value in court

First of all, in clause 1 The commented resolution states that challenging the results of determining the cadastral value means filing any claim, the possible result of satisfying which is a change in the cadastral value of real estate, including challenging the decisions and actions (inaction) of the commission.

In addition to the requirements to establish its market value in relation to the property and to change the cadastral value in connection with the identification of false information, demands may be made to challenge the decision or action (inaction) of the commission ( clause 2 And 4 this document).

It should be noted that cases of challenging the cadastral value in the first instance are considered by the supreme courts of the republics, regional, regional courts, courts of federal cities, the court of the autonomous region and the courts of the autonomous district ( pp. 8 clause 1 art. 26 Code of Civil Procedure of the Russian Federation). In this case, the application is submitted at the location of the customer of the work to determine the cadastral value or the state body that determined the cadastral value ( clause 3 commented resolution). The period for consideration of the application is two months from the date of its receipt by the court.

Applications are not subject to joint consideration with other requirements, for example, for the revision of tax obligations, lease payments, or for declaring a normative legal act invalid.

However, when revising the cadastral value due to unreliable information about the property, at the request of the applicant, the market value of such an object may be established.

According to clause 6 of the commented resolution, the following may apply to the court:

• legal entities and individuals who own real estate under the right of ownership, permanent (perpetual) use or lifelong inheritable possession;
• other persons if the results of determining the cadastral value affect their rights and obligations;
• OGV and compulsory medical insurance in relation to real estate objects that are in state or municipal ownership;
• federal executive authorities, executive authorities of constituent entities of the Russian Federation in relation to land plots, state ownership of which is not demarcated;
• the former owner of the property, if the results of the cadastral valuation affect the rights and obligations of such a person as a taxpayer in the tax period in which the application was submitted;
• participant in shared ownership, regardless of the consent of other co-owners;
• tenants of real estate owned by the state or municipality, when the rent is calculated based on the cadastral value of the property;
• a tenant of property owned by citizens and (or) legal entities, if the rent for the use of the property is calculated based on its cadastral value, with the consent of the owner to such a review in writing;
• a person who has the exclusive right to purchase or lease a land plot that is in state or municipal ownership, if the purchase price or rent of such a plot is calculated based on its cadastral value;
• prosecutor in cases of protecting the rights, freedoms and legitimate interests of citizens, the interests of the Russian Federation, constituent entities of the Russian Federation and municipalities.

The composition of participants is determined in clause 7 commented resolution. Thus, in cases of establishing the cadastral value in the amount of the market value, the state body or local government body that approved the results of determining the cadastral value, and the state body performing the functions of state cadastral valuation, must necessarily participate.

When considering cases of challenging the results of determining the cadastral value in connection with unreliable information about the object of assessment, the body entrusted with the responsibility for correcting the cadastral or technical error is also involved.

In cases of challenging decisions, actions (inaction) of the commission, the interested parties (administrative defendants) are the commission and the state body performing the functions of state cadastral valuation, under which it was created.

In addition, the court may involve other persons in the case whose rights and obligations may be affected by the court decision (owner, co-owner, former owner, co-tenant of the property).

note

An important issue is the statute of limitations.

It has been established that an application for revision of the cadastral value can be submitted to the court no later than five years from the date of entry into the State Property Committee of the disputed results of determining the cadastral value in the event that at the time of applying to the court the next results of determining the cadastral value or information related with a change in the qualitative or quantitative characteristics of the property, resulting in a change in its cadastral value.

Missing the specified deadline is not grounds for refusing to accept the application. If, after the expiration of the period established by law, the next results of determining the cadastral value are not entered into the State Property Committee, the period for filing an application with the court to revise the cadastral value may be restored.

Decisions and actions (inaction) of the commission can be challenged within three months ( P.8 commented resolution).

The application to the court must be accompanied by ( clause 11 of this document):

• cadastral certificate about the cadastral value of the property;
• a notarized copy of the title or title document for the property (if the application is submitted by the copyright holder);
• documents and other data, including those confirming the presence of a cadastral and (or) technical error (if the application is submitted in connection with inaccurate information about the property);
• report prepared as of the date as of which the cadastral value of the property was determined , as well as, if necessary, a positive expert opinion prepared by an expert or experts of a self-regulatory organization of appraisers (if an application to establish market value is submitted).

FYI

Legal entities must attach to the application documents indicating compliance with the pre-trial procedure (consideration of the application by the commission). Such documents may be a decision of the commission to refuse to satisfy an application for revision of the cadastral value or documents confirming the fact of applying to the commission and its failure to consider the application within the period established by law.

If the application was not accepted by the commission for consideration (for example, due to the lack of a report on the market value or title documents), then such an appeal does not indicate compliance with the pre-trial procedure for resolving the dispute.

The pre-trial procedure is not mandatory for individuals, including individual entrepreneurs ( clause 9 And 10

This note was written in development of the course " Problems of state cadastral valuation of real estate" , which I read in the master’s program at the Faculty of Law of St. Petersburg State University. It and subsequent notes in this series are intended to leave some of the problems for students to independently analyze, as well as to offer the issues of cadastral valuation for discussion to all interested.

In 2022, can I challenge the archival cadastral value that was used before 2019, taking into account the fact that now the effect of the challenge extends to the entire past time from the moment the disputed cadastral value began to be applied, and not just from January 1 of the year when the application for challenging? Let's figure it out.

BACKGROUND OF THE QUESTION

When approving the latest results of the state cadastral valuation, Rosreestr replaces the previous cadastral value in the Unified State Register with a new one. The previous value becomes the archival cadastral value. At the same time, the taxpayer and other persons may still have an interest in challenging the archival cadastral value, for example, due to the fact that it continues to be used as a basis for calculating tax in the year in which new cadastral valuation results are approved, which come into force only on next year. In this regard, the question arises: does the taxpayer have the right to challenge the archival cadastral value and bring it into line with the market value?

According to Part 10 of Art. 24.18 Law on Valuation Activities

“an application for revision of the cadastral value may be submitted to commission during the period from the date of entry into the Unified State Register of Real Estate of the results of determining the cadastral value by the date of entry into the Unified State Register of Real Estate of the results of determining the cadastral value obtained during the next state cadastral valuation or in accordance with Article 24.19 of this Federal Law, but no later than within five years from the date of entry into the Unified State Register of Real Estate of the disputed results of determining the cadastral value.

Thus, the Law on Valuation Activities prohibits challenging the archival cadastral value, but does this only in relation to the administrative procedure for challenging through a commission.

In this regard, the Supreme Court of the Russian Federation in paragraph 14 of the Resolution of the Plenum of June 30, 2015 N 28 “On some issues arising when courts consider cases challenging the results of determining the cadastral value of real estate” explained that

“a request for a revision of a cadastral value that has become archival can be considered on its merits if, on the date of application to the Commission or the court, the right to apply the results of such a review for the purposes established by law remains (paragraph five of Article 24.20 of the Law on Valuation Activities).”

In other words, it is possible to challenge the cadastral value if there remains an interest in revision. According to Part 5 of Art. 24.20 of the Law on Valuation Activities, the cadastral value, brought into line with the market value, is applied from January 1 of the year in which the corresponding application for challenge was filed. In this regard, the explanation of the Supreme Court of the Russian Federation was perceived by judicial practice in the sense that if a taxpayer files an application to challenge during the year while the value of the archival cadastral value is applied (for example, in 2019), then he has the right to challenge, since the result of the challenge the archival cadastral value will be replaced by the market value from January 1, 2019, and the market value will be applied at least during 2019. If in 2019 the archival cadastral value was replaced with a new one, and the taxpayer applies to challenge the archival value only in 2020, then he does not have the right to such a challenge, since from January 1, 2020, the archival cadastral value no longer applies, so it replacement with a market one will in no way protect the interests of the taxpayer.

At the same time, the explanation proposed by the Supreme Court of the Russian Federation does not contradict the law, if we accept that it is addressed to the courts, and not to the commissions, since the norm of Part 10 of Art. 24.18 The Law on Valuation Activities limits the right to challenge the archival cadastral value only in the commission, but not in court.

WHAT CHANGED

Firstly, in connection with the change in Art. 378.2, , of the Tax Code of the Russian Federation, for tax purposes, the cadastral value, brought into line with the market value, is applied retrospectively, not from January 1 of the year in which the application for challenge was filed, but from the date of commencement of application of the disputed cadastral value. In other words, full retrospective effect.

Secondly, the Law on Cadastral Valuation was adopted, in accordance with Article 22 of which:

“an application for challenge may be filed to a commission or court from the date of entry into the Unified State Register of Real Estate information about the cadastral value of the property before the date of entry into the Unified State Register of Real Estate information about the cadastral value of such a property, determined as a result of a new state cadastral valuation or as a result of challenging the cadastral value in the manner prescribed by this Federal Law, or in accordance with Article 16 of this Federal Law.”

Thus, now the rule of law prohibiting challenging the archival cadastral value applies to both the administrative and judicial procedures for challenging.

This raises several important questions:

1. Should the right to challenge the archival cadastral value be recognized under the current law on cadastral valuation?

Yes, definitely. As long as the cadastral value is used for tax purposes or for other purposes, the interested party must be given the right to challenge it (based on the general right to judicial protection). Additional arguments are that the date of entering the new cadastral value into the Unified State Register is a random date, and the possibility of protecting rights cannot depend on chance. Secondly, with the opposite approach, the risk of abuse on the part of the authority of a constituent entity of the Russian Federation is not excluded, within the framework of which an act on approval of new cadastral valuation results is adopted at the beginning of the year and thereby closes the possibility of challenging the COP throughout this year.

2. Will the courts be ready to apply the clarification of the Supreme Court of the Russian Federation on counter-legems?

In other words, will the courts be ready to recognize the right to challenge the archival cadastral value, despite the fact that the Law on Cadastral Valuation directly prohibits this? The answer to this question depends rather on the worldview, so I will only suggest that the courts will be bold enough to correctly interpret the Law on Cadastral Valuation and preserve the right to challenge the archival cadastral value.

An additional argument in favor of this conclusion is that clause 3 of Art. 245 CAS RF contains a rule similar to Part 4 of Art. 22 of the Law on Cadastral Valuation, which in its literal text prohibits challenging the archival cadastral value. However, this does not prevent the courts from currently turning a blind eye to it (and rightly so!) and being guided by the explanation of the Supreme Court of the Russian Federation.

3. During what period does the taxpayer retain the right to challenge the archival cadastral value?

Since now, when challenging the cadastral value, the new value of the cadastral value is fully retrospective, the problem of time limits for challenging the archival cadastral value arises. Let’s say the cadastral value was used from 2014 to 2019. In 2019, a new cadastral value was approved, which began to be applied in 2020. Does the taxpayer have the right to challenge the archival cadastral value, for example, in 2024, since he has the right to claim the use of a new value of the archival cadastral value from the very beginning of its application, that is, from 2014?

No, because this introduces endless uncertainty into the content of tax (and other) obligations. There is no moment when we can say that the content of the tax liability is finally formed. And this is associated with the uncertainty of tax revenues of budgets, the inability to ensure budget balance, etc.

Perhaps the right to challenge should be limited to a 3-year period from the date of payment of the tax, which is allotted to the taxpayer for the return of overpaid taxes (clause 7 of Article 78 of the Tax Code of the Russian Federation)? Then, if at the time of making a decision on the application to challenge the cadastral value, the taxpayer retains the right to demand a refund of the overpaid tax calculated on the basis of the disputed cadastral value, then the court can satisfy the corresponding application, otherwise it must refuse. However, in court, the taxpayer has the right to demand a tax refund within 3 years not from the moment of payment, but from the moment when he learned about the violation of his rights. If we accept that the taxpayer learned about the violation of his rights from the moment of challenging the cadastral value, this means that he will always have the right to demand a refund of the overpaid tax, and therefore, the time limits for challenging will again be unlimited.

Taking into account the above, I will put forward the thesis that the taxpayer has the right to challenge the archival cadastral value only as long as such archival cadastral value continues to be applied.

That is, in the example given, when the archival cadastral value was used from 2014 to 2019, its challenge is possible only until the end of 2019. If the taxpayer applies in 2020, then the application must be refused.

PLENATURE OF THE SUPREME COURT OF THE RUSSIAN FEDERATION
ABOUT SOME QUESTIONS,
ARISING WHEN COURTS CONSIDER CASES OF CONTESTATION
RESULTS OF DETERMINING THE CADASTRAL VALUE

REAL ESTATE

In connection with the questions that arise in the courts when considering cases challenging the results of determining the cadastral value, the Plenum of the Supreme Court of the Russian Federation, guided by Articles 2 and 5 of the Federal Constitutional Law "On the Supreme Court of the Russian Federation", decides to give the following clarifications:

To determine the cadastral value of land plots and individual real estate objects (hereinafter referred to as real estate objects), on the basis of a decision of the executive body of state power of a constituent entity of the Russian Federation or in cases established by the legislation of a constituent entity of the Russian Federation, by decision of a local government body (hereinafter also referred to as the customer of the work), a state survey is carried out cadastral valuation, the results of which are entered into the state real estate cadastre (Article 24.12 of the Law on Valuation Activities).

The cadastral value can also be determined in the cases established in Article 24.19 of the Law on Valuation Activities, or established by challenging the results of determining the cadastral value contained in the state real estate cadastre (Article 3 of the Law on Valuation Activities).

In this case, challenging the results of determining the cadastral value means presenting any claim, the possible result of satisfying which is a change in the cadastral value of real estate, including challenging the decisions and actions (inaction) of the commission for resolving disputes about the results of determining the cadastral value (hereinafter referred to as the Commission).

Taking into account the fact that information on the cadastral value of real estate is information from a federal state information resource (state real estate cadastre), is publicly available and is used to determine tax and other payments, approved by a decision of the executive body of state power of a constituent entity of the Russian Federation or by a decision of a local government body, challenging information about the results of determining the cadastral value is carried out according to the rules of proceedings in cases arising from public legal relations; from September 15, 2015 according to the rules (clause 11 of part 2 “On the State Real Estate Cadastre” (hereinafter - the Cadastre Law), article 24.12 of the Law on Valuation Activities, (hereinafter -), article 1 “On entry into force”).

2. The results of determining the cadastral value of a property may be challenged by the applicant, and after September 15, 2015 - by the administrative plaintiff in court by presenting the following requirements:

on establishing its market value in relation to the property; on a change in the cadastral value due to the identification of inaccurate information about the valuation object used in determining its cadastral value, including the correction of a technical and (or) cadastral error (hereinafter referred to as applications for revision of the cadastral value);

to challenge a decision or action (inaction) of the Commission.

Due to the interrelated provisions of Part 1 and Part 1 of Article 246, disputes regarding the revision of the cadastral value are resolved by the court before the expiration of two months from the date of receipt of the application to the court according to the rules of Chapter 23.

4. By virtue of paragraph thirty-six of Article 24.18 of the Law on Valuation Activities, decisions of the Commission can be challenged in court.

5. In order to comply with the rules of jurisdiction and subordination of cases, demands for challenging the results of determining the cadastral value are not subject to joint consideration with other demands, for example, for the revision of tax obligations, lease payments (clause 8 of part 1, clause 15). Depending on the subject composition of the participants in the disputable legal relationship, the judge refuses to accept the application regarding claims that are not subject to joint consideration, on the basis of paragraph 1 of part 1, paragraph 1 of part 1, or returns it in accordance with paragraph 2 of part 1, paragraph 2 of part 1.

Due to the fact that the rules for proceedings in cases of challenging regulatory legal acts are established by Chapter 24, the requirement to declare a regulatory legal act invalid also cannot be considered together with the requirement to challenge the results of determining the cadastral value.

It should be taken into account that when revising the cadastral value due to unreliable information about the property, at the request of the applicant, the market value of such an object can be established.

6. Legal entities and individuals who own a property by right of ownership, permanent (perpetual) use or lifelong inheritable possession, as well as other persons, have the right to file an application, an administrative claim (hereinafter referred to as the application) for a revision of the cadastral value, as well as other persons, if the results of determining the cadastral value value, their rights and obligations are affected (paragraphs one and two of Article 24.18 of the Law on Valuation Activities).

In relation to real estate objects that are in state or municipal ownership, state authorities and local self-government bodies acting on behalf of the relevant public legal entity have the right to apply to the court at the location of such real estate object with an application to revise its cadastral value.

By virtue of the provisions of paragraph 2 of Article 3.3 “On entry into force,” the disposal of land plots, state ownership of which is not delimited, is carried out by local government bodies, and in cases provided for by law, by federal executive authorities and executive authorities of constituent entities of the Russian Federation. Taking this into account, these bodies have the right to apply for a revision of the cadastral value of the relevant land plots.

The former owner of a property has the right to apply for a revision of its cadastral value if the results of the cadastral valuation affect the rights and obligations of such a person as a taxpayer in the tax period in which the application was submitted.

A participant in shared ownership independently participates in tax legal relations and can exercise his right to revise the cadastral value regardless of the consent of other co-owners (clause 1, clause 2, clause 3, article 24.18 of the Law on Valuation Activities).

Tenants of real estate owned by the state or municipality have the right to submit the above-mentioned application in cases where the rent is calculated based on the cadastral value of the property.

If the rent for the use of property owned by citizens and (or) legal entities is calculated based on its cadastral value, the tenant has the right to challenge the specified value when the owner’s consent to such a review is expressed in an agreement or in another written form.

A person who has the exclusive right to purchase or lease a land plot located in state or municipal ownership has the right to challenge its cadastral value if the redemption price or rent of such a plot is calculated based on its cadastral value (, paragraphs 1 and 2 of Article 2, paragraphs 2, 2.2 of Article 3 “On entry into force”).

The prosecutor, in the cases provided for and, has the right to apply to the court to challenge the results of determining the cadastral value in defense of the rights, freedoms and legitimate interests of citizens, the interests of the Russian Federation, constituent entities of the Russian Federation and municipalities.

8. According to paragraph one of Article 24.12 of the Law on Valuation Activities, state cadastral valuation is carried out by decision of the executive body of state power of a constituent entity of the Russian Federation or in cases established by the legislation of a constituent entity of the Russian Federation, by decision of a local government body no more than once within three years (in cities of federal significance no more than once within two years) and at least once within five years from the date as of which the state cadastral valuation was carried out.

In view of the periodicity of the state cadastral valuation established by law, an application for revision of the cadastral value can be submitted to the court no later than five years from the date of entry into the state real estate cadastre of the disputed results of determining the cadastral value in the event that at the time of applying to the court the results of the determination of the cadastral value have not been entered into the state real estate cadastre next results of determining the cadastral value or information related to changes in the qualitative or quantitative characteristics of the property, resulting in a change in its cadastral value (part 3).

Missing the specified deadline is not grounds for refusing to accept the application. If, after the expiration of the period established by law, the next results of determining the cadastral value have not been entered into the state real estate cadastre, the period for filing an application with the court to revise the cadastral value may be restored.

Since the issues of compliance with the deadline for applying to the court relate to the merits of the case, the reasons for missing it are clarified at the court hearing, and the conclusions about its restoration or refusal to restore it in accordance with Part 4, Part 5 must be contained in the court decision.

Decisions and actions (inaction) of the Commission may be challenged within the period established by part 1 of Article 256, part 1.

9. When accepting an application for revision of the cadastral value, the court checks it for compliance with the requirements and, parts 1 - 3.

The preliminary procedure for applying to the Commission established by the first paragraph of Article 24.18 of the Law on Valuation Activities for legal entities, state authorities and local governments is a pre-trial procedure for resolving a dispute. In this regard, the application for challenging the results of determining the cadastral value must be accompanied by documents confirming its compliance.

Compliance with the pre-trial procedure is evidenced by the Commission’s decision to refuse to satisfy the application for revision of the cadastral value or documents confirming the fact of applying to the Commission and its failure to consider the application within the period established by law.

If the application was not accepted by the Commission for consideration (for example, due to the lack of a report on market value or title documents), then such an appeal does not indicate compliance with the pre-trial procedure for resolving the dispute.

10. By virtue of the first paragraph of Article 24.18 of the Law on Valuation Activities, the results of determining the cadastral value can be challenged by legal entities, state authorities and local governments in the Commission and in court.

For individuals, contacting the Commission with such an application is not mandatory (paragraph three of Article 24.18 of the Law on Valuation Activities).

cadastral certificate about the cadastral value of the property, containing information about the disputed results of determining the cadastral value, as well as information about the date on which the cadastral value of the property was determined (information about the date may also be contained in the report on determining the cadastral value, compiled based on the results of the state cadastral assessments, in the act of determining the cadastral value and in other documents);

a notarized copy of the title or title document for the property if the application for revision of the cadastral value is submitted by the person who has the right to the property.

If an application for revision of the cadastral value is submitted in connection with unreliable information about the property used in determining its cadastral value, the applicant also submits documents and other data, including those confirming the presence of a cadastral and (or) technical error.

When submitting an application to establish its market value in relation to a property due to the interrelated provisions of clauses 4 and 5 of part 2 and clause 2 of part 1, the required document is a report drawn up as of the date as of which the cadastral value of the property was determined, as well as a prepared an expert or experts of a self-regulatory organization of appraisers, a positive expert opinion in cases established by the authorized federal body exercising the functions of legal regulation of appraisal activities.

The absence of these documents is grounds for leaving the application without progress in accordance with, and in the event of failure to eliminate the deficiencies specified in the judge’s ruling, grounds for its return (clause 1 of part 1, clause 7 of part 1, parts 4 and 5).

If the fact of the absence of the necessary documents, including an assessment report drawn up on the date as of which the cadastral value of the property was determined and (or) an expert opinion of a self-regulatory organization on this report, becomes clear during the consideration of the case, the court grants the administrative plaintiff a period to eliminate violations, and if they are not eliminated on the basis of paragraph 5 of part 1, leaves the application without consideration.

12. It is necessary to take into account that the objects of assessment when determining the cadastral value are real estate objects, information about which is contained in the state real estate cadastre.

When conducting a state cadastral valuation, the date of determination of the cadastral value is the date as of which a list of real estate objects subject to state cadastral valuation (hereinafter referred to as the List) has been formed, information about which is contained in the state real estate cadastre (paragraph two of Article 24.15 of the Law on Valuation Activities).

In the case of determining the cadastral value of a property registered in the state real estate cadastre on the date of the state cadastral valuation, but not included in the List, the date of determining the cadastral value is the date of formation of the List (paragraph one of Article 24.13 and paragraph one of Article 24.17 of the Law on Valuation Activities).

The date for determining the cadastral value of real estate objects specified in Article 24.19 of the Law on Valuation Activities is the date of entering into the state real estate cadastre information about the formation of a new or identifying a previously unregistered real estate object, or the date of entering information about changes in the qualitative and (or) quantitative characteristics of the real estate object, resulting in a change in cadastral value.

Within the meaning of paragraph one of Article 24.17 of the Law on Valuation Activities, the date of approval of specific indicators used in determining the cadastral value of individual objects specified in Article 24.19 of this law is not the date of determination of the cadastral value of such objects.

If a change in qualitative and (or) quantitative characteristics does not entail a change in the cadastral value of the property, then the date for determining the cadastral value of this property does not change.

When challenging the results of determining the cadastral value, the market value of the property must be established as of the date as of which its cadastral value was determined (paragraph four of Article 24.18 of the Law on Valuation Activities).

13. When considering cases of revision of the cadastral value in connection with unreliable information about the valuation object, it is necessary to take into account that unreliable information includes distortion of data about the valuation object made during the cadastral valuation, on the basis of which its cadastral value was determined. For example, incorrect indication of information in the list of real estate objects subject to state cadastral valuation, or incorrect determination by the appraiser of the conditions affecting the value of the real estate property (location of the property being assessed, its intended purpose, permitted use of the land plot, emergency condition of the property, location of the property within sanitary boundaries). protective zones and other zones with special conditions for the use of the territory and other conditions), incorrect use of data when calculating the cadastral value, failure to use information about the emergency condition of the property being assessed.

14. In accordance with paragraph 7 of Article 4 of the Cadastre Law, when cadastral information is changed, information previously entered into the state real estate cadastre is preserved (hereinafter referred to as archival information).

A request to revise a cadastral value that has become archival can be considered on its merits if, on the date of application to the Commission or the court, the right to use the results of such a review for the purposes established by law remains (paragraph five of Article 24.20 of the Law on Valuation Activities).

If, during the consideration of the case, it is established that the archival cadastral value disputed by the applicant as of the above date is not subject to application, the proceedings on the case are terminated on the basis of paragraph 1 of part 1 and, paragraph 3 of part 1 and part 2.

15. The case regarding the revision of the cadastral value should be considered on its merits, regardless of the fact that before the court makes a decision, the results of the next cadastral valuation are approved or entered into the state real estate cadastre, since the current legal regulation provides for the right of the applicant to recalculate the amount of the tax base from the 1st day of the tax year period, and for other purposes provided for by law, from the 1st day of the calendar year in which the application for revision of the cadastral value was submitted, but not earlier than the date of entry into the state real estate cadastre of the cadastral value, which was the subject of a challenge (clause 15, clause 1, clause 2, article 24.18, paragraph 5 of article 24.20 of the Law on Valuation Activities).

16. It must be taken into account that if, during the consideration of the case, the results of the next cadastral assessment applicable to the disputed property are approved and entered into the state real estate cadastre, the applicant does not have the right to change the requirements in accordance with Part 1, Part 1 and challenge the results of the next cadastral assessment.

In this case, the applicant has the right to apply to the court with an independent claim, subject to the pre-trial procedure for resolving the dispute, when established by law, and the presentation of relevant evidence.

17. When resolving a case at the request of a participant in shared ownership, the court reviews the cadastral value of the property as a whole. If the participants in shared ownership who entered the case as interested parties object to the establishment of a different size of the cadastral value of the property, the court evaluates these objections along with other evidence in the case. At the same time, the disagreement of other co-owners with the revision of the cadastral value in itself is not a basis for refusal to satisfy the stated requirements.

18. When considering cases of revision of the cadastral value, the courts should keep in mind the peculiarities of the validity of the regulatory legal act on the approval of the results of the state cadastral valuation over time.

For purposes not related to taxation (for example, for the purchase of real estate or for calculating rent), these regulatory legal acts are valid from the moment they enter into force. From this moment, the results of determining the cadastral value within the framework of the state cadastral valuation are considered approved, but can be used from the date of entering information about the cadastral value into the state real estate cadastre, with the exception of cases provided for in paragraphs four to six of Article 24.20 of the Law on Valuation Activities.

To the extent that these regulatory legal acts give rise to legal consequences for taxpayers, they operate in time in the manner determined by federal law for the entry into force of acts of legislation on taxes and fees ().

For example, a regulatory legal act on approval of the results of determining the cadastral value, published on December 15, 2014, is subject to application for tax purposes from January 1, 2016.

19. In cases of revision of cadastral value, persons participating in the case are required to prove the circumstances to which they refer in support of their claims and objections.

The obligation to prove the unreliability of information about the property used in determining its cadastral value, as well as the value of the market value established as cadastral value, lies with the applicant (administrative plaintiff) (part 5 and part 1).

If an interested person (administrative defendant) objects to the satisfaction of the application, he is obliged to prove the reliability of information about the object used in determining its cadastral value, the unreliability of information about the market value presented by the applicant, as well as other circumstances confirming his arguments.

The parties also have the right to resolve the dispute regarding the revision of the cadastral value by concluding a reconciliation agreement based on the evidence available in the case (for example, on one of the reports on the assessment of the property submitted by the parties), which must contain the terms of reconciliation, as well as the procedure for the distribution of legal costs (part 4 , ).

20. When examining a report on the appraisal of a real estate property, the court checks it for compliance with the legislation on appraisal activities, including federal appraisal standards (Articles 1, 20 of the Law on Appraisal Activities).

If doubts arise about the validity of the assessment report and the reliability of the determination of the market value, the court, in accordance with Part 2, brings these circumstances up for discussion, even if the parties did not refer to them.

Taking into account that the result of the assessment is the value determined in the assessment report, the examination should be aimed at establishing the market value of the property and include checking the report for compliance with the requirements of the legislation on appraisal activities (Articles 12 and 13 of the Law on Appraisal Activities).

The court may put before the expert the question of establishing the market value, as well as whether the appraiser violated the requirements of federal valuation standards for the form and content of the report, for the description of the valuation object, for methods for calculating the market value of a particular valuation object, and other violations, that could influence the determination of the final value of the market value, including whether the factors influencing the value of the property were correctly determined, whether errors were made when performing mathematical operations, whether the information used by the appraiser is reliable, sufficient, and verifiable.

24. Legislation on taxes and fees involves the establishment of taxes that have an economic basis.

In this regard, the court, on the basis of the evidence available in the case, has the right to establish the market value in a different amount than indicated in the application to challenge the results of determining the cadastral value, including if there are objections from the applicant regarding the presented evidence about a different market value of the property (, paragraph 3 ).

If, at the time of the court decision, information on the cadastral value established as a result of the next state cadastral valuation was entered into the state real estate cadastre, the operative part of the decision must contain an indication of the period of validity of the cadastral value determined by the court.

Due to the fact that information about the date of filing an application for revision of the cadastral value is subject to inclusion in the state real estate cadastre and is used for taxation purposes and other purposes established by law, the operative part of the decision indicates the date of filing the corresponding application.

The Law on Valuation Activities for legal entities, state authorities and local governments establishes a mandatory pre-trial procedure for resolving disputes; in this regard, the date of filing an application for these persons is the date of application to the Commission.

The date of filing an application by an individual is considered the date of application to the court or the Commission, if this person applied to the Commission (paragraph five of Article 24.20 of the Law on Valuation Activities).

At the same time, in the operative part of the decision, the court indicates the need to eliminate the violations committed by reconsidering the previously submitted application (Article 258, paragraph 1 of part 3).

If an application to challenge the Commission's decision to revise the cadastral value or to determine the cadastral value in the amount of the market is granted, the operative part of the court decision must also contain an indication of the exclusion of the cadastral value established by the Commission from the information of the state real estate cadastre (Article 258, paragraph 1 of part 3, paragraph thirty ninth article 24.18, paragraphs one and two of article 24.20 of the Law on Valuation Activities).

According to paragraphs thirty-seven and thirty-eight of Article 24.18 of the Law on Valuation Activities, the decision to reject an application for revision of the cadastral value, as well as the inaction of the Commission, expressed in failure to consider the application for revision of the cadastral value within the period established by law, are for legal entities, public authorities and bodies local government is a condition for applying to the court with a request to revise the cadastral value and cannot be the subject of challenge when considering applications for revision of the cadastral value.

27. The court’s acceptance of the waiver of claims and the termination of proceedings in the case, as well as the refusal to satisfy the application for revision of the cadastral value, prevent the repeated application for revision of the cadastral value established on the same date in relation to the same property (clause 2 of part 1 , paragraph 4 of part 1, paragraph 2 of part 1).

28. The cadastral value established by the court is used to calculate the tax base for the tax period in which the application for revision of the cadastral value was submitted, and is applied until the entry into force in the manner prescribed by the normative legal act that approved the results of the next cadastral valuation, subject to the entry of information about new cadastral value to the state real estate cadastre.

For other purposes provided for by law, for example, to determine the rent and redemption price calculated from the cadastral value, the cadastral value established by the court is applied from January 1 of the calendar year in which the application for revision of the cadastral value is submitted, until the date of entry of the next results of determining the cadastral value to the state real estate cadastre (paragraphs three and five of Article 24.20 of the Law on Valuation Activities).

29. It should be borne in mind that a change in the cadastral value during the consideration of a case in a court of appeal or cassation is not a basis for termination of proceedings in the case, termination of proceedings on an appeal or cassation complaint (representation).

30. The state fee when filing applications to challenge the results of determining the cadastral value is paid in accordance with subparagraph 7 of paragraph 1 in relation to each property whose cadastral value is disputed.

31. Taking into account the fact that Chapter 23 does not establish any specifics for the distribution of legal costs in cases challenging the results of determining the cadastral value, the issue of legal costs incurred by the applicant, administrative plaintiff, interested party, administrative defendant is resolved in accordance with the rules , .

If the requirements to establish its market value in relation to a property are satisfied, legal costs are recovered from the body that approved the results of determining the cadastral value.

At the same time, in cases where the satisfaction of such requirements comes down to the implementation in court of the right of the applicant, the administrative plaintiff to establish the cadastral value in the amount of the market value, which is not disputed by the interested party involved in the case, the administrative defendant, either on the grounds of origin or in content (including the size of the market value), legal costs are borne by the applicant, the administrative plaintiff, since the court decision in the relevant case cannot be regarded as taken against an interested person, the administrative defendant, who does not have legal interests contrary to the applicant, the administrative plaintiff.

If the requirements for challenging the results of determining the cadastral value are satisfied on the basis of unreliable information about the object of assessment, including in connection with the correction of a cadastral error in the information, legal costs are recovered from the body that approved the results of the state cadastral assessment.

If the cadastral value was revised due to a technical error in the information about the object of assessment, legal costs are borne by the body that made such an error.

When satisfying demands to challenge a decision or actions (inaction) of the Commission, legal costs are recovered from the state body under which it was created, at the expense of the treasury of the Russian Federation (paragraph four of Article 24.18 of the Law on Valuation Activities).

32. In connection with the adoption of this resolution, paragraph 19 “On the application of legislation on state duties when considering cases in arbitration courts” is subject to application in the part that does not contradict paragraph 31 of this resolution of the Plenum of the Supreme Court of the Russian Federation.

Chairman
Supreme Court
Russian Federation
V.M.LEBEDEV

Secretary of the Plenum,
Supreme Court judge
Russian Federation
V.V.MOMOTOV

The ever-increasing number of cases related to challenging the results of establishing cadastral value necessitates the creation of a clear mechanism to ensure the protection of the rights and interests of participants in challenging procedures.

The clarity mentioned above presupposes the predictability and effectiveness of the actions taken in the context of clear and defined rules of the game in the field of challenging the cadastral value. At present, it is difficult to imagine that an appraiser participating in a meeting of a commission to consider disputes about the results of determining the cadastral value or a lawyer defending the interests of the title owner of a property did not take into account in such activities the practice of courts applying legislation on valuation activities when developing a position on a dispute. But difficulties in developing a position and choosing the optimal behavior for establishing the cadastral value of a real estate property in the amount of its market value are caused by not always certain and often laconic legislation regulating the above relations. How long did it take to understand the legal nature of the demands for revision of the cadastral value? From the beginning of the introduction of the rule on the primacy of market value and the emergence of the possibility of challenging it (2006) and until the formation of the position by the Presidium of the Supreme Arbitration Court of the Russian Federation in the well-known resolution No. 913/11 of June 28, 2011. More than five years have passed about the actionable nature of the requirements for revision of the cadastral value. How many unsuccessful attempts have there been to challenge the cadastral value during this time?

This state of affairs can be explained by the following reasons:

First, the rules of law themselves can be vague, allowing for several ways of interpretation, each of which can lead to opposite results. As an example, we can cite the case considered by the Moscow Arbitration Court on the application of Intertorg LLC to establish the cadastral value of a capital construction project in the amount of its market value (case No. A41-35176/14). The consideration of the case ended with the refusal to satisfy the stated requirements with reference to the fact that the current legislation does not provide for the possibility of establishing the cadastral value of capital construction projects in the amount of their market value. According to the Moscow Arbitration Court, this is only possible in relation to land plots. The appellate and cassation instances supported this decision, and only the Supreme Court of the Russian Federation overturned the judicial acts in the case and sent the case for a new trial.

Secondly, sometimes the same legal relationship is regulated by different rules of law that come into certain conflict with each other, which makes it impossible to give an unambiguous answer about which regulation of a given legal relationship is correct. Recall the discussion regarding the date at which market value should be established, and how many reports were rejected because the market value was determined on an inappropriate date? Even now, despite the statements of the Supreme Court of the Russian Federation about the perception of the legal positions previously formed by the Supreme Arbitration Court of the Russian Federation on the issues of challenging the cadastral value, in this part the points of view remain diametrically opposed.

Thirdly, there may be no legislative provision regulating the relations that arise in the process of revising the cadastral value. In this part, you can refer to the provisions of Part 2 of Article 66 of the Land Code of the Russian Federation, which establishes exceptions for establishing cadastral value as a result of state cadastral valuation. Literally it sounds like this - the state cadastral valuation is carried out in relation to land plots, with the exception of those for which the market value was previously established. But weren’t the land plots for which, as a result of the contest, it was possible to establish a market value subject to subsequent cadastral valuation, which necessitated the need to re-challenge? The history of challenging the results of determining the cadastral value in the city of Moscow is a clear confirmation of legislative gaps, which in capable hands turn into an effective instrument of fiscal policy.

The above, as well as numerous judicial practices in disputes about the results of determining cadastral value, indicate that such disputes cannot be resolved mechanistically, using the formula of a simple categorical syllogism, where the major premise is a rule of law, and the minor premise is a set of facts from specific life situations . Obviously, there is a need for uniformity of judicial practice and, in general, not so much for the purpose of legal certainty and stability in regulating relations in the field of valuation activities, but for the purpose of implementing the principle of equality before the law of both public authorities and title owners of real estate.

Realizing that the judicial interpretation of the rules of law, expressed in the governing decisions, creates conditions for the impossibility of subjectivity in the law enforcement activities of the courts, develops legal positions, establishes the limits of interpretation of regulations, reveals the content of the rule of law, the author, considering the need to prepare a commentary on the decision, proceeded from the fact that the analysis and generalization of the judiciary is based on an abstract interpretation of the law. Any, even the simplest text, due to the specifics of the Russian language, as well as the not always explainable connection between language and thinking, is potentially polysemantic, allowing for different interpretations. Because of this, individual provisions of the resolution may be perceived as superficial, ambiguous or contradictory, requiring clarification so that they are perceived without further questions and the need to search for additional material to understand their content. Moreover, everyone who gets acquainted with the text of the resolution will perceive its content depending on their intellectual capabilities, ideological attitudes and other personal characteristics. Consequently, if the problem of the unambiguity of the text of a resolution is associated with an adequate understanding of its meaning, then it should come down not so much to the assimilation of the content of verbal forms, but to the compatibility of the thinking systems of the authors of the resolution and those for whom it is intended.

In preparing the Commentary, we tried to focus on the applied issues of applying the legislation regulating the material and procedural aspects of challenging the results of determining the cadastral value, despite the fact that some provisions of the commented resolution give rise, in our opinion, to quite serious theoretical discussions. The goals that we would like to achieve can be formulated as follows:

Expand the content of specific provisions of the commented resolution, making them more understandable by specialists who do not have a legal education;

To highlight the ongoing controversial issues of application of valuation legislation from the perspective of already established judicial practice;

Formulate practical recommendations on the application of specific provisions of the Plenum resolution so that both appraisers and lawyers can avoid mistakes in choosing behavioral tactics and strategies when challenging the results of determining the cadastral value;

To provide answers to questions left unattended by the Plenum, without which, as it seems to us, it is impossible to clearly navigate the practice of applying legal norms in the field of revision of cadastral value;

To reveal the features of consideration of cases challenging the results of determining the cadastral value from the standpoint of, which since September 15, 2015. will become the main procedural act.

We are aware that it is impossible to exhaust the problems of challenging the cadastral value within the framework of explanations of the decision of the Plenum of the Supreme Court of the Russian Federation and our Commentary only partially solves this problem. At the same time, we express the hope that familiarization with it will help readers understand the rules of the game in the field of valuation activities.

For ease of reading the Commentary, the text is first reproduced with additional numbering for each paragraph of the resolution, under which the corresponding explanations will be given.

Commentary on point 1.

"1.1. The cadastral value of land plots and individual real estate objects is established for tax purposes and in other cases provided for by federal laws (clause 5 of Article 65 of the Land Code of the Russian Federation (hereinafter referred to as the RF Land Code), Article 375 of the Tax Code of the Russian Federation (hereinafter referred to as the RF Tax Code) ), Chapter III.1 of the Federal Law of July 29, 1998 No. 135-FZ “On Valuation Activities in the Russian Federation” (hereinafter referred to as the Law on Valuation Activities).

1.2. To determine the cadastral value of land plots and individual real estate objects (hereinafter referred to as real estate objects), on the basis of a decision of the executive body of state power of a constituent entity of the Russian Federation or in cases established by the legislation of a constituent entity of the Russian Federation, by decision of a local government body (hereinafter also referred to as the customer of the work), a state survey is carried out cadastral valuation, the results of which are entered into the state real estate cadastre (Law on Valuation Activities).

1.3. The cadastral value can also be determined in the cases established in Article 24.19 of the Law on Valuation Activities, or established by challenging the results of determining the cadastral value contained in the state real estate cadastre (Law on Valuation Activities).

1.4. In this case, challenging the results of determining the cadastral value means presenting any claim, the possible result of satisfying which is a change in the cadastral value of real estate, including challenging the decisions and actions (inaction) of the commission for resolving disputes about the results of determining the cadastral value (hereinafter referred to as the Commission).

1.5. Taking into account the fact that information on the cadastral value of real estate is information from a federal state information resource (state real estate cadastre), is publicly available and is used to determine tax and other payments, approved by a decision of the executive body of state power of a constituent entity of the Russian Federation or by a decision of a local government body, challenging information about the results of determining the cadastral value is carried out according to the rules of proceedings in cases arising from public legal relations; from September 15, 2015 according to the rules of the Code of Administrative Procedure of the Russian Federation (clause 11 of part 2 of article 7 of the Federal Law of July 24, 2007 No. 221-FZ “On the State Real Estate Cadastre” (hereinafter referred to as the Cadastre Law), the Law on Valuation Activities, chapter 25 of the Code of Administrative Proceedings of the Russian Federation (hereinafter referred to as the Code of Administrative Proceedings of the Russian Federation), Federal Law of March 8, 2015 No. 22-FZ “On the entry into force of the Code of Administrative Proceedings of the Russian Federation”).”

1.1. In the Introduction, we gave an example of an ambiguous interpretation of the law by courts, which led to the refusal to satisfy an application for revision of the cadastral value in relation to capital construction projects (the Intertorg LLC case). In order to avoid repeating mistakes made when protecting the interests of title owners of capital construction projects, we consider it necessary to pay attention to the following.

The question of the characteristics, the presence of which determines the possibility of including individual capital construction projects in the list of objects subject to taxation based on cadastral value, is not the subject of this work, although it deserves special attention and currently causes a lot of controversy. It is important for us to convey to the reader’s understanding that the current legislation of the Russian Federation (LLC of the Russian Federation, Article 24.18 of the Federal Law on Valuation Activities, Civil Code of the Russian Federation) and paragraph 1 of the commented resolution of the Plenum establishes a rule according to which the results of determining the cadastral value can be revised not only in relation to land plots, but buildings, structures, structures, i.e. other individual real estate objects.

If the courts, following the example of the Moscow Arbitration Court, have questions regarding the right to challenge the cadastral value of buildings, structures, etc., then you can safely refer to paragraph 1 of the commented resolution to justify and confirm the existence of such a right.

Cadastral value, as a basis for the formation of calculations in public relations (relations in which one of the participants is a state authority or local government body) can only be used in cases expressly provided for by the legislation of the Russian Federation. A mandatory condition preceding the establishment of the cadastral value is the adoption of a decision to conduct a state cadastral valuation (Article 24.12 of the Federal Law on Valuation Activities). This decision is made either by the executive body of state power of a constituent entity of the Russian Federation, or in cases established by the legislation of a constituent entity of the Russian Federation, by decision of a local government body. It is for this reason that the local government body is mentioned in the resolution of the Plenum.

In addition to the purposes of collecting land tax, the cadastral value can be used to determine the rent for a land plot located in state or municipal ownership (clause 5 of Article 65 of the Land Code of the Russian Federation (hereinafter referred to as the Land Code of the Russian Federation). The rent is established as directly upon concluding a lease agreement with the owner of a building, structure of a structure (clause 2.2 of Article 3 of the Federal Law of October 25, 2001 No. 137-FZ “On the entry into force of the Land Code of the Russian Federation”), and when re-registering the right of permanent (perpetual) use of land plots for the right to lease land plots (clause 2 of article 3

The cadastral value is also used to establish the purchase price in cases of sale of land plots that are in state or municipal ownership (clauses 1 and 2 of Article 2 of the Federal Law of October 25, 2001 No. 137-FZ “On the entry into force of the Land Code of the Russian Federation”).

Thus, if we outline the legislative scope of application of cadastral value as a basis for determining calculation characteristics in public (with the participation of state authorities and local governments) and private relations, then the following goals can be identified:

(a) taxation (land tax, real estate tax);

(b) rent;

(c) the purchase price for the redemption of property that is state or municipal property.

The cadastral value can be used as a basis for determining the amount of payments in relations that arose without the participation of public executive authorities (private legal relations), for example, between two commercial organizations, a commercial organization and an individual, or between individuals. And in these respects, it is permissible to challenge the value of the cadastral value, but only if the relevant agreement between these persons (for example, an agreement between a private owner and a tenant) provides for such a possibility. Attention is drawn to this in paragraph 6 of the commented resolution, a commentary on which will be contained below.

To understand the relationship between the concepts of cadastral and market value, the definition of the Constitutional Court of the Russian Federation dated October 23, 2014 is of interest. No. 2343-O “On the refusal to accept for consideration the complaint of citizen Maria Yuryevna Manakina about the violation of her constitutional rights by the provisions of Articles 24.19 and 24.20 of the Federal Law “On Valuation Activities in the Russian Federation”, in which the Constitutional Court of the Russian Federation, analyzing issues of cadastral valuation, noted that for tax purposes there is an advantage in using the cadastral value of a land plot equal to the market value over the cadastral value of land plots established based on the results of the state cadastral valuation of land. However, in this case, the Constitutional Court of the Russian Federation, referring to the provisions of the Federal Law “On Valuation Activities in the Russian Federation”. Russian Federation", indicated that the state cadastral valuation of land is not without economic grounds and the establishment of a cadastral value equal to the market value does not refute the assumed reliability of the previously established cadastral valuation results. At the same time, the presence in the legislation (Law on Valuation Activities) stipulates that in the event changes in the cadastral value by court decision, new information is applied from January 1 of the calendar year in which the corresponding application for revision of the cadastral value was submitted, but not earlier than the date of entry into the state cadastral cadastre of real estate, which was the subject of a challenge, as well as limiting the frequency of state cadastral valuation , no more than once in three years, and in cities of federal significance - no more than once in two years (part one of Article 24.12), in the opinion of the Constitutional Court of the Russian Federation, ensures the necessary balance of private and public interests and does not violate constitutional rights owners of real estate.

1.2. The second and third paragraphs of the commented resolution are devoted to listing the grounds on which the cadastral value can be established. They also provide a reference to the legislation of the Russian Federation providing for these grounds (or cases). The legislation of the Russian Federation provides that the cadastral value of real estate can be established:

(a) as a result of the state cadastral valuation (Chapter III.I of the Law on Valuation Activities;

(b) when carrying out state cadastral registration of previously unrecorded real estate objects, inclusion in the state real estate cadastre of information about a previously registered real estate object or entering relevant information into the state real estate cadastre when there is a change in the qualitative and (or) quantitative characteristics of real estate objects, entailing a change in them cadastral value (Law on Valuation Activities);

(c) as a result of consideration of disputes regarding the results of determining the cadastral value (Article 24.18 of the Federal Law on Valuation Activities).

The legislation of the Russian Federation does not provide for any other grounds or any other method of establishing the cadastral value.

The Ministry of Economic Development of the Russian Federation, considering the possibility of establishing the cadastral value in some other (application) procedure, pointed to this, considering that establishing the cadastral value of a land plot in the amount of its market value in a way other than extrajudicial and judicial contestation would be advisable only after securing at the legislative level, mechanisms aimed at preventing abuse on the part of interested parties in manipulating the procedures for revising the cadastral value, as well as analyzing the application of these mechanisms in practice. In addition, to establish a different procedure, it is necessary to establish additional administrative responsibility for appraisers and officials of SRO appraisers (Explanation of the Ministry of Economic Development of the Russian Federation dated May 27, 2011 “Explanation of the Corporate Governance Department of the Ministry of Economic Development of the Russian Federation on the determination of cadastral value”).

The Supreme Court of the Russian Federation in this paragraph also draws attention to the fact that challenging the results of determining the cadastral value is permissible only after these results have been entered into the state real estate cadastre.

And one more very important provision that follows from the content of paragraphs 2.3 of the commented resolution and which must be constantly remembered: the cadastral value established in any other way or on other grounds, other than those specified in this paragraph, cannot be considered properly established and cannot be enforced as a design characteristic.

Paragraph 3 of Article 5 of the previously valid version of the Federal Law of July 22, 2010 N 167-FZ “On Amendments to the Federal Law “On Valuation Activities in the Russian Federation” and certain legislative acts of the Russian Federation” established that until January 1, 2013 The powers of the customer of work to determine the cadastral value, established by Article 24.14 and part five of Article 24.16 of Federal Law N 135-FZ (as amended by Federal Law N 167-FZ), are exercised by the body performing the functions of state cadastral valuation.

Federal Law of December 28, 2010 N 431-FZ "On Amendments to the Federal Law "On Valuation Activities in the Russian Federation" and Article 5 of the Federal Law "On Amendments to the Federal Law "On Valuation Activities in the Russian Federation" and certain legislative acts acts of the Russian Federation" amendments were made to paragraph 3 of Article 5 of the previously current version of Federal Law N 167-FZ, according to which, until January 1, 2013, the powers to make a decision on conducting a state cadastral valuation and the powers of the customer of work to determine the cadastral value, with the exception of the powers established by 24.18 of Federal Law N 135-FZ, is also carried out by the body performing the functions of state cadastral valuation. Thus, the customer of the work to establish the cadastral value in the period before January 1, 2013 could be the executive authority of a constituent entity of the Russian Federation, in cases established. legislation of a constituent entity of the Russian Federation - a local government body, as well as a body performing the functions of state cadastral valuation (Rosreestr).

1.3. As much as the long-awaited appearance of clarifications regarding what should be understood by challenging the results of determining the cadastral value was so unexpected, it turned out to be so unexpected. If we turn to the text of this paragraph, then challenging the results of determining the cadastral value should be understood as “the presentation of any claim, the possible result of the satisfaction of which is a change in the cadastral value of real estate.”

In relation to the provisions of the Civil Procedure Code of the Russian Federation, as well as the Code of Administrative Proceedings of the Russian Federation, the word “any requirement” should be understood as a request addressed to the commission or to the court to establish the cadastral value of a real estate property in the amount of its market value (a) on the basis of the need to use reliable information about the property real estate, or (b) based on the availability of a report on the market value of the property being assessed.

Challenging the results of determining the cadastral value, within the meaning of the commented paragraph, is also a demand addressed to the court to declare illegal the action (inaction) of the commission for the consideration of disputes about the results of determining the cadastral value. The recognition of illegal actions should be understood as the recognition of the decision made by the commission as illegal, or the refusal to accept an application, and the recognition of inaction as illegal - cases when the commission does not consider the application for revision of the cadastral value accepted by it within the established time frame. For example, the commission refuses to accept an application, considering that no matter how much the market value differs from the cadastral value (more or less 30 percent), providing a positive expert opinion from a self-regulatory organization of appraisers is mandatory. Such actions of the commission will be legal only if the market value differs from the cadastral value by more than 30 percent. The commission’s refusal to accept an application when the difference between the market and cadastral value is less than 30 percent, on the grounds that it is mandatory to provide a positive expert opinion from the SRO, does not comply with the requirements of paragraph 20 of the Procedure and Article 24.18 of the Federal Law on Valuation Activities.

The deadlines that the commission must follow when accepting and considering an application for revision of the cadastral value are regulated by Order of the Ministry of Economic Development of Russia dated May 4, 2012 N 263
"On approval of the Procedure for the creation and work of a commission for the consideration of disputes about the results of determining the cadastral value and the invalidation of the order of the Ministry of Economic Development of Russia dated February 22, 2011 N 69 "On approval of the Standard requirements for the procedure for the creation and work of a commission for the consideration of disputes about the results of determining the cadastral value " (hereinafter referred to as the Order):

7 working days from the date of receipt of the application for revision of the cadastral value, but no later than five working days before the commission meeting - the period for the commission to accept the application for consideration and notify the applicant, the local government body on whose territory the property is located, the results of determining the cadastral value which is disputed, and the person who has the right to the property, on the date of consideration of the application;

One month from the date of receipt is the period for the commission to consider an application for revision of the cadastral value.

Features of calculating the above periods are as follows:

The date of receipt of the application for revision of the cadastral value is the date of its registration by the territorial body of Rosreestr (clause 16 of the Procedure);

The end of the monthly period will be the date corresponding to the date of registration of the application, the month following the one in which the application was submitted.

The history of challenging the results of determining the cadastral value is replete with an incredible variety of demands that were presented both by the owners (owners) of real estate objects and by persons interested in preserving the cadastral value as the basis for the formation of settlement relations. Let us recall the famous case regarding the claims made by Avers LLC, which was the subject of consideration by the Presidium of the Supreme Arbitration Court of the Russian Federation and on which the well-known resolution No. 913/11 of June 28, 2011 was made. The requirements that were stated by Avers LLC were formulated as follows:

(a) recognize as unreliable the results of the state cadastral assessment of the disputed land plot, carried out by the cadastral center on the order and under the control of the department;

(b) invalidate paragraph 7 of the inspection report of the cadastral center on determining the cadastral value of the compliance of the report on determining the cadastral value of land plots as part of the lands of settlements of the Kemerovo region with the Methodological instructions regarding the determination of the cadastral value of a disputed land plot and the specific indicator of its cadastral value;

(c) to be declared illegal, not in compliance with Article 66 of the Land Code of the Russian Federation, the Rules for conducting state cadastral valuation of land, approved by Decree of the Government of the Russian Federation dated 04/08/2000 N 316, Methodological Instructions and Administrative Regulations of the Federal Real Estate Cadastre Agency for the performance of the state function "Organization carrying out the state cadastral valuation of land", approved by order of the Ministry of Economic Development and Trade of the Russian Federation dated June 28, 2007 N 215, actions of the federal agency, management, expressed in the formation in the state real estate cadastre of unreliable information about the cadastral value of the disputed land plot and the specific indicator of its cadastral value ;

(d) invalidate the department’s decision to refuse to exclude from the state real estate cadastre information on the cadastral value of the disputed land plot and the specific indicator of its cadastral value, issued by letter dated 03.03.2010 N 07/12-1266;

(e) assign the responsibility to the department to exclude from the state real estate cadastre unreliable information about the cadastral value of the disputed land plot and the specific indicator of its cadastral value.

If we proceed from the legal position of the Supreme Court of the Russian Federation formed in paragraph 1 of the commented resolution that “challenging the results of determining the cadastral value means the presentation of any claim, the possible result of the satisfaction of which is a change in the cadastral value of real estate objects,” then the connection between the claims of Avers LLC becomes obvious » requirements with a possible change in the established cadastral value, and, therefore, each of these requirements has signs of challenge.

Meanwhile, the above-mentioned concept of “challenging the results of determining the cadastral value” must be considered in the context of other paragraphs of the commented resolution, in connection with which it becomes clear that the Supreme Court of the Russian Federation is not a supporter of the broadest possible understanding of challenging, since in relation to the subject of a judicial dispute, this concept should be considered only as requirements:

(a) on establishing its market value in relation to the property;

(b) on a change in the cadastral value due to the identification of unreliable information about the valuation object used in determining its cadastral value, including the correction of a technical and (or) cadastral error (hereinafter referred to as applications for revision of the cadastral value);

(c) to challenge the decision or action (inaction) of the commission.

Thus, not every requirement, the satisfaction of which may result in a change in the cadastral value, should be classified as challenging the results of determining the cadastral value.

This will be discussed in more detail in the comments to paragraph 2 of the resolution.

1.4. The last paragraph of paragraph 1 of the commented resolution draws a line under the discussion regarding the nature of the requirements to challenge the results of determining the cadastral value. If we turn again to the history of this issue, then the position of the Supreme Court of the Russian Federation regarding the nature of the above requirements is fundamentally at odds with the position expressed by the Supreme Arbitration Court of the Russian Federation in the well-known resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 913/11 of June 28, 2011. In this judicial act, the Supreme Arbitration Court of the Russian Federation, laying the legal foundations for challenging the cadastral value, proceeded from the fact that challenging the results of determining the cadastral value is not challenging the actions of a public authority. By making a request to establish the cadastral value of a property in the amount of its market value, the interested party does not challenge either the reliability of the cadastral value of the land plot or the legality of the normative act on its approval.

This approach has led to the position according to which demands to challenge the results of determining the cadastral value should be considered by the courts according to the rules of claim proceedings, with the burden on the plaintiff (applicant) to prove the actual market value of the property.

The Supreme Court of the Russian Federation, taking into account that:

(a) information on the cadastral value of real estate is information from the federal state information resource (state real estate cadastre);

(b) are publicly available and are used to determine tax and other payments;

(c) approved by a decision of the executive body of state power of a constituent entity of the Russian Federation or a decision of a local government body,

came to the conclusion that challenging information about the results of determining the cadastral value should be carried out according to the rules of proceedings in cases arising from public legal relations.

If we consider the difference in approaches to determining the nature of the requirements for the results of determining the cadastral value (claim or public law nature), then this difference at the present stage of legal regulation has no practical significance. Previously, it consisted in the fact that the burden of proof in cases arising from public law relations was placed on the public authority.

Currently, the provisions of Article 247 and the Code of Administrative Proceedings of the Russian Federation (hereinafter referred to as the Code of Administrative Procedure of the Russian Federation) impose on the administrative plaintiff (applicant) the obligation to prove both the unreliability of information about the property used in determining its cadastral value, and the need to establish in relation to the property its market value as of the date as of which its cadastral value was established.