Yadrikhinsky, S. A. Bank Guarantee in Tax Relations: Comparative Legal Analysis and Practical Application

Abstract: The author of the present research article analyzes theoretical and practical aspects of using back guarantee in tax relations. Base on the comparative legal analysis of tax and civil legislation, the author describes peculiarities of bank guarantee for taxation purposes compared to its analogy in civil law and other means of securing an obligation of a taxpayer to pay a tax. The author studies the legal nature of guarantee liability and amount of money payable by the guarantor bank as well as the procedure for collection of that amount. The author defines the extent and limits of a guarantor’s liability and analyzes doctrinal sources and legal precedents regarding bank guarantee. The author also summarizes the experience of financial and legal science and civil law on the matter. Based on a number of features, bank guarantee for taxation purposes is quite different from its analogy in civil law. A guarantor and tax authority establish special non-tax obligation to pay the sum that is mandatory and payable based on the legal nature and public nature of such payment. The author also introduces a new term ‘request for paying the amount of money’ that acquires a characteristic value and becomes an independent legal phenomenon in tax relations. The scope of responsibility of a guarantor bank includes percents payable by a taxpayer for the period of delay or extension of payment or tax credit pursuant to Clause 4 of Article 64 of the Tax Code of the Russian Federation. The extent of a guarantor’s liability is limited to the sum the guarantee was granted for and not affected by the weakening of financial standing of a taxpayer.

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