On the distinct advantage of the authorized body in arbitration proceedings (on the example of Article 93.1, paragraph 2, of the Russian Tax Code)
The author doesn’t dispute that the tax agency is authorised to request documents (information) in the manner prescribed by Article 93.1 (paragraph 2) of the Russian Tax Code. However, he believes that the arbitrary use of this tax control tool in arbitration proceedings violates the principle of equality of arms and the adversarial principle, as well as the balance of private and public interests because it allows the authorized body, which acts as a party to the court, to use its official powers outside the tax control measures and bypassing the legal rules on demanding evidence. Such conduct of the tax agency is not permissible because it can disadvantage the parties to the proceeding and also contradicts the general meaning of Article 19 (Part 1), Article 46 (Part 1), Article 123 (Part 3) of the Russian Constitution, as well as Articles 8, 9, 65, 66 of the Arbitration Procedural Code of the Russian Federation. Thus, the author recommends that commercial courts refuse to attach to the case file documents received in an above-mentioned way under Article 68 of the Arbitration Procedural Code. This will encourage the authorized body to use a legal mechanism for demanding evidence according to Article 66 (paragraph 4) of the Arbitration Procedural Code.