One of the problems of Russian tax science that we have to face in practice is the lack ofclear legal mechanisms and forms of coordination of antinomic interests. The “balance ofinterests” construct is used as often as it is unintelligent in legal literature and judicial acts.Many questions remain unanswered: what exactly is the balance of interests and what areits criteria, how it is achieved, what tools and algorithms exist for this. The balancing itselfis almost always implicit. Both in the theory of tax law and in practice, it is something new(terra incognita). Due to a lack of understanding of the essence of the balance and how toachieve it, in the absence of a developed methodology for assessing and weighing interests,tax hard cases are resolved more intuitively, based on the law enforcement officer’sown ideas about what is due. This approach does not add legitimacy and openness tojudicial acts, and often causes misunderstandings in the professional law community. Theproblem of subjectivism creates a real threat of infringement of the legitimate interestsnot only of the parties to tax relations, but also of the rule of law in general. The subject ofthis study is the principle of proportionality, which is considered as a methodological basisfor achieving a balance of private and public interests in tax relations field. The aim ofthe work is to identify possibilities of the proportionality doctrine hidden from the Russianlaw enforcement, and thereby to add rationality to the issue of achieving (justifying) legalbalance in the resolution of tax conflicts. With the help of dogmatic, comparative legal andother methods developed by legal science, instrumental potential of principle of proportionalityis revealed. The article considers possibility of receiving achievements of foreignlegal thought in the domestic theory of tax law and adapting it to practice of tax relations.The article analyzes the proportionality test (the structure of criterion and the content) inforeign and Russian jurisdictions. Additional requirements for the court to substantiatethe conclusions of the decision are identified. With the help of a mathematical model, aproblem of the commensurability of weight of the value of interests, as well as issue of formalizationof the process of weighing interests, is investigated; the concept of the weightformula promoted by Robert Alexy is critically evaluated. The article analyzes applicationof principle of proportionality in foreign practice and in Russia. It is concluded principlementioned is the legal embodiment of the Pareto-optimum principle.
For citation: Yadrikhinskiy S.A. (2021) The Proportionality Principle as a Tool for Achieving Balance of Interests in Tax Relations: Theory and Law Enforcement in Russia and abroad. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 3, pp. 82–105 (in Russian) DOI: 10.17323/2072-8166.2021.3.82.105