The clause 9.3 of the amended Law on Special Government Funds submitted in conjunction with the Law on the 2020 State Budget states that “A legal entity engaged telecommunications must pay an amount equal to 3% of their net profit into the Public Services Obligation Fund.” We consider this a violation of the PRIVATE PROPERTY of enterprises that are already paying the 25% income tax along with other taxes and fees in accordance with regulations. This clause contradicts the Constitution of Mongolia, is not reflected in the General Law on Taxation, and contradicts the principle stated in the amended Law on Special Government Funds which says “Additional obligations or expenses shall not be levied on a legal entity with existing obligations.”
Net profits are the legal private property and capital of a company and its shareholders recorded in the owner’s equity section of a financial report by subtracting expenses and taxes from the income that company earns through its activities. Clause 16.3 of the Constitution of Mongolia provides for the right to purchase, possess, and own moveable and immoveable property, and property rights are one of the fundamental human rights that must undeniably exist. The government must be responsible for guaranteeing and protecting private property and for stopping any and all attempts to illegally seize property.
Clause 3.1 of the revised version of the General Law of Mongolia on Taxation states that “only parliament has the power to create, levy, change, discount, or exempt taxes,” and also states in cases other than determining special regulations on free zones, or stabilization of taxation in accordance with an investment agreement with the government through a Stabilization Certificate in accordance Clause 3.1.7 of this law as well as the Law on Investment or Law on Crude Oil, when it comes to creating, changing, discounting, exempting, levying, or paying taxes, it is to be implemented only according to the laws on taxation.
In additional, Article 5 of the revised version of the General Law on Taxation divides taxes into the categories of taxes, fees, and payments, and the money to be paid into the Public Services Obligation Fund does not fit into any of those categories. Furthermore, the Public Services Obligation Fund is categorized as a fund whose predominant source of funding is to come from grants, aid, and donations, in accordance with the Law on Special Government Funds. Despite the legal foundation for the fund’s money being reflected as having to be accrued through voluntary donations and aid, we see the new regulation as mandating a legal entity to pay money from its private capital.
The law states that taxes must be collected only in accordance with laws and resolutions on taxes, and seizure of property can only take place through a court decision in cases of a crime committed, to fine for a violation, to uphold criminal or violation accountability, or to compensate for damages done unto others or for not fulfilling obligations of a contract.
Yet, according to the amended version of the Law on Special Government Funds, funds are being raised by taking money in an unconstitutional manner from the net profits of commercial organizations that have already paid their due taxes in accordance with relevant regulations.
In addition, year after year, cases of the fund’s money being used inappropriately have increased. For example, in recent years, around MNT 2 billion was spent on research, training, promotion, books, and manuals, in violation of the law. Relevant organizations have submitted complaints to the Primary Administrative Court of the Capital City regarding this.
A company’s net profit is the LEGAL PROPERTY of its owners, and because we view that ratification of any law that seeks to raise money for Special Government Funds by violating the property of citizens or enterprises is a direct violation of PRIVATE PROPERTY, we are hereby filing a complaint to the proper legal authority.
The Business Council of Mongolia
Mongolian National Chamber of Commerce and Industry