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Illegality of tax notification-decision made under the results of tax audit, set within the criminal proceedings before the sentence in such criminal case comes into force, is proved by the court of cassation

21 September, 2012 Newsletters

The considerable part of the most wide-spread categories of tax disputes on the so-called “void” contracts is related to the tax notifications-decisions issued under the results of the tax audit within the criminal proceedings.

While criminal proceedings are opened in respect of the chain of supply, it is the honest taxpayer who becomes the subject to negative consequences. That is, such negative consequences become apparent in the form of VAT-credit reduction that results in VAT-refund reduction or extra VAT-liabilities. Cases of extra charge of the corporate profit tax liabilities are also frequent.

The decisions of the Supreme Administrative Court of Ukraine (hereinafter – “the SACU”), which confirm illegibility of the tax notifications-decisions under the results of the of the tax audit within the criminal proceedings until the judgment in such criminal case come into force, have recently appeared in the public sources. Thus, respective provisions are available in para. 86.9 of Art. 86 of the Tax Code of Ukraine (hereinafter – the “TC of Ukraine”).

In particular, the Unified State Register of Court Decisions contains the Ruling of the SACU of August 28, 2012 in the case No. К/9991/96613/11 [1] and the Ruling of SACU of September 5, 2012 in the case No. К/9991/42479/12 . In particular, in respect of application of the provisions of para. 86.9 of Art. 86 of the TC of Ukraine the last one states the following:

“... According to para. 86.9 of Art. 86 of the TC of Ukraine in case if the monetary liability is assessed by the state tax service under the results of the tax audit, appointed in accordance with the legislation on criminal proceedings or the legislation on operative-investigative activity, the tax notification-decision under the results of such tax audit shall not be issued until the respective court decision comes into force. Audit materials together with the findings of the state tax service body shall be forwarded to the law enforcement body that appointed the audit. Status of audit materials and findings of the state tax authority are determined by the legislation on criminal proceedings or the legislation on operative-investigative activity.

The Panel of Judges of Cassation agrees with conclusions of the court of trial and the court of appeal, which mentioned that according to the abovementioned rule of the TC of Ukraine, the tax authorities had no right to issue the tax notifications-decisions on the basis of the act of the tax audit of December 2, 2011 No. 899/23/30516731 until the date the respective court decision in the criminal proceedings comes into force …”.

The abovementioned decisions of the court of cassation are not only a statement of illegitimacy of tax notifications-decisions under the results of the tax audit carried out within the criminal proceedings until the date the respective court decision in such criminal case comes into force. In particular, these court decisions clarify peculiarities of application of para.86.9 of Art. 86 of the TC of Ukraine:

the court of cassationconfirmed application of para. 86.9 of the TC of Ukraine not only in case of criminal proceedings on tax evasion under Art. 212 of the Criminal Code of Ukraine. The SACU applies para. 86.9 of Art. 86 of the TC of Ukraine in the case of the criminal proceedings are other signs of crimes envisaged by the Criminal Code of Ukraine;
decisions of the court of cassation does not contain any restrictions on the list of persons against whom a criminal proceedings is opened. Hence, para. 86.9 of the TC of Ukraine is applied for criminal proceedings against the taxpayers/ their officials, as well as for criminal proceedings opened against their contractor/ contractor’s officials. By the way, the corresponding position is also reflected in the Letter of the State Tax Service of Ukraine dated 31.07.2012 # 20727/7/10-0217/2986.

The abovementioned decisions of the court of cassation may be used by the taxpayers to enhance their legal position in a similar category of court disputes. However, in case of the negative result in the courts, the said Rulings of the SACU can be used by the taxpayer as the basis for application to the Supreme Court of Ukraine for review of such negative court decisions.

The above commentary presents the general statement for information purposes only and as such may not be practically used in specific cases without professional advice.

Kind regards,

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