{"id":692,"date":"2013-12-26T14:47:15","date_gmt":"2013-12-26T12:47:15","guid":{"rendered":"https:\/\/kmp.ua\/?p=692"},"modified":"2021-02-22T18:35:08","modified_gmt":"2021-02-22T16:35:08","slug":"pravova-pryroda-sudovogo-zboru","status":"publish","type":"post","link":"https:\/\/kmp.ua\/en\/analytics\/exclusive\/pravova-pryroda-sudovogo-zboru\/","title":{"rendered":"Reimbursement of expenses as method of struggle against tax lawlessness: Part III"},"content":{"rendered":"

\u00a0The legal nature of\u00a0 the court fee and adequacy of its normative regulation<\/strong><\/p>\n

Read other parts<\/span><\/a><\/em><\/span><\/p>\n


\n<\/a>This article considers the issue of the legal nature of the court fee, its place in the tax system and mandatory fees, as well as compliance of the regulation of the court fee with its essence.\u00a0The issue in question is about the court fee, which is paid when applying to the court and some further steps in development of the court case.<\/p>\n

Rising expenses on the court fee<\/strong><\/p>\n

Due to adoption of the Law of Ukraine “On the Court Fee” the rates of the court fee have been significantly increased. Especially, this “affected” the participants of administrative proceedings, which litigate with the tax authorities1<\/sup>.<\/p>\n

In particular, the maximum amount to be paid in case of submission of a claim against the tax authorities increased by 5.7 times \u2013<\/span>\u00a0from UAH\u00a0406 to UAH\u00a02294 within the period from November 1, 2011 to October 23, 2013<\/strong>. And this amount will increase further, at least, due to increase of the minimum wage over the years which is connected with the calculation of the maximum amount of the court fee.<\/p>\n

Previously, when filing a claim two components of the amount, which by itself was smaller, were paid: the state duty constituted 2\/5 (the maximum amount of claims of material nature \u2013 UAH\u00a0170), and 3\/5 of the amount\u00a0\u2013\u00a0the cost of information and technical support of litigation (in commercial cases \u2013\u00a0UAH\u00a0236).
\nIt is quite possible that the court fee will increase further and significantly even this year and not because of the increase of the minimum wage. Thus, the Verkhovna Rada of Ukraine considers the draft law that envisages the double increase of the court fee compared with the existing amount.<\/p>\n

In particular, according to the draft law the size of the court fee by claims against the tax authorities shall be 2 percent of the amount of the proprietary claims, but not less than 1.5 size and not more than 4 minimum wages<\/strong>2<\/sup>. In the case of passing this draft law in the near future, the maximum amount of the court fee for applying to the court may reach UAH\u00a04588 this year.<\/p>\n

Therefore, expenses on the court fee for applying to the court constantly increase.<\/p>\n

Possible additional expenses due to vagueness of the order of the fee payment<\/strong><\/p>\n

At present the issue of the procedure of payment of the court fee and tailoring the appropriate payment document remains not regulated:<\/p>\n

Since July 7, 2012 the Order of the State Tax Inspection of Ukraine of April 22,1993, No.\u00a015 “On Approval of the Instruction on the Procedure of Calculation and Collection of the State Duty” (hereinafter \u2013 “Instruction No.15”), according to which payment of the court fee as a payment for filing complaints, appeal claims and claims of cassation, lost validity due to adoption of the Order of the Ministry of Finance of Ukraine No.\u00a0811 as of July 7, 2012 “On Approval of the Instruction on the Procedure of Calculation and Collection of the State Duty “(hereinafter referred to as the “Instruction No.\u00a0811”).<\/p>\n

In the new Instruction No. 811 nothing is mentioned about the court fee or fees for filing claims, appeal claims and claims of cassation. Therefore at the present time the only document which regulates the payment of is the Code of Administrative Proceedings of Ukraine and the Law of Ukraine “On the Court Fee”. However, the aforementioned regulations do not contain any requirements for documents on payment of court fee. In particular, >the requirement of affixing the marks of the bank on transfer of funds to the budget on the back of the payment order, which was previously set by Instruction No.\u00a015, is currently missing.<\/span><\/p>\n

However, in practice so far it is not clear, how the courts will respond to payment orders without respective marks of the bank. It is quite possible that proceeding from practice and by analogy, the courts will leave the claims (appeal claims and claims of cassation) without consideration.<\/p>\n

Receipt of such mark becomes fee-based. Thus, according to the verbal information, which was received in “Raiffeisen Bank Aval”, the bank may put such marks on the request of the clients ,but it is not free (charge for this “service” in “Raiffeisen Bank Aval” is UAH\u00a010).<\/p>\n

That is, even here the taxpayer must bear an additional expenses due to the lack of clear regulation of the issue of payment of the court fee and tailoring of the respective payment document so that the claim (appeal or claim of cassation) will not be left without consideration or as an option to try to prove, that such mark is not necessary.<\/p>\n

Background: from the state duty to the court fee<\/strong><\/p>\n

Before the Law of Ukraine “On the Court Fee” came into force (November 01, 2011), payment of the state duty and later the court fee, when applying to court, was obligatory but in the order and amounts, established by the laws for the state duty \u2013\u00a0some procedural codes of Ukraine still contain such transitional provisions.<\/p>\n

Thus, for instance, the Code of Administrative Proceedings (para.\u00a03 of part VII “The Final and Transitional Provisions”):<\/p>\n

“3. Before the law which regulates the procedure of payment of the court fee and its size becomes effective:<\/p>\n

    \n
  1. When applying to the administrative court, the court fee shall be paid in the order established by the legislation for the state duty.<\/li>\n
  2. The amount of the court fee is determined according to sub-para.\u00a0“b” of para.\u00a01 of Article 3 of the Decree of the Cabinet of Ministers of Ukraine “On the State Duty”3<\/sup>, except for the cases prescribed by sub-para.\u00a03 of this paragraph.<\/li>\n
  3. The size of the court fee with respect to proprietary claims for the recovery of monetary funds is one percent of the amount of such claims, but not more than UAH\u00a01700″.<\/li>\n<\/ol>\n

    That is, the court fee is the follower of the state duty, which was paid when applying to the court.<\/p>\n

    The legal nature of the court fee:<\/strong><\/p>\n