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EXPLANATIONS OF PRESIDIUM OF THE SUPREME ECONOMIC COURT OF UKRAINE

of August 21, 2001 No. 02-5/926

About procedure for institution of cases on bankruptcy on statements of bodies of the State Tax Service

For the purpose of ensuring identical and correct application by economic courts of articles 7-9 of the Law of Ukraine "About recovery of solvency of the debtor or recognition by his bankrupt" the presidium of the Supreme Economic Court of Ukraine considers necessary to explain procedure for the beginning of bankruptcy proceeding according to statements of bodies of the State Tax Service.

1. According to article 1 of the Law of Ukraine "About recovery of solvency of the debtor or recognition by his bankrupt" requirements about tax payments and charges (obligatory payments) can be satisfied by the rules established by this Law. On the called regulation bodies of the State Tax Service are creditors, and the taxpayer incapable to fulfill the obligations on tax payment and charges, - the debtor.

2. Case on bankruptcy is opened by economic court according to the statement of the creditor (including body of the State Tax Service) in the presence of the bases, the stipulated in Article 6 Laws of Ukraine "About recovery of solvency of the debtor or recognition by his bankrupt" i.e. if indisputable requirements of the creditor (creditors) to the debtor in total constitute at least than three hundred minimum sizes of the salary and these requirements were not met by the debtor within three months after established for their repayment of term if another is not provided by this Law.

3. In statements for institution of case on bankruptcy according to requirements of article 7 of the Law of Ukraine "About recovery of solvency of the debtor or recognition by his bankrupt" circumstances which confirm insolvency of the taxpayer taking into account features of the tax liabilities shall be stated. So, according to article 1 of this Law the requirements of creditors supported by settlement documents according to which according to the legislation write-off of funds from accounts of the debtor is performed belong to indisputable requirements of creditors, in particular.

Indisputable requirements of bodies of the State Tax Service of rather tax liabilities of taxpayers and procedure for their confirmation should be differentiated depending on time of emergence of shortage (tax debt).

According to Items 15 and 16 of the Section II and Item 15 of the Section V of the Instruction on clearing settlements in Ukraine in the national currency approved by the resolution of Board of the National Bank of Ukraine of March 29, 2001 N 135, payment requests of tax authorities and other bodies of collection return banks in these cases with obligatory specifying of the reasons of return. Therefore, such settlement documents with indication of the reasons of their return are confirmation of insolvency of the taxpayer according to requirements of parts one and the eighth article 7 of the Law of Ukraine "About recovery of solvency of the debtor or recognition by his bankrupt". Therefore in the presence of such settlement document about shortage default the taxpayer on the amount at least than three hundred minimum sizes of the salary within three months from day of the termination of fixed terms of payment of the corresponding obligatory payments the economic court has no legal basis for return of the statement of tax authority for institution of case on bankruptcy of the taxpayer.

3.2. Under the Law the legal mechanism of collection of the obligatory payments which are not paid in time therefore changed as determination of concept of the indisputable requirement of bodies of collection of such payments, and procedure for confirmation of this requirement is changed.

In case the tax liability arose after enforcement by article 6 and 8 of the Law (since October 1, 2001), then according to subitem 5.2.1 of article 5 of the Law such obligation is considered by the taxpayer approved in day of receipt of the tax message, except as specified, when the taxpayer appealed in administrative or legal process the decision of monitoring bodies.

According to subitem 5.4 of article 5 of the Law the agreed sum of the tax liability which is not paid by the taxpayer in the terms determined by this Article is recognized the amount of tax debt of the taxpayer.

Therefore, indisputable requirements of bodies of collection should be considered the agreed sum of the tax liability which is not paid by the taxpayer in the terms determined by article 5 of the Law.

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