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LETTER OF THE SUPREME ARBITRATION COURT OF UKRAINE

of February 4, 2000 No. 01-8/47

About practice of permission of separate categories of disputes over materials of presidium of the Supreme Arbitration Court of Ukraine

The Supreme Arbitration Court of Ukraine according to the procedure of information sends the overview of practice of permission by presidium of the Supreme Arbitration Court of Ukraine of separate categories of disputes.

1. The dispute resolution with the assistance of tax authorities

1.1. The company has the right to establish independently priority and the directions of write-off of funds from own accounts, except the cases provided by the laws of Ukraine.

The joint stock bank (further - bank) appealed to Arbitration Court with the invalidation action of the decision of the state tax authorities on application of financial sanctions for violation of requirements of Article 5 of the Presidential decree of Ukraine of 16.03.95 N 227/95 "About measures for normalization of payment discipline in the national economy of Ukraine" (further - the Decree).

By the decision of Arbitration Court the claim it is refused with reference to the fact that settlement transaction is executed by commercial bank with violation of procedure, stipulated in Article 5 Decrees therefore in the income of the Government budget of Ukraine means in the amount of the amounts transferred with violation of established procedure are legally withdrawn.

The mentioned decision is left by the resolution of the chairman of Arbitration Court without change for the same reasons.

And the resolution of the chairman of Arbitration Court is repealed by the resolution of judicial board of the Supreme Arbitration Court of Ukraine on review of decisions and resolutions, the claim is satisfied, the decision of the state tax authorities is nullified in connection with the wrong application of regulations of the current legislation of Ukraine.

The Prosecutor General's Office of Ukraine on the resolution of the called judicial board brings protest in which it is specified that according to article 5 of the Decree proceeds from sales of goods (works, services), the means returned from deposits and also outstanding amounts which arrived from other companies including from guarantors or guarantors, the companies shall direct only to single own settlement (current) account.

Contrary to Ukazu bank, passing the settlement account sucrosewater, allocated funds from sale of its foreign currency for the transit account of bank branch for debt repayment on the credits.

Having considered arguments of protest and having checked the facts of the case, the presidium of the Supreme Arbitration Court of Ukraine determined that the plant signed with commercial bank the sales agreement of the foreign currency belonging to the plant on commission bases. The received means are used for carrying out transfer of mutual uniform requirements about what the plant and bank sign the relevant acts.

From contents of article 24 of the Law of Ukraine "About the companies in Ukraine" follows that the currency is property of the company which it uses on own discretion. This regulation provides the right of the company to independently establish priority and the directions of write-off of funds from accounts, except the cases provided by the laws of Ukraine.

By Article 217 of the Civil code of Ukraine it is determined that obligations stop transfer of counter claims of the same kind which term came or the term of which is not specified or determined by the zastrebovaniye moment.

Therefore, the settlement transaction performed by bank based on acts of carrying out transfer of mutual uniform requirements does not contradict Article 217 of the Civil code of Ukraine and does not fall under signs of article 5 of the Decree.

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