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LETTER OF THE STATE TAX SERVICE OF UKRAINE

of September 13, 2012 No. 1868/0/61-12/15-3115

The State Tax Service of Ukraine considered the letter concerning provision of explanation of rather tax accounting in case of reduction of the tax liabilities for the value added tax in the presence of the amount of negative value or the amount of budget compensation which arose in the previous accounting (tax) periods, and within competence reports.

According to article 200 of the Tax Code of Ukraine of 02.12.2010 the tax amount which is subject to payment (transfer) in the Government budget of Ukraine or to budget compensation is determined No. 2755-VI (further - the Code) as difference between the amount of the tax liability of the accounting (tax) period and the amount of the tax credit of such accounting (tax) period. In case of positive value of the amount calculated according to Item 200.1 of article 200 of the Code, such amount is subject to payment (transfer) in the budget in the terms established by the Section V of the Code (Item 200.2 of article 200 of the Code).

In case of negative value of the amount calculated according to Item 200.1 of article 200 of the Code, such amount is considered in reduction of the amount of tax debt on tax which arose for the previous accounting (tax) periods (including spread or delayed according to the Code), and in case of absence tax dolgazachislyatsya in structure of the tax credit of the next accounting (tax) period (Item 200.3 of article 200 of the Code).

According to Item 200.4 of article 200 of the Code if in the following tax period the amount calculated according to Item 200.1 of article 200 of the Code has negative value, then:

a) part of such negative value which equals to the tax amount which is actually paid by the receiver of goods/services in previous and reporting tax periods to suppliers of such goods / services or in the Government budget of Ukraine, and in case of obtaining from the nonresident of services on customs area of Ukraine - the amount of the tax liability included in the tax declaration for previous period for the services by the receiver of services received from the nonresident is subject to budget compensation;

b) the remaining balance of negative value of the previous tax periods after budget compensation is included the amounts which belong to the tax credit of the following tax period.

The taxpayer can make independently the decision on transfer in full of the amount of budget compensation or its part of reduction of the tax liabilities ought to it on this tax which arose during the next accounting (tax) periods, in the presence of conditions, stipulated in Item 200.4 articles 200 of the Code.

The specified decision is displayed by the taxpayer in the tax declaration which he submits by results of the accounting (tax) period in which there is right to filing of application about receipt of budget compensation according to regulations of this Article. In case of adoption of such decision the specified amount is not considered when calculating the amounts of budget compensation of the next accounting (tax) periods.

The received tax statements of the payer are subject to check in the terms determined by the Code (Item 200.10 of article 200 of the Code).

If by results of check the body of the State Tax Service finds discrepancy of the amount of budget compensation to the amount declared in the tax declaration, then such body in case of understating of the amount of budget compensation declared by the taxpayer concerning the amount determined by body of the State Tax Service by results of checks sends to the taxpayer the tax message in which the amount of such understating and the basis for its deduction are specified.

In this case it is considered that the taxpayer voluntarily refuses receipt of such amount of understating as budget compensation and considers it according to Item 200.6 of article 200.6 of the Code in reduction of the tax liabilities on this tax in the following tax periods (Item 200.14 of article 200 of the Code).

Besides, Item 200.5 of article 200 of the Code determines the list of persons and condition in case of which such persons have no right to budget compensation.

At the same time the Code does not provide possibilities of deprivation of the right of such persons to forming of the tax credit based on lack at them of the right to budget compensation.

Thus, behind the companies the right to use the tax credit which is saved up by them in the future, in particular on account of repayment of payments on the VAT of the following tax periods or on account of the tax credit of the following tax period remains.

Taxpayers who had no right to budget compensation in connection with the restrictions set by the Code have the right to display in the tax declaration on the VAT remaining balance of negative value of tax before its complete repayment or by charge of the tax liabilities, or by receipt of the right to budget compensation.

At the same time concerning legitimacy of forming of the tax credit by taxpayers it should be noted the following.

According to Article 257 of the Civil code of Ukraine general limitation period is established lasting three years (1095 days).

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