of November 8, 2001 No. 21/60
Tax aspects of agreements on concession of requirements, translation of debt
The Supreme Economic Court of Ukraine on proceeding in open court with the assistance of representatives from Ros LLC. from GNI in Moskovsky district of Kiev considered the writ of appeal of the state tax authorities in Moskovsky district of Kiev on the resolution of 21.05.2001 - Arbitration Court of Kiev on case N21/60 on the claim of limited liability company of "Dews". to the state tax authorities in Moskovsky district of Kiev about recognition invalid decisions of GNI.
The claim is satisfied with the decision of Arbitration Court of Kiev of 22.01.2001 that requirements of the claimant are reasonable.
The first deputy chairman of Arbitration Court of Kiev exercised supervision on case and left the specified decision the resolution of 25.05.2001 without change for the same reasons.
The state tax authorities in Moskovsky district of Kiev consider that the Arbitration Court of Kiev in case of decision making of 22.01.2001 and the resolution of 21.05.2001 incorrectly applied regulations of substantive and procedural law therefore asks them to cancel and to stop proceeedings.
Besides, according to the complainant, the court violates requirements of the Art. of 4 AIC of Ukraine. These violations, according to the complainant, consist that the court in case of decision making referred to the letter of the NBU of 23.06.99 of N18-211/1872-5495 "About Transfer of Counter Claims of the Same Kind" which is not registered in the Ministry of Justice of Ukraine. The complainant considers also that court it is groundless referred in the decision and the resolution to Art. 217 of Civil Code of Ukraine as, according to the complainant, in this case the tax relations take place and according to the Art. of 2 Central Committees of Ukraine this Code is not applied to the tax relations.
Having checked case papers, the Supreme Economic Court of Ukraine
20.09.2000 the state tax authorities in Moskovsky district of Kiev draw up the statement "About results of check concerning observance of the tax legislation by limited liability company of "Dews". OKPU 25619290 from 01.08.99 for 01.09.2000".
By this act it is determined that 21.08.99 of Ros LLC. but GP "Academician" of Firm A LLC. The Ltd." signs the agreement according to which GP "Academician" delivers Ros LLC. at the price which is specified in delivery note, fuels and lubricants.
On the same day, i.e. 21.08.99 of Ros LLC. and Golden foreign firm. bails signed the agreement. Terms of this agreement provide that guarantor (Ros LLC.) undertakes to answer to the creditor (foreign firm) for accomplishment by the debtor (GP "Academician" of Firm A LLC. Ltd.", Ukraine) obligations under the external economic contract of 21.08.99 N140/99.
By the inspection statement it is determined also that Golden. (customer) and Ros LLC. (contractor) signed the general agreement about provision of services of scientific and technical nature of 20.01.2000, and 01.05.2000 specified persons signed the delivery and acceptance certificate of works on the amount 125500 dale. USA.
In view of reciprocal debt under the specified agreements, Golden. but Ros LLC. 05.05.2000 signed the agreement on discharge according to Art. 217 of Civil Code of Ukraine.
BEND, considering that in this case violation of the Presidential decree of Ukraine of 04.03.98 took place. "About measures for increase in responsibility for settlings with the budget and state trust funds", the agreement on discharge of 05.05.2000 does not recognize.
Taking into account the specified circumstance, GNI came to conclusion about need of charge of penalty fee according to Art. 4 of the Law of Ukraine "About modification and amendments in the Law of Ukraine "About procedure of payments in foreign currency" of 07.05.96.
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