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of February 13, 2003 No. 04/113-02

About consideration of the writ of appeal of the State tax authorities on the resolution of Economic Court of Appeal of October 29, 2002 in the claim of auditing firm of small private enterprise

The Supreme Economic Court of Ukraine as a part of board of judges: the chairman, judges, without participation of agents of the parties who are properly informed on time and the place of consideration of the claim, having considered in proceeding in open court in Kiev the writ of appeal of the State tax authorities on the resolution of Economic Court of Appeal of October 29, 2002 in the claim of auditing firm of small private enterprise to the State tax authorities about recognition invalid the first tax claim, the second tax claim and recognition invalid BEND decisions.

The auditing firm small private enterprise declares on July 19, 2002 the invalidation action of the first tax claim, the second tax claim and recognition invalid BEND decisions on application of measures for repayment of tax debt of the taxpayer due to collection of its assets.

The Economic Court of Appeal as a part of the chairman and judges the resolution of October 29, 2002 left the checked decision of Economic court of area without changes for the same reasons, and the petition for appeal BEND - without satisfaction.

The state tax authorities consider that the tax debt of the claimant which resulted from bankruptcy of JSB Ukraine remains for the taxpayer - the claimant and is subject to budget contribution directly by the taxpayer.

The Supreme Economic Court of Ukraine, having heard the report of the judge, having checked completeness of the established facts of the case and correctness of their legal evaluation by economic court, notes the following.

Apparently from case papers it was also established by court, 26.06.2001 the claimant paid 180 hryvnias of the single tax for June, 2001 with the payment order N21.

The specified payment order was accepted in accomplishment of JSC APB Ukraina and money is charged off the settlement account of auditing firm that is confirmed by the corresponding mark of bank in the above-stated payment order, but the specified amount did not come to the budget.

With respect thereto the tax claims but the made disputed decision of the defendant on implementation of actions for collection of agreed sum of tax debt for the asset account of the taxpayer were sent to the claimant.

Subitem 16.5.1 of article 16 of the Law of Ukraine "About procedure for repayment of obligations of taxpayers to budgets and the state trust funds" provides that in the budget for fault of bank he bears for violation of terms of transfer of taxes responsibility for violation of procedure for timely and complete entering of tax into the budget, i.e. and another, except charge of penalty fee, the responsibility established by the Law.

At the same time the taxpayer, charges (obligatory payments) is exempted from liability for untimely or incomplete transfer of such payments in budgets or the state trust funds including the added penalty fee or penalties.

The conclusion follows from the provided instructions of this Law that discharge is provided in general and it is not exhausted penalty and penalty fee as tax responsibility is determined by the Law as payment of the tax liability or tax debt.

Besides, according to subitem 22.4 of article 22 of the Law of Ukraine "About payment systems and money transfer in Ukraine" when using the settlement document initiation of transfer is considered complete from the moment of acceptance from the payer of the settlement document in execution. Banks shall provide fixation of acceptance date of the settlement document in execution. According to subitem 1.24 of article 1 of the Law money transfer is movement of certain amount of money for the purpose of its transfer into the account of the receiver.

Implementation by the payer of any other additional actions, except provision of payment documents, is not provided by the current legislation.

Under such circumstances the reviewed decision and the resolution on case answer instructions of the current legislation, and arguments of the writ of appeal are recognized unconvincing as they do not confute the conclusions of court which are stated in the decision and in the appeal resolution, and after that the bases for their cancellation are not visible.

Taking into account stated, being guided by Articles 111-5, 111-7, 111-8, 111-9, 111-11 of the Economic Procedure Code of Ukraine, the Supreme Economic Court of Ukraine DECIDED:

To leave the resolution of Economic Court of Appeal of October 29, 2002 on case N04/113-02 without changes, and the writ of appeal of the State tax authorities - without satisfaction.

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