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RECOMMENDATIONS OF THE SUPREME ECONOMIC COURT OF UKRAINE

of December 9, 2004 No. 04-5/3358

About some questions of use of the separate provisions of the law of Ukraine "About the value added tax"

1. Application of instructions of the Law N168/97 concerning compensation of the value added tax and collection of the percent added on the amount of the budget debt on the value added tax from the Government budget of Ukraine.

1.1. Economic courts need to consider that the basis of claims in cases on disputes on collection of the budget debt on the value added tax, on collection of the percent added on the amount of the budget debt is violation of the right of the taxpayer to obtaining provided by the Law N168/97 from the Government budget of Ukraine of excessively paid value added tax at the scheduled time.

Therefore, in view of that the basis for provision of the claim for cases of this category is violation provided by the Law N168/97, the rights of the taxpayer to obtaining from the Government budget of Ukraine of excessively paid value added tax at the scheduled time, the taxpayer in case of collection of the budget debt needs to formulate claims as requirements about collection of the budget debt on the value added tax, and in case of collection of the percent added on the amount of the budget debt as requirements about collection of the percent added on the amount of the budget debt.

Claims about obligations of tax authority to provide to body of the State Treasury of Ukraine the conclusion about compensation of tax amounts on value added or about compensation of the percent added on the amount of the budget debt do not correspond to the substantive methods of protection of the violated right determined by the Law N168/97 and therefore their satisfaction it shall be refused.

According to Item 2 of Article 50 of the Budget code of Ukraine the State Treasury of Ukraine keeps financial accounting of all receipts which belong to the Government budget of Ukraine, and on representation of bodies of collection performs return of means which were mistakenly or are excessively enlisted in the budget.

"About the State Treasury of Ukraine" of 27.04.95 N335/95 for management of means of the Government budget of Ukraine was created by the presidential decree of Ukraine the State Treasury of Ukraine. Item 1 of article 2 of the specified Decree provides that one of the main objectives of the State Treasury of Ukraine is the organization of accomplishment of the Government budget of Ukraine and control of it.

According to Items 1, 4 Provisions on the State Treasury, the Cabinet of Ministers of Ukraine approved by the resolution of 31.07.95 N 590, the State Treasury as system of bodies of the state executive authority, exercises control of available means of the government budget, means of state non-budgetary funds and extrabudgetary funds of organizations and organizations which contain at the expense of means of the government budget.

In the subitem 1 of Item 7 of this Provision it is determined that accomplishment of the corresponding indicators of the government budget and control of receipt, movement and use of state non-budgetary funds, extrabudgetary funds in part which is determined by Head department of the State Treasury of Ukraine are performed by departments of the State Treasury of Ukraine in areas, the cities, areas in the cities and they based on the subitem 6 of Item 7 of this Provision perform on representation of the state tax authorities return at the expense of the government budget of excessively paid or collected taxes, charges and obligatory payments.

At the same time according to Item 6 of the specified Provision in case Management of the State Treasury in the Autonomous Republic of Crimea, areas, the cities of Kiev and Sevastopol, the cities with district division within the corresponding territory, and also the Head department of the State Treasury of Ukraine is directly exercised by transactions concerning accomplishment of the government budget, they perform the same functions, as departments of the State Treasury of Ukraine in areas, the cities, areas in the cities.

Item 4 of the Procedure for compensation of the value added tax approved by the order of State Tax Administration of Ukraine and the State Treasury of Ukraine of 02.07.97 N209/72, according to which territorial authorities of the State Treasury of Ukraine is corresponded to the specified regulation perform budget compensation of the value added tax to the payer according to the conclusions of tax authorities.

Bodies of the State Treasury of Ukraine transfer funds the payment orders from the income account of the government budget into the account specified in the conclusion of tax authority or the judgment.

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