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LETTER OF THE SUPREME ARBITRATION COURT OF UKRAINE

of September 22, 2000 No. 01-8/516

About practice of permission of separate categories of disputes (on material of judicial Ukraine of the Supreme Arbitration Court on review of decisions, resolutions)

The Supreme Arbitration Court of Ukraine according to the procedure of information sends the overview of practice of permission by judicial board of the Supreme Arbitration Court of Ukraine on review of decisions, resolutions of separate categories of disputes.

1. The dispute resolution with the assistance of tax authorities.

1.1. The address of collection of shortage on taxes on the amounts which the defaulter should receive from his debtors can be performed only in case of confirmation of such receivables in accordance with the established procedure.

The decision of Arbitration Court satisfies claims of open joint stock company (further - society) about recognition of collection orders about collection from society of receivables before the collective company (further - the company) such which are not subject to accomplishment. Such decision of Arbitration Court is motivated by failure of evidence of availability of receivables of the claimant before the company on which the defendant turns collection of shortage on taxes.

The decision is left by the resolution of the vice-chairman of Arbitration Court without change.

To the Supreme Arbitration Court of Ukraine the state tax authorities asked judgments on cases in the application to cancel because of discrepancy of the conclusions of court to the facts of the case.

Having checked case papers and the applicant's arguments, the judicial board of the Supreme Arbitration Court of Ukraine on review of decisions, resolutions established it.

According to the subitem "b" of Item 1 of article 1 of the Decree of the Cabinet of Ministers of Ukraine of January 21, 1993 N 8-93 "About collection of the taxes which are not brought in time and non-tax payments" the address of collection on the amounts which the defaulter should receive from his debtors is applied to the companies, organizations, the organizations as measures of indisputable collection of shortage.

According to the subitem "b" of Item 29 of the Instruction on features of application of the Decree of the Cabinet of Ministers of Ukraine of January 21, 1993 N 8-93 "About collection of the taxes which are not brought in time and non-tax payments", Ukraine approved by the order of the Ministry of Finance of November 2, 1993 N 84 (with further changes and amendments), the address of collection into accounts of debtors of the defaulter is performed by the state tax authorities collection orders (orders) on condition of reconciliation statement availability between the debtor and the defaulter or under the act of counter check which confirms debt.

Decisions of the state tax authorities on account of repayment of shortage of the company turn collection on receivables of society before this company. Based on these decisions collection orders are submitted to organization of bank.

By the defendant it is not submitted proofs of availability of receivables of society before the company though resolutions of Arbitration Court of the defendant obliged to provide such proofs and materials of check. In particular, the defendant does not provide the reconciliation statement between society and the company or the act of counter check which availability is the compulsory provision for the address of collection into accounts of debtors of the defaulter.

Available case papers confirm receivables of society not before the company, and before other legal entity.

Considering what at the time of pronouncement of the controversial solution of receivables of the claimant before the company did not exist, the judicial board of the Supreme Arbitration Court of Ukraine on review of decisions, resolutions left the statement of the state tax authorities without satisfaction, and judgments without change.

1.2. In permission of question of legitimacy of charge by tax authorities of tax on repatriation of the income of the nonresident it is necessary to consider instructions of international treaties on elimination of double taxation which consent to be bound is provided by the Verkhovna Rada of Ukraine.

The Arbitration Court satisfies claims of open joint stock company (further - society) on recognition invalid decisions of the state tax authorities on application of financial sanctions for violation of the law on the taxation and on recognition such which are not subject to accomplishment, collection orders (orders).

The decision of Arbitration Court is motivated that according to international treaties on elimination of double taxation which consent to be bound is provided by the Verkhovna Rada of Ukraine the income of the Austrian firm to which the claimant paid leasing payments is subject to the taxation in the Republic of Austria in this connection charge by the state tax authorities of tax on repatriation of the income of the nonresident is groundless. The decision regarding recognition such which are not subject to accomplishment collection orders (orders) is motivated by lack of the managerial act of collection of the corresponding tax amounts on profit and assignments on financing of road economy.

The decision on case is left by the resolution of the vice-chairman of Arbitration Court without change.

The defendant, without agreeing with the called court resolutions, in the statement for their check according to the procedure of supervision referred to such circumstances.

Besides, transfer by the claimant of leasing payment to the Austrian firm took place 05.02.98, and the Convention on elimination of double taxation signed between the Government of Ukraine and the Government of the Republic of Austria, Vedeno in action of 20.05.98.

The defendant considered also lawful application to society of article 6 of the Law of Ukraine "About sources of financing of road economy of Ukraine" according to which the motor transportation companies which transport on tariff payment deduct on roadwork 2 percent from the income from operation of road transport with inclusion of these contributions to rates for transportation. According to the defendant, the economic terms "rate" and "contract price" as the cost of services are identical in this connection society is such which provides services in road haulage in tariff payment, and by it on roadwork at the rate only 1,2 of percent should consider implementation of assignments groundless.

Having considered defendant's cases and having checked case papers, the judicial board of the Supreme Arbitration Court of Ukraine on review of decisions, resolutions, resolutions established it.

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