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.
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