of April 9, 2012 No. 1017/11/13-12
To chairmen of Appeal administrative courts
Due to the origin in court practice of the questions connected using circulation periods in administrative court on the cases arising from the tax relations in the field of repayment of tax debt based on item 4 of part one of article 32 of the Law of Ukraine "About judicial system and the status of judges" the Supreme administrative court of Ukraine considers necessary to report the following.
On content of part one of Article - 183-3 Codes of administrative legal proceedings of Ukraine money recovery on tax debt can be performed according to the procedure of the appeal of body of the State Tax Service to administrative court with the corresponding representation.
Representation moves in Trial Court within twenty four hours from the moment of establishment of circumstances which predetermine appeal to the court, by the general rules of cognizance established by this Code, in writing and shall contain, in particular, the address bases with representation, circumstances which are confirmed by proofs, and requirements of the applicant.
Taking into account instructions of Item 95.2 of article 95 of the Tax Code of Ukraine according to which money recovery and sale of property of the taxpayer is performed not earlier than in 60 calendar days from the moment of the direction to such payer of the tax claim the tax authority shall attach to idea of money recovery on tax debt of the proof of the direction of the tax claim to the taxpayer which is necessary for the correct calculation of term in 60 days which shall pass from the date of the direction of the corresponding representation.
Item 59.1 of the Tax code of Ukraine provides that the procedure for the direction to the taxpayer of the tax claim is identical to procedure for the direction of the tax message decision.
According to Item 58.3 of the Tax code of Ukraine the tax message decision is considered sent (handed) to the legal entity if, in particular, it is transferred to the official of such legal entity on receipt or is directed by the letter with the message on delivery.
Thus, the given regulation of the Code provides two alternative methods of informing the payer on availability of the tax message decision, namely:
- direct delivery of such decision on receipt;
- the direction the letter with the message on delivery.
At the same time the legal design of this regulation does not determine priority at all or does not provide benefits in application by tax authority any of the specified methods. The use in the provided legislative instruction of the union "or" specifies equivalence of the specified methods and possibility of use any of them at the choice of tax authority.
Own direction provides the direction to the addressee (payer) of the letter with the message on delivery in understanding of this regulation. That is for the fact of the direction transfer of the corresponding type of post correspondence by tax authority on mail whereas further delivery (obtaining) by the addressee (payer) of such letter is separate action which does not influence reference mark of 60-day term according to the procedure of Item 95.2 of article 95 of the Tax Code of Ukraine is sufficient.
Such interpretation of Item 58.3 of article 53 of the Tax Code of Ukraine is validated also by the fact that this Code differentiates the concept "direction" and "obtaining" without their identification. So, in Item 56.18 of article 56 of the called Code emergence of the right of the payer to appeal of the decision of monitoring body on charge of monetary commitment is connected with receipt of such decision. According to Item 79.2 of article 79 of the same Code one of compulsory provisions of carrying out the State Tax Service by officials of body of documentary unscheduled inspection not eligible to travel abroad is, in particular, the direction to the taxpayer the registered mail with the message on delivery of the copy of the order on conducting documentary unscheduled inspection not eligible to travel abroad and the written message on start date and the venue of such check.
Besides, according to Item 42.2 of article 42 of the Tax Code of Ukraine documents are considered properly handed if they are sent to the address (to the location, the tax address) the taxpayer by the registered mail with the message on delivery.
Considering stated, the term "direction" of the tax claim in the context of regulation of Item 95.2 of article 95 of the Tax Code of Ukraine means departure of the tax claim to the taxpayer the registered mail with the message on delivery to such taxpayer.
Respectively in case of use of post method of informing the taxpayer on availability at it tax debt the right to introduction of idea of collection of tax debt arises at tax authority upon termination of 60 days from the date of departure to the taxpayer of the tax claim the registered mail with the message on delivery, irrespective of the date of the actual receipt of this tax claim by the taxpayer specified in the message on delivery next day.
We suggest to bring this letter to permission of judges of local and Appeal administrative courts for accounting when implementing justice.
Vice-chairman of court M. Tsurkan
Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info
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