LETTER OF THE STATE TAX SERVICE OF UKRAINE

of June 13, 2012 No. 16393/7/10-1417/3381

Concerning cancellation of registration of payers of the VAT

The analysis of judgments on cases on claims of taxpayers to the bodies of the State Tax Service connected with cancellation of registration as the taxpayer for value added demonstrates that court practice on this matter is contradictory and unsteady. Mostly it is caused by ambiguous application of the legislation which regulates procedure for cancellation of registration of payers of the VAT and their recovery in the register.

According to subitem 5.6.1 of item 5.6 of the Provision No. 1394 the basis for entering into the Register of record about cancellation of cancellation of registration which happened at the initiative of tax authority is the judgment which took legal effect, or the decision of tax authority on cancellation of cancellation of registration and cancellation of the decision on cancellation of registration of the payer of the VAT. Decisions with copies of the relevant documents go to the central body of the State Tax Service for consideration and entering of corresponding changes into the Register.

The decision of tax authority on cancellation of cancellation of registration and cancellation of the decision on cancellation of registration of the payer of the VAT is stated with the description of situation, the reference to the Code, specifying of motives and reasons for adoption of such decision, drawn up on the form and signed by the head of such body or person fulfilling its duties.

Therefore, the procedure for introduction of record about cancellation of cancellation of registration of the payer of the VAT is two-level.

So, the subject of managing which does not agree with the decision of OGNS on cancellation of registration of the payer of the VAT has the right to the appeal to administrative court or in body of the State Tax Service of higher level with the corresponding claim.

Only after the introduction of the judgment such decisions with copies of the relevant documents go to legal force or adoptions by tax authority of the decision on cancellation of earlier made decision on cancellation of registration of the payer of the VAT to the central body of the State Tax Service for consideration and entering of corresponding changes into the Register.

Thus, necessary prerequisite for entering of GNS of Ukraine into the Register of record about cancellation of cancellation of registration is receipt of properly verified copy of the judgment which cancels the decision of the relevant tax authority on cancellation of registration of the payer of the VAT or the decision of tax authority on cancellation of cancellation of registration of the payer of the VAT.

Proceeding from instructions of the Code of administrative legal proceedings of Ukraine, in particular, of possibility of protection only of the violated rights, freedoms and interests, proper method of protection of the violated right at the first stage is submission of the claim to tax authority which made the relevant decision with the requirement about its cancellation.

Contrary to stated some taxpayers, referring to that circumstance that the exception of the company of the Register of payers of the VAT turned out to be legal consequence of adoption of the appealed decision on cancellation of registration of the VAT, consider that protection of the violated rights will be incomplete in case of only satisfaction of claim about cancellation of the decision on cancellation of registration of the payer of the VAT. Proceeding from what require in addition to protect the violated right by the obligation of tax authority to make actions concerning entering into the Register of payers of the VAT of record about cancellation of cancellation of registration of the taxpayer for value added.

Such line item is wrong in view of the fact that the obligation on making of actions concerning entering into the Register of record about cancellation of cancellation of registration into GNS of Ukraine arises only after the introduction in action of the relevant decision of court and its obtaining with the relevant documents of the last. Up to this point the claim about the obligation to make record about cancellation of cancellation of registration of the payer of the VAT is premature and such which is not subject to satisfaction as for the period of trial of case there are no bases to consider that the relevant decision will not be executed by tax authority voluntarily.

It is also necessary to pay attention to groundlessness of claims about the obligation to recover in the Register action of certificates of payers of the VAT from the moment of the beginning of their action. So, subitem 5.6. 2, 5.6.3 Provisions No. 1394 are provided that in case of cancellation of the decision on registration cancellation if another is not determined by the judgment, the tax authority grants to the payer of the VAT the new Certificate (at new number) instead of the old Certificate based on the registration statement with the mark "Re-registration" and the decision on registration cancellation cancellation. At the same time registration date the payer of the VAT does not change, and effective date of the new Certificate and date of cancellation of the old Certificate is date of entering of the corresponding record into the Register.

If for date of cancellation of the decision on registration cancellation person is registered by the payer of the VAT repeatedly, the tax authority grants to the payer of the VAT the new Certificate (at new number) instead of the old Certificate in the same procedure, as well as in case of re-registration. At the same time date of repeated registration by the payer of the VAT changes for date of the previous registration by the payer of the VAT, and date of cancellation of the last Certificate of the previous registration changes on effective date of the first Certificate of repeated registration by the payer of the VAT.

At the same time it is necessary to consider that it is possible to appeal only the decision on cancellation of registration of the payer of the VAT, but not the document which became the basis for its acceptance. For example, the act (reference) of division of the taxation of legal entities or physical persons of giving/not giving by the payer of the VAT to tax authority of the declaration on the value added tax within 12 consecutive tax months and the register (list) of tax declarations (tax calculations) of person in 12 consecutive tax months which testify to lack of delivery/purchase of goods, performed for the purpose of forming of the tax liability or the tax credit in such declarations (tax calculations) within 12 consecutive tax months.

At the same time 30.05.2012 at meeting of round table concerning identical application of regulations of the Tax code of Ukraine with participation of judges of the Supreme administrative court of Ukraine, Appeal and district administrative courts by the assistant department head of ensuring work of the fourth trial chamber of the Supreme administrative court of Ukraine Polyanichko A. O. the opinion concerning the fact that consideration subject according to the procedure of administrative legal proceedings are not any acts of the subject of powers of authority is expressed, and it is exclusive those which generate the rights and obligations. Also the representative of VASU noted that by consideration of question of recognition of the decision of tax authority on cancellation of registration of the VAT the satisfaction of requirements regarding the obligation of GNS of Ukraine to recover the payer in the corresponding register is invalid premature.

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