of July 31, 2012 No. 20727/7/10-0217/2986
The State Tax Service of Ukraine (further - GNS of Ukraine) by results of carrying out 30.05.2012 in the Supreme administrative court of Ukraine (further - VASU) round table concerning identical application of regulations of the Tax code of Ukraine (further - round table) reports the following.
According to the paragraph to the second Art. 19 of the Constitution of Ukraine public authorities and local government bodies, their officials shall act only on the basis, within powers and in method which are provided by the Constitution and the laws of Ukraine.
By article 66 Code of Criminal Procedure of Ukraine it is determined that person who performs inquiry, the investigator, the prosecutor and court, on cases which are in their production has the right to cause according to the procedure, established by this Code, any persons as witnesses and as the victims for interrogation or as experts for representation of conclusions; demand from the companies, organizations, the organization, officials and citizens of presentation of objects and documents who can establish necessary actual data in case; require carrying out audit, demand from banks information which contains bank secrecy, concerning legal entities and physical persons according to the procedure and amount, established by the Law of Ukraine "About banks and banking activity".
The resolution of the investigator according to subitem 78.1.11 of item 78.1 of Art. 78 of the Tax code of Ukraine (further - the Tax Code of Ukraine) is the basis for carrying out by body of GNS of unscheduled documentary inspection of the taxpayer.
Considering specified, the legislation of Ukraine provides the investigator's right within the Code of Criminal Procedure of Ukraine, by the relevant resolution, to appoint conducting checks of subjects of managing. Such resolutions, from line item of judges 4 chambers of VASU lit at meeting of round table are mandatory bodies of GNS of Ukraine.
2. Concerning the right of bodies of GNS to accept tax messages decisions by results of performed, appointed according to the criminal procedure law or the law on operational search activities
One of the bases for carrying out by body of GNS of documentary unscheduled inspections, according to subitem 78.1.11 of item 78.1 of Art. 78 of the Tax Code of Ukraine receipt of the court order by body of GNS (determination of court) about purpose of check or the resolution of body of inquiry, the investigator, the prosecutor who is taken out by them according to the law on criminal cases which are in their production is.
By results of such checks, according to item 86.9 of Art. 86 of the Tax Code of Ukraine, the tax message decision is not accepted about day of the introduction in legal force of the relevant decision of court. Check materials together with conclusions of body of GNS are transferred to law enforcement agency which appointed check. The status of such materials of check and conclusions of body of GNS is determined by the criminal procedure law or the law on operational search activities.
By subitem 58.4 of Article 58 of the Tax Code of Ukraine it is determined that in case when the court by results of consideration of criminal case about crimes which subject are taxes, charges pronounces conviction which took legal effect, or the decision on closing of criminal case on not rehabilitating bases is passed, the monitoring body shall determine to the taxpayer the corresponding tax liabilities, penal (financial) sanctions.
At the same time creation and departure to the taxpayer of tax soobshcheniyaresheniye on the tax liabilities of the taxpayer on taxes and fees, failure to pay the tax liabilities on which is established by the judgment, is forbidden to the introduction in legal force of the relevant decision of court or pronouncement of the resolution on closing of criminal case on not rehabilitating bases.
In case of practical application of the specified rules of law there is question whether in all cases the body of GNS accepts the tax message decision by results of the carried-out documentary unscheduled inspections based on the resolution of body of inquiry, the investigator, the prosecutor or is exclusive based on resolutions on violation of the criminal cases connected with tax payment, charges.
Considering that the disposition of subitem 78.1.11 of item 78.1 of Art. 78 and item 86.9 of Art. 86 of the Tax Code of Ukraine does not perform differentiation of the specified resolutions on objective and subjective structure, at bodies of GNS are absent, about day of the introduction in legal force of the relevant decision of court, the legislative bases for pronouncement of tax messages decisions by results of such checks.
In case of adoption of the tax message decision by results of performed, appointed based on the resolution of body of inquiry, the investigator, the prosecutor before pronouncement of the relevant decision of court within the Code of Criminal Procedure of Ukraine, the last according to line item of VASU will be cancelled.
Concerning the evidence obtained when conducting check (within the Code of Criminal Procedure of Ukraine), including acts of checks, they will be estimated by consideration of criminal case in court of relevant jurisdiction.
Together with it it is necessary to consider that provisions of Art. 78 of the Tax Code of Ukraine contain also other bases for carrying out by bodies of GNS of documentary unscheduled inspections.
In particular, by subitem 78.1.1 of item 78.1 of Art. 78 of the Tax Code of Ukraine it is determined that documentary unscheduled inspection can be performed by results of checks of other taxpayers or on receipt of tax information the facts testimonial of possible violations by the taxpayer of tax, foreign and other legislation, control of whose observance is imposed on bodies of the State Tax Service, are elicited if the taxpayer does not provide explanations and their documentary confirmations on the obligatory written request of body of the State Tax Service within 10 working days from the date of receipt of request.
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