LETTER OF THE STATE TAX SERVICE OF UKRAINE

of March 6, 2012 No. 4240/6/15-1415

About consultation provision

The State Tax Service of Ukraine considered the letter concerning application of separate regulations of the Tax code of Ukraine and reports.

Violation of the obligation is its failure to carry out or accomplishment with violation of the conditions determined by contents of the obligation (inadequate accomplishment) (Art. 610 of the Civil code of Ukraine (further - the Code)).

The debtor who did not start accomplishment of the obligation or did not execute it in time established by the agreement or the law is considered such which delayed the obligation (Art. 612 of the Code).

Along with it according to Art. 225 of the Economic code of Ukraine join in structure of losses which are subject to compensation by person which allowed economic offense: the cost of the lost, damaged or destroyed property determined according to requirements of the legislation; additional expenses (the penalties paid to other subjects, the cost of extra works, in addition spent materials and so forth) suffered by the party which suffered losses as a result of violation of the obligation by the second party, and uncollected profit (the lost benefit) to which the party which suffered losses had the right to calculate in case of proper accomplishment of the obligation by the second party.

The obligation of proof of the size of the loss caused by it violation of the obligation is assigned to the party which requires indemnification according to Art. 623 of the Code.

Thus, in the absence of at least one of elements of structure of tort, namely: delinquent behavior, losses, causal relationship between delinquent behavior of the debtor and losses, fault and the corresponding proofs to committed structure of offense responsibility does not come in this connection expenses on payment of these losses are such which are not connected with economic activity of the company and respectively are not subject to inclusion in structure of expenses of the company.

By article 624 of the Code it is determined that if for violation of the obligation the penalty is established, then it is subject to collection in complete size, irrespective of indemnification.

The obligation can be established by the agreement to pay damages only in that part in which they are not covered with penalty.

According to Art. 549 of the Code penalty (penalty, penalty fee) is the sum of money or other property which the debtor shall give to the creditor in case of violation by the debtor of the obligation.

Penalty is the penalty which is calculated percentage of the amount of outstanding or is inadequate the fulfilled obligation.

Penalty fee is the penalty which is calculated percentage of the amount of out of time fulfilled monetary commitment for each day of accomplishment delay.

According to subitem 139.1.11 of item 139.1 of Art. 139 of the Tax code of Ukraine (further - the Tax code) the expenses which are not connected with carrying out economic activity, in particular, of the amount of penalties and/or penalties or penalty fee according to the solution of agreement parties or according to the decision of the relevant state bodies, court which are subject to payment by the taxpayer are not included in the expenses.

According to Art. 625 of the Code the debtor who delayed accomplishment of monetary commitment upon the demand of the creditor shall pay amount of debt taking into account the established inflation index for all the time of delay, and also three annual interest rates from the overdue amount if other size of percent is not established by the agreement or the law.

The corresponding indexes are calculated Public service of statistics of Ukraine, since August, 1991, monthly and are published, in particular, in the Uryadovy Kuryer newspaper. These indicators reported by printing mass media with reference to Public service of statistics of Ukraine according to the Art. 19, 21 and 22 Laws of Ukraine "About information" are official.

Proceeding from the above, the expenses which are not connected with carrying out economic activity, in particular, paid amounts of penalties and/or penalties or penalty fee, losses from inflations for the entire period of delay of monetary commitment, amount of losses in the form of in addition paid interests on bank loans, 3 annual interest rates from the overdue amount (if other percent is not established by the agreement), which are paid by the payer as a result of failure to carry out of terms of the contract are not included in the expenses.

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