THE LETTER OF THE SUPREME SPECIALIZED COURT OF UKRAINE ON CONSIDERATION OF CIVIL AND CRIMINAL CASES

of February 12, 2013 No. 223-286/0/4-13

About practice of application by courts of separate regulations of the substantive right concerning qualification of the tax avoidance made by office counterfeit

The Supreme Court of Ukraine in the decision (the resolution of December 19, 2011 No. 5-18ks 11) determined that in case the official of the subject of business activity for the purpose of tax avoidance purposely included in the tax credit in the declaration on the value added tax tax superimposed limited liability companies, authentically knowing that this society is not taxpayer on value added and it led to the actual not receipt in the budget of means in especially large sizes, and also in case of creation of declarations on the value added tax which are official documents, entered in them obviously inveracious data therefore the subject of business activity did not pay the value added tax, such actions cannot be qualified according to the p. 3 of Art. 212 and the p. 2 of Art. 366 of the Criminal code of Ukraine (UK of Ukraine) as tax avoidance, what led to the actual not receipt in the budget of means in especially large sizes and office counterfeit that entailed serious consequences.

Proving the conclusion, the Supreme Court of Ukraine noted the following.

In the p. 2 of Art. 366 of UK of Ukraine the material actus reus when which making the office counterfeit causes serious consequences is formulated. For incrimination person of drawing (causing) by its actions of certain effects needs availability of direct, direct, but not mediate, causal relationship between its actions and certain effects.

Therefore, in fault it is necessary for person who made office counterfeit, causings by its actions of serious consequences which definition is given in item 4 of the note to Art. 364 of UK of Ukraine for statement that such effects were in direct causal relationship with the actions specified in disposition p.1 to Art. 366 of UK of Ukraine.

The court of cassation in case of trial of case concerning the convict did not consider these provisions of the law owing to what made the wrong decision, having recognized that heavy effects which were shown in failure to pay taxes in especially large sizes, were directly caused as a result of counterfeit by the convict of official documents.

Based on specified the Supreme Court of Ukraine stated that the judgment of cassation instance concerning leaving without changes of sentence of Appeal Court in which actions of the convict are qualified according to the p. 3 of Art. 212 and the p. 2 of Art. 366 of UK of Ukraine is subject to cancellation, and case - to the direction on new cassation trial.

Of November 15, 2012 No. 5-15ks12 can study the complete text of the resolution of the Supreme Court of Ukraine in the Unified state register of judgments, on the official website of the Supreme Court of Ukraine or on the official website of the Supreme specialized court of Ukraine on consideration of civil and criminal cases in the Section "Court practice".

The conclusion (legal line item) of the Supreme Court of Ukraine concerning the specified question is such.

If person for the purpose of tax avoidance, charges (obligatory payments) makes office counterfeit which is one of methods of such evasion, then effect which led to the actual not receipt in the budget or the state trust funds of means in the corresponding sizes, are covered by disposition of specific part of Art. 212 of UK of Ukraine and cannot be regarded at the same time (doubly) as heavy effects in understanding of the p. 2 of Art. 366 of KK of Ukraine.

The provided conclusion (legal line item) of the Supreme Court of Ukraine is published in the Bulletin of the Supreme Court of Ukraine No. 4 (140), 2012. - Page 16.

According to Art. 400-25 of the Code of Criminal Procedure of Ukraine (1960), Art. 458 of the Code of Criminal Procedure of Ukraine the decision (conclusions) of the Supreme Court of Ukraine made (stated in its determinations) by results of consideration of the application about review of the judgment based on (bases) of unequal application by court of cassation instance of the same regulations of the penal statute of rather similar socially dangerous acts, is obligatory for all subjects of powers of authority which apply in the activities the specified provision of the law, and to all courts of Ukraine.

Considering stated we pay your attention to need of reduction of court practice in compliance with the judgment of the Supreme Court of Ukraine.

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