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LETTER OF THE SUPREME ADMINISTRATIVE COURT OF UKRAINE

of April 29, 2013 No. 642/12/13-13

To chairmen of Appeal administrative courts

Due to the origin in court practice of the questions connected using administrative detention of means according to subitem 20.1.17 of Item 20.1 of article 20 of the Tax Code of Ukraine 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.

General procedure and the bases of application of administrative detention by bodies of the State Tax Service are determined by article 94 of the Tax Code of Ukraine.

Determination of administrative detention as exclusive method of ensuring accomplishment of obligations of the taxpayer, provided in Item 94.1 of article 94 of the Tax Code of Ukraine, on the content equally covers both arrest of means, and arrest of other property.

Therefore, regulations of article 94 of the Tax Code of Ukraine regulate application of any administrative detention irrespective of subject of such arrest.

At the same time the current legislation consistently differentiates procedure for imposing of administrative detention on the property of the taxpayer different from means, and arrest of means of the taxpayer.

Administrative detention of property of the taxpayer according to Item 94.10 of article 94 of the Tax Code of Ukraine is imposed according to the decision of the head of body of the State Tax Service which justification within 96 hours shall be checked by court.

But arrest of means on the account of the taxpayer according to the paragraph the second subitem 94.6.2 of Item 94.6 of Article 94 is performed only based on the judgment by the appeal of body of the State Tax Service to court. The tax authority in that case does not make any decision.

The given regulations are corresponded to the instruction of Item 94.4 of article 94 of the Tax Code of Ukraine according to which it can be seized by body of the State Tax Service any property of the taxpayer, except property on which collection according to the law, and means on the account of the taxpayer cannot be turned. Follows from content of this regulation that competence concerning seizure of property belongs to body of the State Tax Service, but such competence does not extend to arrest of means of the taxpayer which is imposed according to the decision only of court based on the appeal of tax authority.

Also the procedure for removal of the arrest imposed property of the taxpayer, and arrest of means on accounts of the taxpayer differs.

Administrative detention of property of the taxpayer stops: 1) or due to the lack within 96 hours of the judgment about confirmation of justification of such arrest (subitem 94.19.1 of Item 94.19 of article 94 of the Tax Code of Ukraine); 2) or based on the decision of body of the State Tax Service on release of property from under arrest which is accepted within two working days which come behind day when such body knew of emergence of the bases for the termination of administrative detention (Item 94.20 of article 94 of the Tax Code of Ukraine).

In turn, release from arrest of means on accounts of the taxpayer according to the paragraph third Item 94.6 of article 94 of the Tax Code of Ukraine happens according to the decision of the same body which imposed the corresponding arrest, that is by a court decision. The tax authority in that case does not make the decision.

At the same time the bases for application both administrative detention of property, and arrest of means on accounts of the taxpayer, are universal and are determined by Item 94.2 of article 94 of the Tax Code of Ukraine. Both types of arrest, by the general rule, are applied on the identical bases, but differ with the procedure of application - or according to the decision of the head of tax authority (concerning the property different from means), or by a court decision (arrest of means).

Specified follows from system interpretation of precepts of law which contain in article 94 of the Tax Code of Ukraine. These regulations regulate as legal relationship which arise when imposing administrative detention of property, and arrest of means of the taxpayer, and content of legal regulation is stated in single context.

Given is confirmed also Rather applications of administrative detention of property of the taxpayer, the approved order of the Ministry of Finance of Ukraine of November 7, 2011 No. 1398.

The Section VII of this Procedure determines features of application of arrest of means on accounts of the taxpayer as kinds of administrative detention of property.

At the same time according to Item 7.3 of this Procedure for application of arrest of means on the account of the taxpayer the body of the State Tax Service files a lawsuit the action for declaration according to the procedure, provided by the Code of administrative legal proceedings of Ukraine, in day of decision making about application of administrative detention of property of the taxpayer.

The rule provided by regulation of the considered subordinate regulatory legal act is applied if tax authority acknowledged necessary to apply administrative detention as property of the taxpayer different from means, and means on the account of such taxpayer. The seizure of property and arrest of means on accounts of the taxpayer on the procedure determined by Item 7.3 of the specified Procedure is imposed on the bases, stipulated in Item 94.2 articles 94 of the Tax Code of Ukraine.

At the same time the Tax code of Ukraine provides also other, additional cases of seizure of means of the taxpayer, except those which are determined by article 94 of this Code.

So, according to subitem 20.1.17 of Item 20.1 of article 20 of the Tax Code of Ukraine, bodies of the State Tax Service have the right to take a legal action concerning seizure of means and other values of such taxpayer which are in bank if the taxpayer who has tax debt has no property and/or its book value less amount of tax debt, and/or such property cannot be source of repayment of tax debt.

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