of December 25, 2013 No. 1770/12/13-13
To chairmen of Appeal administrative courts
Due to the origin in court practice of the questions connected using measures of providing the claim in case of appeal by taxpayers of subordinate regulatory legal acts of the Ministry of Finance of Ukraine or the Ministry of the income and charges of Ukraine and its bodies 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.
Part one of article 117 of the Code of administrative legal proceedings of Ukraine determines that the court according to the petition of the claimant or on own initiative can decide determination about taking measures of providing the administrative claim if there is obvious danger of damnification to the rights, freedoms and interests of the claimant before decision making on administrative case, or protection of these rights, freedoms and interests will become impossible without acceptance of such measures, or for their recovery it will be necessary to make considerable efforts and expenses and also if signs of illegality of the decision, action or divergence of the subject of powers of authority are obvious.
Follows from contents of the provided legislative arrangement that application of measures of providing the claim by court perhaps, in particular, in case of threat availability for realization by person of the rights and interests or impossibility of their protection (recovery) further.
When taking measures providing the claim in the form of suspension of action of the disputed subordinate regulatory legal acts of the Ministry of Finance of Ukraine or the Ministry of the income and charges of Ukraine (their separate provisions) which establishes, in particular, forms of tax statements the procedure for implementation by bodies of the income and charges of the powers is determined, courts shall consider the following.
According to Item 46.4 of article 46 of the Tax Code of Ukraine if the taxpayer considers that the form of the tax declaration determined by the central executive body, providing forming and realizes the state tax and customs policy, increases or reduces its tax liabilities, contrary to regulations of this Code on such tax or collection, he has the right to specify this fact in the specially allotted place in the tax declaration.
In case of need the taxpayer can give together with such tax declaration of amendment to such declaration which are constituted in any form which are considered as integral part of the tax declaration. Such amendment moves with explanation of motives of its representation.
Considering the stated regulation the legislation provides extrajudicial procedure for protection by the taxpayer of the rights and/or interests connected with reflection in tax statements of data of tax accounting. The taxpayer, irrespective of the established form of tax statements, has the right to submit the corresponding reporting thus which, in his opinion, correctly reflects content of its rights and obligations in the field of the taxation.
It does not deprive of the right of the taxpayer to appeal the regulatory legal act (its separate provisions) which, in his opinion, does not conform to requirements of the law in court.
At the same time in case of the solution of question on providing the claim of the taxpayer for recognition illegal regulatory legal acts of the central executive body realizing the state financial policy or the central executive body which provides forming and realizes the state tax and customs policy courts shall consider legal possibility of independent realization by the taxpayer of the rights and obligations irrespective of content of forms of tax statements.
Based on Item 46.4 of article 46 of the Tax Code of Ukraine the taxpayer can exercise the right on due as he considers, reflections of indicators of tax accounting, even until the decision court on the merits of the case about legality of forms of tax statements. At the same time the inevitable threat for realization by the taxpayer of the rights and obligations usually is not created, and recovery of the appropriate rights in case of adoption of the decision by court for benefit of the taxpayer cannot be complicated.
Under such circumstances courts have no bases for taking measures of providing the claim provided by part one of article 117 of the Code of administrative legal proceedings of Ukraine in the form of suspension of action of the disputed regulatory legal act which approves forms of tax statements.
About taking measures of providing the claim for cases in which matter in issue are other subordinate regulatory legal acts of the central executive body realizing the state financial policy or the central executive body which provides forming and realizes the state tax and customs policy courts shall consider it.
Existence of the subordinate regulatory legal act not in all cases excludes the actual realization by taxpayers of the rights and interests. In separate situations taxpayers are not deprived of opportunity to act on the basis of the regulations of the highest legal force, in particular the Tax code of Ukraine. At the same time in case of application to such payer of negative consequence in law, including determinations of monetary commitments by monitoring body to such taxpayer, this payer is not deprived of the right to appeal the corresponding charges in court. At the same time the court will solve case taking into account hierarchy of regulations, preferring assembly the highest legal force.
Considering stated courts shall take measures of providing the claim for illegality of regulatory legal acts of the central executive body realizing the state financial policy or the central executive body which provides forming and realizes the state tax and customs policy taking into account the actual objective obstacles in realization of the rights and interests of the taxpayer or in emergence of considerable complications in their protection in the future.
This letter we suggest to inform judges of district and Appeal administrative courts for accounting when implementing justice.
Vice-chairman of court
Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info
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