The beginning of the new year is always accompanied by summarizing and evaluating prospects for the future. We offer to your attention the analysis of the most interesting court decisions on tax disputes, which were made during 2016, informs the site


1. A conviction for a counteragent and the assignment to him of the status of a "fictitious enterprise" automatically means the non-commodity of all business transactions


In early 2016, the SCU adopted a decision that established a new view on the presumption of good faith of the taxpayer.

In particular, in the opinion of the SCU, in case of recognition of the contractor's guilty party in the commission of an offense established by Article 205 of the CCU, all business operations of such a counterparty cannot automatically be declared legal, and therefore the formation of a tax credit with VAT or expenses for the purpose of income tax on such transactions is groundless. The SCU considers that the status of a fictitious enterprise is incompatible with legal business activity, even if it is formally confirmed by its primary documents.

(Resolution of the Armed Forces of 26 January 2016 in case number 2a-15327/12/2670, Resolution of the Supreme Court of Ukraine of 14 June 2016 in case number 826/14268/14).


2. Fictitiousness of the enterprise does not testify to the illegality of its entire activity


Despite the unequivocal practice of the Supreme Court in cases of convictions under Article 205 of the Criminal Code, the Supreme Administrative Court of Ukraine in the Ordinance of March 2, 2016 came to completely contradictory conclusions.

Thus, the court did not take into account the existence of a judgment regarding the counterparty, as during the conduct of controversial business operations, the person of the director of the counterparty was confirmed by the data of the Unified State Register of Legal Entities and Individual Entrepreneurs. The fact of signing documents on behalf of the director by another person has not been proved by the handwritten examination. Taking this into account, the court maintained the position of the taxpayer and decided that the establishment of the entity's fictitious nature does not automatically recognize all its activities as unlawful, and transactions made on behalf of such an entity are null and void.

In addition, the Supreme Administrative Court confirmed the tax liability to prove the legality of the tax notice decision, referring to the European Court of Human Right decision in the case of Bulves vs. Bulgaria.».

(Resolution of the Supreme Administrative Court of Ukraine dated March 2, 2016 in case No. K / 800/11712/15 and the Resolution of the Supreme Administrative Court of Ukraine of March 1, 2016 in case No. K / 800/1616/15).


3. Regarding the unconditional procedure for collecting overpayments (budget reimbursement)

The withdrawal from the positions of the Armed Forces has also been demonstrated when considering the category of disputes regarding the collection of budget reimbursement.

Yes, we would remind you that, since 2015, there was a well-established judicial practice of the Supreme Court, according to which: the collection of over-paid taxes (budget reimbursement) from the budget was recognized as the wrong way to protect the rights of the payer. The SCU argued that claims should be made in a claim to oblige the fiscal authority to conclude that the overpayment was returned and submit it for execution to the treasury body.

However, the SACU does not agree with such conclusions and claims that it is the collection of taxes that is an appropriate way of protecting the taxpayer's rights violated. The conclusions of the SACU are as follows: "The failure of the DPI (as a result of the inspection) to conclude with the indication of the amount of the budget reimbursement of VAT is a violation of the right of the taxpayer to a budget reimbursement rather than a conclusion. The administrative court is not limited in choosing ways to restore the rights of a person violated by the authorities, but have the right to choose the most effective way to restore the violated law, which corresponds to the nature of the violation. "».

(Resolution of the Supreme Administrative Court of Ukraine dated March 2, 2016, case No. K / 800/22662/15, the Supreme Administrative Court of Ukraine March 14, 2016, in case No. K / 800/22472/13).


4. Concerning the possibility of submission to the court of additional evidence that was not subject to tax audit


In accordance with Article 44.7 of the Tax Code of Ukraine: if during the verification the taxpayer fails to submit documents confirming the indicators of tax reporting, it is considered that such documents are not available to him. The only way for taxpayers to officially file fiscal authorities with documents that were ignored during verification is to file them together with objections to the adoption of a notice-decision on the addition of taxes. Subsequently, after the adoption of the notification-decision, such documents are no longer taken into account in the administrative and judicial appeal.

However, considering the case No. K / 800/40037/15, the Supreme Administrative Court came to the opposite conclusion. In particular, the Supreme Administrative Court has established: "The court of first instance must accept, investigate, and take into account when deciding all documents and other evidence submitted by the taxpayer." In addition, the court emphasized the duty of the fiscal authority, in the manner prescribed by Article 71 of the CAC to prove the lawfulness of its decision, and not to shift the burden of proof of his wrongfulness to the taxpayer.

(Resolution of the Supreme Administrative Court of Ukraine of 28 January 2016 in case No. К / 800/40037/15)


5. Regarding the possibility of selling goods by the price lower than the cost


There is a well-established practice according to which taxpayers pay VAT for the fact that they sell their own production at prices lower than their cost and use a zero VAT rate.

However, the SACU believes that the establishment of prices for their own products is the right of an entrepreneur who can independently determine their own economic benefits and prospects. In particular, in the Resolution of June 15, 2016, the Supreme Administrative Court of Ukraine established: "It is inadmissible to apply to the payer the responsibility for actions that, although having a consequence of non-payment of the tax (its payment in a smaller amount), however, consist in the use of rights provided to the payer by law, with the dismissal on a legal basis from the payment of taxes or the selection of the most favorable for him forms of entrepreneurial activity and the optimal method of taxation. The unreliability of the tax benefit arises in the case of the use by the payer of artificial forms of economic activity that do not correspond to the actual economic content of a business transaction in order to obtain tax savings without appropriate economic grounds. "».

(Resolution of the Supreme Administrative Court of Ukraine of June 15, 2016 in case No. К / 800/6099/16).


6. Concerning the possibility of bringing tax inspectors to criminal liability


It's no secret that the actions of officials of tax authorities often resemble signs of criminal offenses. If the fact of the crime is proved in accordance with the law, according to Article 2 of the Criminal Code, such persons may be prosecuted. Depending on the objective side and the subjective part of the act committed by officials, liability may be based on: Article 364 of the Criminal Code of Ukraine - for abuse of power or official position; Article 365 of the Criminal Code of Ukraine - for exceeding power or official authority; Article 366 of the Criminal Code of Ukraine - for the compilation, issuance by the official of knowingly false official documents; Article 367 of the Criminal Code of Ukraine - for official negligence. In 2016, judicial practice began to bring tax officials into criminal responsibility. Thus, the judgment of the Solomyansky District Court of Kyiv dated April 28, 2016, in case No. 760/17649/15, to the head of the Tax and Customs Audit Department of the Ministry of the Inland Revenue in the Kyiv region was found guilty of committing the crimes provided for in Article 365.3 and Part 1 of Article 366 of the Criminal Code of Ukraine. The accused transferred the illegal instruction in organizing and conducting inspections of taxpayers, the purpose of which was to become a significant additional payment of tax liabilities. Subsequently, in excess of his official authority, he participated in making false information to the tax audit report.

(Decision of the Solomyansky District Court of Kyiv dated April 28, 2016 in case No. 760/17649/15-k)..


7. Regarding the obligation to pay tax damages to the enterprise


Tax authorities can be prosecuted not only in criminal, but also in economic process.

For example, in the case No. 911/1361/16, the court ordered the tax and treasury to pay material damage to the company in the amount of 85 295, 96 UAH.

The circumstances of the case were as follows: the entity was paid excessive amounts of taxes to the budget, and he appealed to the fiscal authority on the conclusion of the return of these funds, which should have been prepared by the fiscal authority and submitted to the treasury body. Of course, the fiscal authority did not do it at all, not the 5-day deadline, as envisaged by law, and this was his illegal inaction. In need of additional funds for conducting business activities, the entity turned to the bank, which has credited it. Consequently, the entity described the damage or losses as interest in the use of credit funds, which he urgently was forced to draw into his turnover.

(Resolution of the Kyiv Economic Court of Appeal from November 14, 2016 in case number 911/1361/16).


8. Regarding errors in primary documents


In 2016, the final position of the AMSU was formulated for inaccuracies and errors in the primary documentation.

In particular, in the Decision of February 3, 2016 in the case No. K / 800/56473/14, the SACU stated that the inaccuracy in the name of the buyer's enterprise in the tax invoices does not change the content and scope of economic transactions and does not affect the tax obligations and the formation of a tax credit. In the Ordinance dated April 18, 2016, in the case No. K / 800/43598/15, the SACU confirmed that the discrepancy in the primary documentation is the basis for carrying out the documentary off-schedule non-scheduled inspection by the controlling bodies. Consequently, the fact of the differences itself cannot be regarded as a violation of the procedure for filling in a tax bill or as a lack of registration of such a consignment note.

(Resolution of the Supreme Administrative Court of Ukraine of February 3, 2016 in case No. К / 800/56473/14).


9. Concerning the absence of a bill of lading


The absence of a consignment note can no longer be regarded as proof of the lack of operations of the operations.

Thus, in the Resolution from the 15 of December, 2016, in case K / 800/15642/14, the Supreme Administrative Court of Ukraine established the following: "The lack of transportation documents for the transportation of goods and property with the consequences of the formation of the tax base of value added tax is not mandatory for the taxation of transactions for contracts of sale or supply, they are obligatory for the taxation of operations under contracts, it is the carriage, and therefore the absence of the plaintiff goods and transport bills cannot be proof of non-commodity business operations carried out with counterparty, while the fact of transfer of goods to the plaintiff and, accordingly, the acquisition of ownership, confirmed by a properly executed spending bills that appear in the file.

(The Resolution of the Supreme Administrative Court of Ukraine dated December 15, 2016 in case K / 800/15642/14).


10. Regarding the violation of the procedure for appointment and verification


The SACU takes a mixed position on the consequences of procedural violations during the audit. In particular, in the Decision of February 3, 2011 in the case No. K / 800/11101/14, the Supreme Administrative Court argued that procedural violations of the inspection were not such as to unconditionally testify to the unlawfulness of decisions of the controlling authority.

However, such a position has changed dramatically since the adoption of the Supreme Court Resolution of February 16, 2016. In this decision, the panel of judges reaches the following conclusions: the analyzed PC rules, with a balance of public and private interests, established conditions and procedure for the adoption by decision-making bodies of decisions on conducting documentary non-scheduled non-visiting inspections. Only compliance with them can be a valid reason for an inspection order. Failure to comply with the requirements of clause 78.1.1 of clause 78.1 of article 78 and clause 79.2 of article 79 of the PC leads to the recognition of the inspection as illegal and the absence of its legal consequences.

(The resolution of the Supreme Court of Ukraine dated February 16, 2016).

In 2016, the share of resolving tax disputes in favor of the taxpayer increased. This is absolutely logical given the presumption of the legitimacy of decisions of the taxpayer, which is enshrined in Article 4.1 of the PC of Ukraine, and provides that, in the event that it is possible to make a decision in favor of both the taxpayer and the controlling body, the priority of the legality of the decision remains with the payer taxes It remains to be hoped that this trend will remain relevant during 2017.