І. IN BEHALF OF TAXPAYES


The Resolution of the SACU from 08.04.2015. K / 800/36230/14 (http://reyestr.court.gov.ua/Review/43940992)


«Taking into consideration that fact, that the decision of the investigator from 12.12.2013 was adopted on the conduct of the counter documentary verification of" Forline "LLC. in the relations with" Pallum-Trade "LLC for the period from 01.01.2011 to 01.12.2013, the Court of Appeal, in contrast from the court of first instance, made the correct conclusion about the absence of subclause 78.1.11 of clause 78.1 of Par. 78 of TC, grounds for the appointment and conduct of an unscheduled inspection of the company, in connection with which the order of the head of the DPI in the Moscow district of Kharkiv, the Ministry of Income in the Kharkiv region from 01.13.2014, No. 19 on conducting a documentary unscheduled on-site verification of the plaintiff and actions concerning its conduct are unlawful».


Comment. The court decree has been assigned a counter-check, however, the tax authority has appointed an unscheduled documentary check. The Supreme Administrative Court recognized the actions of the tax authority as unlawful and canceled the order to carry out the inspection.


The Resolution of the Supreme Administrative Court of Ukraine from 25.02.2015 in case No. K / 9991/70032/12 (http://reyestr.court.gov.ua/Review/42946042 )


«However, in the case under consideration, the decision of the Leninsky district court of Luhansk city from 18.05.2012 in case number 4-251 / 12 abolished the resolution of the investigator for 02.02.2012 on the initiation of a criminal case No. 02/12/8007 concerning the Director of the Society OSOBA_1 on the grounds of the crime envisaged Article 212 of the Criminal Code of Ukraine (tax evasion)».


Thus, the judicially established unlawfulness of the resolution on the initiation of a criminal case No. 02/12/8007 indicates the inability of this ruling to give rise to legal consequences. Therefore, at the time of appointment and conducting of the Inspectorate of the disputed tax audit, the basis for its carrying out, as provided for in subclause 78.1.11 of clause 78.1 of Paragraph 78 of the Tax Code of Ukraine, did not exist.

The above proves the correctness of the court's conclusion about the unlawfulness of the disputed order of the Inspection on the appointment of a controversial inspection and actions of the defendant on its conduct, in connection with which the court of appeals substantiatedly satisfied the claim in the relevant part.


Comment. A check cannot be conducted in the absence of criminal proceedings, even if the decision to carry out the inspection was made during the "active" criminal proceedings.



ІІ. NOT IN BEHALF OF TAXPAYERS


The Resolution of the Supreme Administrative Court of Ukraine from 07.09.2016 in case No. К / 800/2921/16 (http://reyestr.court.gov.ua/Review/61162819 )


«The courts of preliminary instances established that within the framework of criminal proceedings ... a resolution was adopted from 22.04.2015 on the appointment of an unscheduled documentary inspection by LLC "Viva Lux Plus"».


It is correctly stated by the courts of preliminary instances that the tax authority is not authorized to verify the legality of the decision in the framework of criminal proceedings, and in the presence of the ground provided for in subclause 78.1.11 of clause 78.1 of Paragraph 78 of the Tax Code of Ukraine, the right to appoint such an inspection.
Thus, the panel of judges of the cassation court agrees with the conclusions of the courts of the previous instances that the challenged order was adopted within the powers granted to the tax authorities on the grounds provided by the Tax Code of Ukraine, and therefore the claims cannot be satisfied ".


Comment. An order to carry out the inspection was formed in accordance with the court decision. The lawfulness of a court decision cannot be verified by the tax authority. Therefore, the order is considered lawful.


The Resolution of the Supreme Administrative Court of Ukraine dated June 14, 2014 in case No.К / 800/862/16 (http://reyestr.court.gov.ua/Review/58506028 )


«The plaintiff testifies to the court that the Law of Ukraine" On Prosecutor's Office "of 14.10.2014, which acted at the moment of the adoption of the resolution dated April 20, 2015 on the appointment of a documentary unscheduled inspection, the prosecutor had no rights and authority to make such a decision. The panel of judges in this regard notes that the said resolution was adopted in accordance with the Criminal Procedure Code of Ukraine, and not the Law of Ukraine "On the Prosecutor's Office", and this Code defines the powers of the bodies of pre-trial investigation. As regards the plaintiff's link to item 6, part 1, Article. 40 CPC of Ukraine, which provides for the right to appoint inspections in accordance with the procedure provided for by law, then the code is also a law that is codified according to the degree of ordering. That is, normative acts, approved by the laws, in which the rules of law regulating a certain group of social relations are systematized and systematized on a scientific basis, are adopted in the form of codes and Fundamentals of Legislation. ».


Comment. Despite the lack of authority in the specialized Law of Ukraine "On the Prosecutor's Office", the prosecutor has the right to make a decision on the appointment of an inspection, since such powers are provided by the Criminal Procedure Code of Ukraine.


The Resolution of the Supreme Administrative Court of Ukraine dated 10/08/2014 in case No.К / 800/57558/13 (http://reyestr.court.gov.ua/Review/40949856 ):


«Also, it should be noted that the disputed inspection was intended to comply with the resolution of the investigator in accordance with clause 78.1.11 of item 78.1 of Article 78 of the TC, according to which a documentary unscheduled inspection is carried out in the case of obtaining a court order (court order) on the appointment of an inspection or a decision of the inquiry authority, investigator, prosecutor, made by them in accordance with the law in criminal cases, which are in their proceedings.


The given legislative requirement does not put the verification in dependence on the presence of the requisite primary documents from the payer.


Comment. The absence of primary documents does not serve as a reason for postponing the verification of the tax code set out in paragraph 78.1.11 of the Tax Code of Ukraine.


More in detail with the peculiarities of carrying out inspections on the basis of clause 78.1.11 of the Tax Code of Ukraine can be found in the article: «Tax inspections by court decision bypassing the" moratorium ": what do the taxpayer do?».

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