It was established with the Law of Ukraine dated 28.12.2014 No. 71-VIII a moratorium on conducting inspections of business entities in the years 2015 and 2016 with an income volume of up to 20 million. However, such "moratorium" is not absolute and has exceptions that are used by the supervisory authorities. Among such exceptions are carrying out inspections on the court's decision and compliance with the requirements of the Criminal Procedural Code of Ukraine. That is, when deciding whether to conduct a court inspection, such a check can be carried out, and the moratorium does not apply.

Notwithstanding the circumstances of the criminal proceedings, such judicial decisions impose a complex check of the taxpayer, and not an examination of the circumstances, the need for clarification of which actually aroused during the proceedings. In many cases, the reasons for the appointment of such complex inspections are unclear, since the motivating part of court decisions indicates the need for verification of operations for certain counterparties, and not the entire activity of the enterprise during a certain period.

However, despite the lack of motives, the courts designate a comprehensive check. There is no procedural possibility to appeal such a court decision to a taxpayer. Article 309 of the Criminal Procedural Code of Ukraine, in the exclusive list of decisions of an investigating judge who may be appealed in an appeal, does not contain a decision on the appointment of an inspection.

Possible ways to protect yourself from unwarranted coercion for a taxpayer are:

1) not admitting to the inspection and simultaneous appeal of the inspection order.

2) partial admission to the audit, namely the provision of only those documents which are discussed in the motive part of the decision. That is, there is not only a literal reading of the operative part of the court decision in which the complex examination is assigned for a period of time, and the understanding of such an operative part is inextricably linked with its motives.

In the case of no admission to the audit, the taxpayer is in danger of obtaining a court ruling on the seizure of his property in accordance with clause 94.2.3 of the Tax Code of Ukraine. However, in order to protect himself from possible arrest, the taxpayer may appeal the inspection order. In this case, there will be a dispute about the right to conduct an inspection, which is the reason for the refusal to accept the submission by the court of the controlling authority in order to confirm the justification of the administrative seizure of the property, respectively to item 2, part 5 of the article. 183-3 of the Code of Administrative Proceedings of Ukraine. On this occasion, the Supreme Administrative Court of Ukraine in its letter dated 02.02.2011 No. 149/11 / 13-11 noted:

«"The dispute about the right exists in the case when the taxpayer expresses disagreement with the decision of the tax authority, which was the reason for the circumstances to make a corresponding submission. For example, a taxpayer has been appealed against the decision to impose an administrative arrest (paragraph 94.11 of Article 94 of the Tax Code of Ukraine); appealed tax notice-decision ... ".

The controlling body has only 96 hours to confirm the justification of the administrative arrest. And cases of appeals against decisions on inspections are considered much longer.

Even if the order to carry out the inspection was not challenged, the taxpayer may appeal against the decision to impose an administrative arrest, which is also a controversy about the right, and as a result, prevents the court from ruling on the justification of the arrest.

Additional risk of total non-compliance before the inspection, which is appointed in accordance with a court decision, may also initiate criminal proceedings under Art. 382 of the Criminal Code of Ukraine "Failure to comply with a court decision". The decision of the court to carry out the verification came into force, while the official of the taxpayer does not comply with his requirements. Therefore, the crime is formally available at least to initiate a criminal offense.

Therefore, it is more appropriate to provide partial admission to the audit and more narrowly "understand" the operative part of the court's decision to conduct an audit. Namely, to interpret it so that the court considered it appropriate to check transactions with a specific counterparty, and not to carry out a comprehensive check of financial and economic activity of the taxpayer. At the same time, this position should be explained in the corresponding appeal to the supervisory authority.

With partial access to the audit, the possibility of a full appeal to the inspection order is lost. Since, if officials are allowed to conduct an inspection, it is considered that the decision on its implementation (the order) is actually implemented, and therefore this decision can not be challenged. This position is contained in the decision of the Supreme Court of Ukraine of 24.12.2010 in case No. 21-25a10 (http://reyestr.court.gov.ua/Review/14222170).

However, even with partial access, there remains the risk of arresting property of the taxpayer. The provisions of Clause 94.2.3 of the Tax Code of Ukraine, one of the reasons for the imposition of arrest, indicates the refusal of the taxpayer from the admission to the inspection.

To protect themselves from arrest, a taxpayer may file a lawsuit on the abolition of the decision of the controlling authority to impose an arrest. In such a case there will be a dispute about the right, which is the reason for the refusal to accept the submission of a control authority to confirm the validity of the administrative seizure of property in accordance with art. 183-3 of the Code of Administrative Proceedings.

The partial admission of officials of the controlling bodies may provide the taxpayer with additional arguments in the dispute over the cancellation of the decision on arrest, since the admission was granted, and the question is only to interpret the court's decision to carry out the audit, all parts of which constitute its integral part.

It is highly probable that the continuation of the moratorium on inspections can be predicted in 2017. Therefore, problems with conducting complex inspections in accordance with paragraph 78.1.11 of the Tax Code of Ukraine will remain relevant in the future. As a result, TaxResearch & Planning has analyzed judicial practice in the designation of such inspections and prepared a review.

Меню
Close