The website kmp.ua reports. From 2013, to the Tax Code of Ukraine (hereinafter referred to as the TC of Ukraine) by the Law of Ukraine No. 404-VII of 04.07.2013 was included the concept of an authorized person, which supplemented the category of persons who may take appropriate decisions on the part of the controlling bodies. Thus, in particular, p. 56.9 of the TC of Ukraine was changed as follows (additions are highlighted):

 

«The head (his deputy or other authorized official) of the relevant supervisory body may decide to extend the time period for consideration of the taxpayer's complaint within the 20-day time limit specified in paragraph 56.8 of this article, but not more than 60 calendar days, and notify the taxpayer in writing before the expiration of the term specified in paragraph 56.8 of this article.

If a motivated decision on a taxpayer's complaint is not sent to the taxpayer within a 20-day period or within the period extended by the decision of the head (his deputy or other authorized official), such a complaint is fully satisfied in favor of the taxpayer from the day following the last day the specified terms.

 A complainant is also considered to be fully satisfied in favor of the taxpayer if the decision of the head (his deputy or other authorized official) to extend the terms of its consideration has not been sent to the taxpayer before the expiration of the 20-day period specified in the paragraph of the first paragraph”

Thus, these changes have broadened the circle of individuals authorized to decide, at least on the extension of the time limits for processing complaints.

 

At the same time, who were these other officials at the time was not defined by law at that time.

 

For completeness of the statement, we note that the notion of an authorized person of the controlling body or representative on the part of the controlling body occurred in the TC of Ukraine (for example, in paragraph 49.8 .:

 

The acceptance of a tax return is the responsibility of the controlling authority. When accepting a tax return, an authorized official of the controlling body, in which the taxpayer is registered, is obliged to check the availability and reliability of filling out all mandatory requisites ...

"

or in item 86.7:

 

"... The participation of the head of the relevant controlling body (or his authorized representative) in reviewing the objections of the taxpayer to the act of verification is mandatory ...)".

 

However, to these "innovations" such mention was related, rather, to the implementation of technical functions, and did not provide regulatory powers (the right to make appropriate decisions).

2.

The Law of Ukraine "On Amendments to the Tax Code of Ukraine on Improving the Investment Climate in Ukraine" of 21.12. 2016 No. 1797-VIII (hereinafter referred to as the Law No. 1797-VIII) introduced further amendments to the PC of Ukraine on this issue, which we shall consider below.

The notion of "authorized person of the controlling body" is defined. So, according to pp. 14.1.137-1 TC Ukraine:

"Authorized person of the controlling body - the official (service) person of the controlling body, authorized by the head of such body to perform certain of its functions in the manner prescribed by this Code;"

At the same time, in accordance with clause 20.4 of the TC of Ukraine:

«20.4. The head of the supervising body has the right to provide the officials (officials) of such an authority with the powers to perform certain functions provided for in this Code, the law on payment of a single payment, legislation on other issues, the control of which is entrusted to the supervisory bodies, in consultation with the head of the central body executive power implementing the state tax and customs policy.

 

The head of the central executive authority, implementing the state tax and customs policy, has the right to provide the officials (officials) with such a body with the authority to perform certain functions provided for in this Code, legislation on payment of the single payment, other legislation, control over compliance with which is entrusted to regulatory authorities.

 

The Cabinet of Ministers of Ukraine may impose restrictions on the powers of the supervisory authorities to perform certain functions to officials (officials) of such an authority. "

 

That is, the authorized person of the controlling body is the official (service) of such body, which the head of the corresponding body in the specified procedure has been given powers to perform certain functions.

At the same time pp. 21.1.8. The TC of Ukraine stipulates that officials of controlling bodies are obliged:

«21.1.8. to publish on the official web-site of the central executive body implementing the state tax and customs policy, the list of authorized persons of the controlling body and the functions assigned to such persons in cases provided for by this Code; "

 

That is, the list of authorized persons with mandatory definition of functions assigned to each person should be made public on the official web-site of the central executive body, which implements the state tax and customs policy, which is the DFS of Ukraine. In this case, the persons identified in the List have solely the powers specified in such List. In turn, persons who are not in the relevant List do not have delegated powers of authority.

 

Also, the term "authorized person" was introduced into a number of prominent procedural / procedural rules of the TC of Ukraine, in particular (for example):

"56.9. The head (his deputy or authorized person) of the supervisory body may decide to extend the time period for consideration of the taxpayer's complaint within the 20-day period specified in paragraph 56.8 of this article, but not more than 60 calendar days, and to inform the taxpayer in writing before the expiration of the term, as defined in paragraph 56.8 of this article.

 

A complainant is also considered to be fully satisfied in favor of the taxpayer if the decision of the supervisor (his deputy or authorized person) to the supervisory body on the extension of the terms of its consideration has not been sent to the taxpayer before the expiration of the 20-day period specified in the paragraph of the first paragraph of this paragraph.

 

The order to carry out the inspection is valid if the signature of the supervisor (his deputy or authorized person) of the controlling body and the sealing of the control body are signed;

78.4. The head (his deputy or authorized person) of the controlling body conducts a documentary unscheduled inspection and makes a decision, which is issued by an order.

... ..

81.1 The direction for verification in this case is valid if the signature of the supervisor (his deputy or authorized person) of the controlling body, affixed by the seal of the controlling body, is signed.

...

84.3. The controlling body, the head (its deputy or authorized person) of the supervisory body appointed an examination, is obliged to acquaint the taxpayer (his representative) with the decision on the examination, and after the examination - with the expert's opinion.

...

86.7 The participation of a supervisor (his deputy or authorized person) in a supervisory body in considering a taxpayer's objection to an act of verification is compulsory. Such objections are an integral part of the certificate (certificate) of verification.

 

The decision on the determination of monetary obligations is taken by the supervisor (his deputy or an authorized person) of the controlling body, taking into account the results of consideration of the taxpayer's objections (if any).

...

86.8 Tax notice-decision is made by the supervisor (his deputy or authorized person) of the controlling body ...

...

94.6 The head (his deputy or authorized person) of the controlling body, in the presence of one of the circumstances specified in paragraph 94.2 of this article, decides on the seizure of property of the taxpayer; "

 

Accordingly, as it is seen from the foregoing, the right to implement virtually all procedural actions related to the appointment and conduct of tax audit, consideration of objections and complaints, the issuance of tax notices of decisions - in accordance with the requirements of the law, was given to the head of the relevant supervisory body, his deputy or authorized person

 

In case if the relevant actions were taken / the decision was made by any other person, such actions and decisions will be deemed to have been committed contrary to the requirements of the TC of Ukraine, and the relevant persons are such that, contrary to the requirements of Art. 19 of the Constitution of Ukraine acted not on the basis, not within the limits of authority and not in the manner prescribed by law.

 

3.

It is believed that the specified provisions of the law are "underestimated", since in the flow of numerical changes to the TC of Ukraine, remained somewhat unnoticed.

 

However, the correct application of these norms can be decisive in favor of the payer in many situations. For example, in case of sending a decision on the results of consideration of a complaint by a payer signed by a non-executive officer, not his deputy, not a person included in the List of Authorized Persons, published on the official website of the DFS of Ukraine - in accordance with the provisions of p.56.9 of the TC of Ukraine, there is the grounds for a payer's complaint to be fully satisfied.

 

The leaders and the deputies are more or less understandable, but the question is with respect to other signatories, whether they have been legally recognized as having the right to act / make decisions.

 

If the relevant action / decision was made / not taken by either the head of the controlling body or his / her deputy, then the authority of the person who took the relevant action / decision has to be subjected to more scrutiny.

 

In particular, a list with the definition of "authorized persons" and the corresponding powers and functions delegated to them is contained in the List of Authorized Persons of the Supervisory Body located in the section "Useful Documents" under the link.

 

4.

And what if the data on a person who has signed the relevant document from the supervisory authority is not made public on the official website, or the disclosed information does not confirm the authority to do exactly that? Can the relevant actions / decisions taken then be void? Will their non-recognition / non-fulfillment have any consequences for the taxpayer?

 

On the one hand, such issues are not regulated directly at the legislative level. However, there are reasons to insist that the "non-compliance" of the actual exercise of authority, based on data officially published on the site DFS, in effect, is carried out insignificant as a legal fact.

 

Such an understanding will, in particular, correspond to the obvious right of the taxpayer to know / be certain that the person who carries with respect to the taxpayer the relevant authority they really have. It is also in compliance with the declared Law No. 1797-VIII, namely, increasing the transparency and quality of tax administration. After all, what transparency is it possible to say if the taxpayer has no elementary access to the data on which he would be able to verify the lawfulness of the relevant actions / decision-making?

 

If such a question is not regulated at the level of law, one may refer, in particular, to the analogy of the law.

In particular, Part 6 of Art. 7 of the current version of the Code of Administrative Procedure:

"In the absence of a law regulating the relevant legal relationship, the court applies the law governing such relationships (analogy to the law), and in the absence of such a law, the court proceeds from the constitutional principles and general principles of law (analogy of law). The analogy of the law and the analogy of law are not used to determine the grounds, limits of authority and the manner in which the bodies of state power and local self-government act. "

 

The last sentence in this provision that an analogy of law and law can not be used to determine the grounds, limits of authority and mode of action of an authorized person to a public authority should be understood in such a way that the analogy of law (or law) can not be applied to extend the range of grounds, limits of authority and the manner of action beyond the limits prescribed by law. After all, according to Part 2 of Art. 19 of the Constitution of Ukraine

 

"Bodies of state power and bodies of local self-government, their officials are obliged to act only on the basis, within the limits of authority and in the manner envisaged by the Constitution and laws of Ukraine".

 

And in the case we consider, the application of the analogy of the law is possible.

 

5.

An example of such an analogy, according to Art. 45 of the Criminal Procedural Code of Ukraine:

"1. A defender is a lawyer who protects a suspect, accused, convicted, acquitted, a person for whom the use of compulsory measures of a medical or educational nature is foreseen, or the issue of their application was decided, as well as a person in respect of which the consideration of the issue of extradition to a foreign state is envisaged .

 

2. A lawyer whose information is not included in the Uniform Register of Advocates of Ukraine or in respect of which in the Uniform Register of Advocates of Ukraine contains information on the suspension or termination of the right to engage in advocacy "can not be a defender."

 

That is, if the person passed all formalities regarding the passing of the lawyer's examination, he received the relevant documents (a certificate of the right to engage in advocacy), however, for any reason, the information regarding such person was not included in the Uniform Register of Advocates of Ukraine (the only and completely open source information on lawyers of Ukraine), in such a criminal proceeding, such person does not acquire the rights and powers of the defense counsel.

 

Or another example, according to the Law "On State Registration of Legal Entities, Natural Persons - Entrepreneurs and Public Associations":

 

"Article 10. Status of documents and information entered into the Unified State Register

 

1. If the documents and information to be submitted to the Unified State Register, such documents and information are considered to be reliable and may be used in a dispute with a third person.

2. If information to be included in the Unified State Register is false and submitted to it, a third person may refer to them in the dispute as reliable. A third party can not refer to them in the dispute in case if she knew or could have known that such information is unreliable.

3. If the information to be included in the Unified State Register is not included, they can not be used in a dispute with a third party, except when the third person knew or could have known this information. ... ".

 

6.

Given the fact that the authorized representative of the tax authority head authorized to perform public functions, it is entirely natural to expect that the information on the delegation of the respective powers of such a person should be public.

Such disclosure of information on this is important, since this information is crucial for the taxpayer's actions in case of committing appropriate actions / making decisions to such an "unauthorized" person and, therefore, the tax should closely monitor and update such data.

 

Accordingly, if such a person does not have the person who took the appropriate action / took the appropriate decision - they are illegal and should not have negative consequences for the payer.

 

In addition, even if the person concerned is on the list of authorized persons, it is necessary to carefully check the powers granted to him, and in particular, whether he has the authority to carry out exactly the action / acceptance of the decision that was made.

 

For example, according to the list of authorized persons at the moment of writing this review, Antonenko I. L. was granted the right to sign decisions on the results of consideration of taxpayers' complaints. However, in the case of Antonenko I. L., there is no authority to sign decisions on the extension of the timing of consideration of such a complaint. And in fact faced such.

 

At the same time, according to the List of Authorized Persons, placed on the official website of the DFs, with reference to the date of January 22, 2017, the right to sign the decisions on the extension of the period of consideration of complaints is set out in Donets D.V.

 

However, as is known from open sources, no later than at least 20.09. In 2017, Mr. Donos left his job at the DFS (however, he continued to remain the authorized representative of the DFS on the List).

 

Therefore, the list of authorized persons should be carefully checked from a "critical point of view".

 

Thus, if certain actions are taken by you from the controlling authorities / certain decisions are made, it is first necessary to check that the person concerned had the authority to execute them on the basis of officially disclosed data.

 

In the case of "failure" there are grounds for appropriate protective actions, the volume and orientation of which should be determined on a case-by-case basis.

 

On our part, we continue to work on this topic.

 

We pay your attention to the fact that the above comment is not a consultation and is proposed for information purposes. In the specific situations, it is recommended to receive a full professional consultation.

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