During the moratorium, any inspections, in particular documentary, factual or cellular prohibited, and tax notices taken as a result thereof, shall be subject to revocation (Kyiv Appellate Administrative Court, No. 823/1338/16)
Draft lawsuit: In our time of crisis, there is a moratorium or a ban on inspections by supervisory authorities in many areas, including in the area of completeness and timeliness of payment of tax liabilities. However, many government agencies use exemptions from the current prohibition, which broaden their interpretation and resort to unlawful actions.
In this case, the fiscal authority carried out a check, that is, carried out by officials of the controlling body without leaving the taxpayer by analyzing the data contained in the taxpayer's reports and declarations. That is, suddenly the taxpayer received a notification-a decision on the payment of the land payment obligations, which appealed to the court.
Courts are on the side of the taxpayer and guided by paragraph 3 of Section ІІ of the Law of Ukraine of December 28, 2014 №71-VII "On Amendments to the Tax Code of Ukraine and some legislative acts of Ukraine regarding tax reform" declared illegal and canceled the decision -message. In particular, the courts stressed that the existing prohibition applies to all types of tax inspections, including documentary, factual or commerical.
Interestingly, although de facto the taxpayer was actually charged with a violation of land payment, administrative justice has determined the overwhelming role of the prohibition on conducting inspections of the violations committed by the taxpayer and which were established during the inspection. Thus, despite the fact that the fiscal authority correctly established the violation of the law by the taxpayer, it was not entitled to establish this because of the moratorium, therefore his act was declared unlawful by the court and canceled.
KYIV APPLEATIONAL ADMINISTRATIVE COURT
: No. 823/1338/16 Presiding at the 1st instance: Ridzel O.A.
Judge-Rapporteur: Fedotov IV
ENTERED
In the name of Ukraine
December 13, 2016. Kyiv
The College of judges of the Kyiv Appellate Administrative Court, consisting of:
presiding judge Fedotov IV,
judges: Isaenko Yu.A. and Oksenenko O.M., _3 _
with the participation of the secretary Polyakova AO,
Having considered in an open court session, in the courthouse, the appeal of the Cherkasy unified state tax inspectorate of the Main Directorate of the State fiscal service in Cherkasy region on the ruling of the Cherkasy District Administrative Court of October 24, 2016 in a suit on the suit of the Limited Liability Company "NVO Zubr »To the Cherkasy Unified State Tax Inspection of the Main Department of the State Fiscal Service in Cherkassy Oblast on the recognition of unlawful and abolishing tax notices,
INSTALLED:
Limited Liability Company "NVO Zubr" (hereinafter - the plaintiff, LLC "NVO Zubr") appealed to a court in a lawsuit to the Cherkasy United State Tax Inspectorate of the Main Directorate of the State Fiscal Service in Cherkasy region (hereinafter - the defendant) on the cancellation of the tax notice-decision dated June 29, 1966 No. 0000671200.
The administrative claim was satisfied with the Cherkasy District Administrative Court's ruling of October 24, 2016.
Disagreeing with the aforementioned court decision, the defendant filed an appeal, in which he requests that the decision of the court of first instance be canceled, in connection with the violation of the procedural and substantive law by the court of first instance and to accept a new one to refuse to comply with the claim.
In the court session the parties did not appear, about the day, time and place of the trial were properly reported, in connection with which, the panel of judges, on the basis of Part 6 of Art. _1 _ 12 , part 1 of article. 41 , part 4 of article. 196 CAS Ukraine consider the case in their absence without fixing the court session with the help of a sound recording device.
Having heard the judge-speaker, having examined the arguments of the appeal and having checked the materials of the case, the panel of judges considers that the appeal is not subject to satisfaction on the following grounds.
According to Clause 1, Clause 1 of Art. _1 _ 198 , part 1 of the article. 200 KAS of Ukraine , the court of appeals leaves the complaint without satisfaction, and the ruling of the court - unchanged, if it recognizes that the court of first instance correctly established the circumstances of the case and adopted a court decision to comply with the rules of substantive and procedural law.
As established by the court of first instance and evidence of the case file, LLC "UDO Zubr" Limited Liability Company was registered as a legal entity with identification code 31537108 on 15.11.2004.
29.06.2016 Senior State Auditor-Inspector of the Department of Taxes and Fees for Legal Entities Veretelnik Zhanna Pavlovna on the basis of pp 20.1.4 item 20.1 item 20 , art. 76 The Tax Code of Ukraine dated 02.12.2010 No. 2755-VI was conducted by the Chamber audit on the timeliness of payment of the agreed tax liabilities from the payment for the land of the limited liability company "NVO ZUBR".
According to the results of this inspection, an act No. 363 / 23-25-12-046 / 31537108 was drawn up, according to which a violation of the term of payment of a monetary obligation from the rent for land was established, than violated pp 126.1 items 126 of the Tax Code of Ukraine dated 02.12.2010 No. 2755-VI .
Thus, the conclusions of the inspection act state that the plaintiff filed a declaration dated June 04, 2013, No. 9035819869, which independently identified and agreed rent for land for 2013 in the amount of 68,750 UAH per 1 kopeck. However, payment of monetary obligations was carried out in violation of terms .
Due to delayed payment of the amount of the monetary obligation in the amount of 45 433 UAH per 147, 139, 127, 114, 97, 85, 76, 76, 76, 58, 55, 30, calendar days. The plaintiff has been charged a fine of 9086 UAH. 60 kopecks, about which a tax notice was issued, decision dated June 29, 2016, No. 000671200.
Disagreeing with the defendant received by the tax notice-decision, the plaintiff appealed to the court with this claim.
In deciding on the satisfaction of claims, the court of first instance proceeded from the following motives, with which the panel of judges also agrees.
According to clause 76.1 . Art. 76 pcs of Ukraine , the office check is carried out by officials of the controlling body without any special decision of the head of such body or referral for its conduct. The entire tax return is subject to a comprehensive check. The consent of the taxpayer for verification and his presence during the conduct of a desk inspection is not required.
At the same time, in Item 3 of Section ІІ of the Law of Ukraine of December 28, 2014, №71-VII "On Amendments to the Tax Code of Ukraine and certain legislative acts of Ukraine concerning the tax reform" it was established that in 2015 and 2016 inspections enterprises, institutions and organizations, individuals - entrepreneurs with a volume of income up to UAH 20 million for the previous calendar year by the controlling bodies are carried out solely with the permission of the Cabinet of Ministers of Ukraine, at the request of the business entity for its verification, according to a court decision or in accordance with with requirements of the Criminal Procedural Code of Ukraine . The above restriction does not apply: from January 1, 2015, for inspections of business entities that import into the customs territory of Ukraine and / or produce and / or sell excisable goods, to verify compliance with the legislation on the issue of licenses, the completeness of the accrual and payment of tax on personal income, single social contribution, reimbursement of value added tax; from July 1, 2015, for checking taxpayers of the second and third (individual entrepreneurs) groups, except for those who carry out activities in the markets, the sale of goods in the retail retail network through the means of the mobile network, except for single tax payers specified in paragraph 27 division 10 of section XX "Transitional provisions" of the Tax Code of Ukraine , on compliance with the order of application of accountants of settlement operations.
Thus, the legislator has imposed an imperative prohibition on carrying out inspections of business entities by the bodies of the State fiscal service of Ukraine in 2015 and 2016 for the previous year. In this case, the ban applies to any type of inspection, that is, documentary, factual or commerical.
Exceptions to this prohibition are foreseen only if the entity has an income of more than UAH 20 million for the previous calendar year; the verification was conducted with the permission of the Cabinet of Ministers, at the request of the business entity, in accordance with the court decision or in accordance with the requirements of of the Criminal Procedural Code of Ukraine ; in the case when an entity enters the customs territory of Ukraine and / or produces and / or sells excisable goods (from January 1, 2015).
As is apparent from the case file and is correctly established by the court of first instance, according to the tax return No. 9276505906 of the corporate profit tax, the total taxable income received by the plaintiff from conducting economic activity for 2015 is UAH 56,814, that is, less than 20 million.
In this case, the limited liability company "NVO Zubr" does not fall under any exclusion from the ban. Thus, the volume of its income for the previous year is less than 20 million hryvnias, the Chamber is not appointed by the request of the business entity, not by the permission of the Cabinet of Ministers, not by a court decision or according to the requirements of of the Criminal Procedure Code of Ukraine , the plaintiff also does not carry out transactions with excisable goods and evidence of the opposite defendant is not provided.
In the circumstances, the panel of judges supports the conclusion of the court of first instance that the Chamber's inspection of the limited liability company "NVO Zubr" was carried out by the defendant in contravention of the legislative ban on its execution, and, consequently, the tax notice issued by it as of the result of such verification, dated 29.06 .2016 No. 0000671200 is also illegal.
In view of the above, the panel of judges agrees with the conclusion of the Cherkasy District Administrative Court on the validity of the claims and the existence of legal grounds for their satisfaction.
The arguments set out in the appeal do not invalidate the correct conclusions of the court of first instance.
Thus, the panel of judges considers that the court of first instance correctly established the circumstances of the case and the court decision was adopted in accordance with the rules of substantive and procedural law, the arguments of the appeal of the court conclusions do not refute, therefore the grounds for cancellation of the ruling are not seen.
Guided by st.st. 41 , 195 , 196 , _7 _ 198 _2 _, 200 , 205 , 206 ,
Glyanec