December 28, 2021
This year’s final meeting of the Ukrainian Bar Association Committee on Tax and Customs Law was recently held to discuss the tax changes awaiting us in 2022. Senior Partner of Alexander Minin and Adviser Yuliia Kryvomaz took part in the meeting.
During the discussions of tax changes in 2022, the speakers could not but mentioned the imperfections of the current tax legislation that we have today. Exactly this issue was the topic of Alexander Minin’s report. There are a lot of questions to the legislators regarding technical and logical inconsistencies, but the main question is whether the Verkhovna Rada can adopt everything it wants. Is there any protection from the whims of the legislator?
In Alexander’s opinion, the protection can be found in the Constitution of Ukraine and in other laws, but it seems that the legislator sets restrictions, and then violates them himself, “establishing laws in violation of the law.”
Although the situation is not very optimistic, but it is still possible to find a solution paying attention, first of all, on such aspects as expediency and proportionality of norms and laws. Alexander reminded that there is Article 7 of the Code of Administrative Procedure of Ukraine, according to which if even a court of first instance considers a norm or law to be unconstitutional, the court may not apply it. The court can appeal to the Supreme Court and the Constitutional Court to consider the constitutionality of such law/norm. At least taxpayers have urgent protection.
It is possible to apply directly to the Constitutional Court. The path is not easy, and there are only few such decisions in practice, but it is still possible. For example, as we repeatedly mentioned, the proceedings on the constitutional complaint of Andritz Hydro GmbH regarding the disproportionate fines for late registration of tax invoices.
To develop this direction of fighting “lawless law”, Alexander suggests that the Ukrainian Bar Association (UBA) joins forces and starts with a letter to the Constitutional Court asking for mutual discussion of cooperation. Alexander and Yuliia have already prepared a draft of such a letter and will continue to work in this direction together with their UBA colleagues.
The video recording of the meeting is available by the link.