Analytics

The Supreme Court of Ukraine with its decision as of June 24, 2014 left the decisions of the courts of previous stages regarding cancellation of tax notifications on penalty charging for the late payment of the corporate profit tax by the enterprise, which interests are represented by the KM Partners law firm.

On April 1, 2014 the Supreme Court of Ukraine left the decisions of the courts of previous stages, which satisfied the claim of the client on the cancellation of the tax demand regarding the assessment of the tax debt and fine for the tax in arrears.

Thus, eliminating differences in application by the court of cassation of the same norms of the substantive law, the Chamber of the Litigation Chamber on administrative cases of the Supreme Court of Ukraine found that according to the rules of the paragraph one of subparagraph 4.1.4 of paragraph 4.1 of Article 4 of the Law # 2181-III in its system connection with content of subparagraph 4.1.5 of this paragraph of Article 4 of the aforementioned Law, the deadline for submission of the tax declaration, in particular, for the base tax (reporting) period, which is equal to the calendar quarter, in case the 40-th day is a weekend, is the following business day. Thus, the beginning of the 10-days period, established by subparagraph 5.3.1 of paragraph 5.3 of Article 5 of the Law # 2181-III, for payment of the tax liability stated in the tax declaration is connected with such business day, when this declaration was submitted.

Thus, the Supreme Court of Ukraine has determined that the conclusion of courts of previous instances regarding enterprise compliance of the established by subparagraph 5.3.1 of paragraph 5.3 of Article 5 of the Law # 2181-III deadline for payment of tax liability with consideration of postponement of the deadlines for submission of the report seeing the weekends or holidays is based on correct application of the provisions of substantive law.

It is worth mentioning that according to Article 244-2 of the Code of Administrative Proceedings of Ukraine such resolution of the Supreme Court of Ukraine is obligatory for all authorities which apply in their activity regulatory and legal act, which contains the aforementioned provisions of law, as well as for all courts of Ukraine. Courts are obliged to bring their court practice in compliance with the resolution of the Supreme Court of Ukraine.

Thereafter, the aforementioned cases can be considered as the precedent, since this issue concerns interests of many taxpayers, and the aforementioned resolution clearly states the position of the Supreme Court of Ukraine regarding this matter.

It should be separately noted that the respective provisions of paragraph 4.1 of Article 4 and paragraph 5.3 of Article 5 of the Law # 2181-III are similar in their content with effective as of now paragraph 57.1 of Article 57 and paragraph 49.20 of Article 49 of the Tax Code of Ukraine:

Thus, the Resolutions of the Supreme Court of Ukraine are also precedent to the application of the provisions of the effective Tax Code of Ukraine.

Herewith it should be noted that on April 2, 2014 the Ministry of Revenues and Duties of Ukraine explained that the deadline for payment of taxes and fees is not postponed seeing the deadlines for tax declaration submission. Herewith the Ministry of Revenues and Duties of Ukraine stated that if the last day for payment of taxes and fees is a weekend or a holiday, the Tax Code of Ukraine does not foresee the postponement of deadlines for payment. Thus, the taxpayer is obliged to pay at his own discretion  the amount of tax liability, stated in tax declaration submitted by him, within 10 calendar days after the last day of respective deadline for submission of tax declaration (without taking the postponement of deadlines for submission of the report seeing the weekends or holidays in consideration).

Taking into account that the aforementioned provisions of the Tax Code of Ukraine are equal to the provisions of the Law # 2181 (as analyzed above), the Explanation of the Ministry of Revenues and Duties as of 02.04.2014 regarding deadline for payment of taxes and fees, which states that a taxpayer is obliged to pay at his own discretion the amount of tax liability, stated in the tax declaration within 10 calendar days after the last day of respective deadline for submission of declaration without taking the postponement of deadlines for submission of tax declaration seeing weekends or holidays into consideration, is contrary to the Resolutions of the Supreme Court of Ukraine as of April 1, 2014 and June 26, 2014, which are obligatory for execution by all authorities, including the Ministry of Revenues and Duties of Ukraine (State Fiscal Service of Ukraine at the present time).

The aforementioned Resolutions of the Supreme Court of Ukraine may be found below.

Download pdf-file of Resolution in Ukrainian (124,0 Kb)

Download pdf-file of Resolution of the SСU of 24.06.2014 in Ukrainian (3,0 Mb)

The above commentary presents the general statement for information purposes only and as such may not be practically used in specific cases without professional advice.

Kind regards,

© TOV "KM Partners", 2014

Leave a comment