September 30, 2021
On September 28, 2021, the online meeting of the Committee on Tax and Customs Law of the Ukrainian Bar Association was held on the topic “Judicial tax practice: new and interesting aspects”. expert Yuliia Kryvomaz delivered a report on the unconstitutionality of some regulations of tax legislation and how to deal with it.
In accordance with the legislation, one can obtain the right to file a constitutional complaint, but there are a number of conditions stipulated by the Constitution of Ukraine and the Law of Ukraine “On the Constitutional Court of Ukraine” for the application of such a mechanism. In particular, obtaining a final decision on a dispute with a tax authority. That is, the tax dispute is lost, and additional tax assessments are paid.
However, Yuliia reminded her colleagues that it is not necessary to wait for all instances to lose and, as a consequence, to pay the obligations in the case in order to raise the issue about the unconstitutionality of the rules. Now the courts have the right not to apply a regulation, if it does not comply with the Constitution, already at the stage of consideration of the case by the courts of first instance. It is only necessary to encourage the courts not to forget about this right and to use it more often.
A clear example of such a mechanism in operation was demonstrated by Yuliia in a specific case, in which proceedings were opened in the Constitutional Court of Ukraine on the basis of a complaint regarding fines for late registration of tax invoices. That is, the court recognized the arguments of the attorneys at law as sufficient to accept the case for consideration.
For more details on the main theses of the report, please follow the link.