Taxpayers, attention!
Answers to questions that arise complying with requirements of Order of the Ministry of Finance of Ukraine № 225 as of 29.07.2022 "On approval of Procedure for confirming possibility or impossibility of the taxpayer's performance of obligations specified in Sub-paragraph 69.1 Paragraph 69 Sub-section 10 Section XX "Transitional provisions" of the Tax Code of Ukraine and lists of documents for confirmation" (hereinafter – Order № 225)
Question 1
Clause 7 of Paragraph 1 Section II of Procedure for confirming possibility or impossibility of the taxpayer's performance of obligations and Method of informing controlling authorities, approved by Order № 225 (hereinafter – Procedure), specifies existence of other compelling circumstances as one of the documented grounds for impossibility of performing tax obligation (force majeure circumstances). At the same time, there is no detailing what exactly the force majeure circumstances can be as a justification for this reason.
Answer:
Force majeure circumstances (circumstances of irresistible force) are extraordinary and unavoidable circumstances that objectively make it impossible to perform obligations stipulated in terms of the contract (agreement, etc.), obligations according to legislative and other regulatory acts, in particular, it is defined: threat of war, armed conflict, general military mobilization, hostilities, declared and undeclared war, acts of a public enemy, disturbances, terrorism acts, sabotage, riots, invasions, blockades, curfews, forced removals, seizure of businesses, fire, explosion, closure sea straits, embargo, prohibition (restriction) of export/import, etc. (Part 2 Article 141 of the Law of Ukraine "On commerce and industry chambers in Ukraine").
Basing on Paragraph 13 of the List of documents confirming impossibility of the taxpayer – legal entity, in particular, with respect to its branch, representative office, separate or other structural unit, to timely fulfill tax obligations, including the tax agent’s obligation, approved by Order № 225, in particular, but not exclusively, includes documents testifying to damage, destruction, loss of property that is on the balance sheet of an enterprise and is taxation object, the only source for paying taxes or that is in a tax lien (act on an extraordinary event, inventory description, inventory commission protocol, signed by a representative of territorial body of the State Emergency Service, according to which such events are reflected in accounting and actual events are described, material losses incurred are indicated (list of property, its value); application to the law enforcement agencies; act of independent assessment; availability of an insurance policy, application of insurance case, etc.).
Herewith, it should be noted that decision on the taxpayer's possibility or impossibility of timely performing tax obligation to comply with payment of taxes and levies, submission of reporting, is made by the controlling body based on the comprehensive review results of all provided supporting documents and reasons for such circumstances.
Question 2
From which date/event are 60 calendar days counted for submitting application and documents regarding impossibility of fulfilling tax obligations, if the taxpayer could not submit such application by September 30, 2022?
Answer:
If the taxpayer, including in relation to his / her branch, representative office, separate or other structural subdivision, does not have opportunity to submit application and relevant documents (copies of documents) confirming impossibility of fulfilling tax obligation to the controlling body by September 30, 2022 (inclusively), such taxpayer must do this simultaneously with renewal of opportunity to perform one of tax obligations (registration of tax invoice, submission of reporting, payment of outstanding tax liability, etc.), but no later than 60 calendar days from the first day of a month following by the month of renewal of such opportunities (Clause 2 Paragraph 4 of the Procedure).
For example, if the taxpayer acquired ability to perform one of tax obligations (registration of tax invoice, submission of reporting, payment of an outstanding tax liability, etc.) on October 20, 2022, then the application and relevant documents must be submitted by such taxpayer to the controlling body within a period starting from October 20, 2022 to December 30, 2022 (inclusively) (11 calendar days of October (number of days before the end of a month in which the possibility of fulfilling tax obligations is renewed) + 30 calendar days of November + 30 calendar days of December (60 calendar days from on the first day of a month following the month of renewal of such opportunities)).
Taxpayers who have not submitted, within the time limits established by Paragraphs 3 and 4 Section II of the Procedure, applications in an arbitrary form and relevant documents (copies of documents) confirming impossibility of fulfilling tax obligation provided for by the Code or other legislation, control over the implementation of which is entrusted to controlling bodies or in respect of which the controlling body has made a reasoned decision regarding the possibility of timely fulfillment of tax obligations by such taxpayer, are considered to be able to perform tax obligations in a timely manner within terms determined by the Code or other legislation, control over the implementation of which is entrusted to controlling bodies (Paragraph 7 Section II of the Procedure).
