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Court confirmed legality of tax notification-decision for 61.7 million UAH

, published 20 February 2023 at 11:37

By Resolution of the Cassation administrative court as a part of the Supreme Court as of 14.12.2022 in case № 826/12996/17 cassation appeal of Main Directorate of the State Tax Service in Kyiv city was partially satisfied, Decision of the Sixth administrative appellate court as of 14.01.2020 regarding satisfaction of claims regarding recognition of tax notification-decision as illegal and its cancellation № 0004671402 as of 12.07.2017 (61 724.0 thousand UAH) is canceled; proceedings in this part of claims are closed. The other part was left unchanged.

Court detected that the plaintiff and the PJSC “VTB Bank” concluded contract on the provision of a restorative callable credit line № 10-0604/299к-07 as of 07.13.2007, according to which deadline for the debt repayment is 07.11.2014 (hereinafter – contract).

According to paragraph 1.1.1 of contract, loan will be granted within the maximum debt limit of 7 400 000.00 (seven million four hundred thousand) US dollars 00 cents in separate parts, hereinafter each part will be referred to separately as a "Tranche" and collectively as "Tranches" on terms defined by this contract, with a reduction of the maximum debt limit according to the schedule. Deadline for the debt repayment is 11.07.2014.

Amount of the loan debt that exceeds the maximum allowable loan debt after payment, established on the relevant date, is considered an overdue debt according to paragraph

Paragraphs 3.2.1, 3.2.9 of contract establish that creditor has a right, in case of late repayment of the Loan Tranche or late payment of interest for use of loan funds, to issue order for compulsory payment of debt obligation and levy a charge to ensure fulfillment of obligations under the loan in case of failure to repay the loan or its parts in amounts within terms specified in paragraph 1.1, non-payment of interest and fines according to terms of this contract.

Further, between the LLC "Lin Bekker" and the PJSC "VTB Bank" was contract № 27 as of 25.11.2014 on amendments to contract on the provision of a restorative callable credit line № 10-0604/299k-07as of 13.07.2007, according to paragraph 1.1. 2 of which the borrower is obliged to repay the loan granted in UAH and US dollars, according to the loan repayment schedule, namely: date of repayment of part of the loan (not later than) 26.02.2015.

Any borrower's debt of the loan, which exceeds the loan amount determined on the relevant date, is considered an overdue debt.

According to provisions of Part 1 of Article 257 of the Civil Code of Ukraine, the general statute of limitations is set at three years.

Statute of limitations is calculated according to the general rules for determining time limits established by Articles 253-255 of this Code (Part 1 Article 260 of the Civil Code of Ukraine).

Content of this norm specified that beginning of statute of limitations coincides with moment when the interested party has a right to sue, that is, opportunity to exercise own right in a compulsory manner through the court.

According to the contract terms there is debt repayment schedule under the relevant contract, its repayment term and amount.

Taking into account the contract content, given that the latter contains separate independent obligations that detail debtor's obligation to repay the entire debt in parts and establish independent responsibility for failure to fulfill this obligation, the creditor's right is considered violated from the moment debtor fails to meet the repayment term of each regular payment, and therefore, statute of limitations for each regular payment starts from the moment of violation of its repayment term.

If the credit contract establishes separate obligations that detail borrower's obligation to repay debt in parts and provide for independent responsibility for failure to fulfill this obligation, then in order to establish the repayment period of such obligation, terms of the loan repayment contract and beginning of statute of limitations should be examined for collection of each separate payment, which was not done by the appellate court.

Therefore, taking into account prescriptions of Articles 349, 350 of the Code of Administrative Procedure of Ukraine, cassation appeal is subject to partial satisfaction; decision of the appellate court is subject to partial cancellation, which concerns claims for recognition of tax notification-decision № 0004671402 as of 07.12.2017 as illegal and its cancellation.