Regarding peculiarities of determining the “first” and “subsequent” violations related to the improper use of RRO/PRRO

Paragraph 1 Article 3 of the Law of Ukraine № 265/95-VR as of 06.07.1995 “On the use of registrars of settlement operations in trade, public catering and services” (hereinafter – Law № 265) stipulates that business entities are obliged to carry out settlement operations for the full amount of purchase (provision of service) through registered, sealed in due manner and transferred to the fiscal working mode registrars of settlement operations (abb. RRO) or through registered by the controlling body software registrars of settlement operations (abb. PRRO) with creation of paper and/or electronic form of relevant settlement documents confirming execution of settlement operations or in cases provided for by this Law with use of settlement books registered according to the established procedure.

Article 2 of the Law № 265 stipulates that settlement operation is acceptance of cash, payment cards, payment checks, tokens, etc. from the buyer at the trade place, issuance of cash for products returned by the buyer (not provided service) and in case of using bank payment card – issuance of the corresponding settlement document regarding the non-cash payment for products (services) by the buyer's bank or, in case of return of products (refusal of service) – issuance of settlement documents regarding the transfer of funds to the buyer's bank.

Therefore, the business entity is obliged to use RRO/PRRO performing each settlement operation.

Sub-paragraph 113.3 Article 113 of the Tax Code of Ukraine stipulates that in case that the taxpayer commits two or more violations of other legislation, control over compliance with which is entrusted to the controlling bodies, there are applicable punitive (financial) sanctions (fines) for each committed one-time and ongoing violation separately.

Above specified is consistent with judicial practice of the Supreme Court (ruling as of 22.02.2022 in case № 640/4426/19), since sale of products without use of RRO and/or PRRO is not a continuous violation and failure to issue cashier's check, during each sale of product, is recognized as a separate violation, then subsequent non-use of RRO and/or PRRO during the sale of products (provision of services) is a separate violation, i.e. subsequent non-use of RRO and/or PRRO or failure to issue check, will be considered as a repeated violation.

Herewith, the qualifying feature of such violation is repetition of the corresponding action, which is established in case committing several offenses by an individual.

As follows, in case that, during the audit of business entity, duly confirmed facts of repeated violations of requirements for use of RRO and/or the PRRO are discovered, financial sanctions are applied to business entity, in particular, for the first of such operations in the form of fine, as for the first violation and for each subsequent – as for the next violation.