Court supported position of the State Tax Service regarding the plaintiff's non-compliance with deadline for filing claims to the court

Cassation court supported position of the controlling body regarding the plaintiff's failure to meet deadline for filing claim to the court for recovery of a fine charged to the budget for the VAT reimbursement.

Resolution of the Cassation administrative court as a part of panel of judges of the Supreme Court as of 24.08.2023 in case № 480/9238/21 noted that Article 102 of the Tax Code of Ukraine, including Paragraph 102.5 of this Article, is not the "other law" that establishes special deadlines for applying to the court with claims aimed at protecting and renewing violated rights of taxpayers in relations arising in connection with late reimbursement of the VAT budget debt and/or fines charged on such debt, and therefore provisions are subject to application to disputed legal relations of Part 2 Article 122 of the Code of Administrative Procedure of Ukraine, which provides for a general six-month period of appeal to the administrative court.

Cassation court noted that, regardless of whether the budget debt has actually been paid, accrual of penalty is inextricably linked to such debt, and therefore the countdown of a period of appeal to the court begins from the day when a person learned or should have learned about the violation of personal rights, freedoms or interests.

In particular, the Panel of judges of the Supreme Court took into account position of the controlling body that the beginning of a period of applying to the court for collection of penalty begins precisely from the date of occurrence of the budgetary debt for the VAT reimbursement, and not from any other date. As follows, deadline for applying to the court with a demand for accrual and collection of penalties for tax periods of October 2016 and June 2017, for which the plaintiff claimed budgetary reimbursement, has passed.

In the specified Resolution, it is emphasized that the court decisions of the Courts of the first and appellate instances in this case do not meet criteria of the court decision established by Article 242 of the Code of Administrative Procedure, as those adopted as a result of the courts not applying provisions of Part 2 Article 122, Article 123 of the Code of Administrative Procedure of Ukraine, which provides for a general six-month period of appeal to the Administrative court, and therefore are subject to cancellation with referral of the case to the Court of first instance for a new consideration.

Therefore, the Cassation administrative court as a part of panel of judges of the Supreme Court as of 24.08.2023 in case № 480/9238/21 partially satisfied cassation appeal of Main Directorate of the State Tax Service in Sumy region, decision of the Sumy district administrative court as of 13.12.2021 and decision of the Second administrative court of appeal as of 17.08.2022 were canceled; case № 480/9238/21 was remanded to the Court of first instance.