Court supported position of tax officials regarding legality of actual audit

Cassation court supported position of the controlling body regarding legality of conducting actual audit of the plaintiff on having licenses for a right to produce, store, carry out whole and retail sale of fuel, registration of excise warehouses, compliance with the established rules for sale of excisable products and results of this audit.

Cassation court emphasized that order on the actual audit of the plaintiff indicated grounds for implementation of control measure, namely: Article 20, Paragraph 75.1 of Article 75, Sub-paragraph 80.2.5 of Paragraph 80.2 Article 80 of the Tax Code of Ukraine, which meets requirements for order established by Paragraph 81.1 of Article 81 of the Tax Code of Ukraine contradicts the plaintiff's argumentations.

At the same time, defendant’s authority to carry out audit and, accordingly, to apply fine (financial sanction) is determined by Sub-paragraph 19-1.1.16 of Paragraph 19-1.1 Article 19-1 of the Tax Code of Ukraine, according to which the controlling body on legal grounds carried out measures to prevent and detect legislative violations in production and circulation of alcohol, alcoholic beverages, tobacco products and fuel.

Analyzing case materials and circumstances, courts established that the plaintiff sold fuel from excise warehouse at address that, on the date of sale, did not have license for the wholesale fuel trade, which determines objectivity of the controlling body's argumentations about violations.

Therefore, Cassation administrative court as a part of panel of judges of the Supreme Court dated 10.10.2023 in case № 500/1301/20 dismissed the taxpayer’s cassation appeal; resolution of the Eighth administrative court of appeal as of 03.03.2021 was left unchanged.