Regarding the use of international electronic document management services by taxpayers – legal entities

Regarding the use by taxpayers – legal entities as subjects of electronic document flow of international electronic document management services, in particular the "DocuSign" service, for taxation purposes (in terms of signing foreign economic contracts (agreements) and other documents related to their implementation, primary documents) at the request of the State Tax Service, the Ministry of Digital Transformation of Ukraine provided explanation.  

Ministry of Digital Transformation notes that according to Part 1 of Article 205 of the Civil Code of Ukraine, deed can be done orally or in written (electronic) form. Parties have a right to choose form of the deed, unless otherwise established by the law.

Deed is considered to have been committed in writing if its content is recorded in one or more documents (including electronic ones), in letters, telegrams exchanged by parties, or sent by them to the information and communication system used by the parties. If content of the deed is recorded in several documents, content of such deed can also be recorded by referring to other documents in one of these documents, unless otherwise provided by the law. Deed is considered to have been made in writing if the will of parties is expressed by teletypewriter, electronic or other technical communication means. Use of facsimile reproduction of signature using mechanical, electronic or other copying means, electronic signature or another analogue of a handwritten signature in the execution of deed is allowed in cases established by the law, other acts of civil legislation, or with written consent of the parties, which must contain samples of the corresponding analogue of their handwritten signatures, or otherwise regulate procedure for its use by the parties (Article 207 of the Civil Code of Ukraine).

Law of Ukraine "On electronic identification and electronic trust services" regulates relations that arise between legal entities, individuals, subjects of authority in the process of providing and receiving electronic identification services, wallets with digital identification and electronic trust services, procedures for providing such services, supervision and control over compliance with legislative requirements in spheres of electronic identification and electronic trust services. Laws of Ukraine may establish specifics of legal regulation of electronic identification and provision of electronic trust services in certain spheres of public relations (Article 2 of the Law of Ukraine "On electronic identification and electronic trust services").

Primary documents can be compiled in paper or electronic form and must have the following obligatory requisites: title of document (form); compilation date; name of the company on behalf of which the document was compiled; content and scope of the economic operation, measurement unit of economic operation; positions and surnames (except for primary documents, requirements for which are established by the National Bank of Ukraine) of persons responsible for implementation of economic operation and correctness of its registration; personal signature or other data that make it possible to identify person who participated in the implementation of economic operation. Primary documents created automatically in electronic form by the software of information and communication system are used in accounting, provided that there is imposed electronic signature or seal in compliance with legislative requirements on electronic documents and electronic document management. Primary documents compiled in electronic form are used in accounting, subject to compliance with legislative requirements on electronic documents and electronic document flow (Article 9 of the Law of Ukraine "On accounting and financial reporting in Ukraine").

At the same time, Article 6 of the Law of Ukraine "On electronic documents and electronic document management" specifies, in particular, that electronic signature can be used to identify author of electronic document. Imposition of electronic document is completed by applying electronic signature. Subjects of electronic document management use electronic signatures and electronic seals in cases established by the law or by agreement between the relevant subjects.

Electronic document management is carried out according to legislation of Ukraine or on the basis of contracts defining relationship between the subjects of electronic document management (Article 14 of the Law of Ukraine "On electronic documents and electronic document management").

According to Parts 1 and 2 of Article 15 of the aforementioned Law, subjects of electronic document management, which perform it on a contractual basis, independently determine access mode to electronic documents containing confidential information and establish system (methods) of protection for them. In information, electronic communication, information and communication systems that provide for the exchange of electronic documents containing state information resources or information with limited access, protection of this information must be ensured according to legislation.

Taking into account above specified, the Ministry of Digital Transformation concludes that legislation in spheres of electronic identification, electronic trust services and electronic document management does not establish restrictions on the use of electronic signatures created and imposed using the "DocuSign" service, including on the signing of primary documents with such signature, if other specifics of legal regulation in this area are not established by legislation or on a contractual basis.