Court confirmed legality of imposing financial sanctions in the amount of over 8.6 million UAH

Court of appeal supported the controlling authority’s position regarding legality of adopted tax notification-decision, which imposed a penalty (financial sanction), (fine) in the amount of 8 610.325.47 UAH for violation of Paragraphs 1, 2, 11, 12 Article 3 of the Law of Ukraine "On the use of registrars of settlement operations in trade, public catering and services".

Panel of judges emphasizes that if legal basis for conducting audit is relevant Sub-paragraph of Paragraph 80.2 Article 80 of the Tax Code of Ukraine, which contains only one actual basis for this, then indicating in order only this Sub-paragraph without disclosing its content and detailing circumstances is not a significant drawback of order that would give grounds to consider it unlawful.

Based on the audit results, the tax authority concluded that fiscal checks created, according to which excisable products were sold, cannot, in their form and content, be settlement documents according to Regulations on the form and content of settlement documents/electronic settlement documents, Procedure for submitting reports related to the use of settlement accounting books (settlement books), form № ZVR-1 of Report on the use of settlement accounting books (settlement books), approved on January 21, 2016 by Order of the Ministry of Finance of Ukraine № 13.

Panel of judges believes that during the actual audit, the defendant had legal opportunity to use tax information contained in the Recording data system of registrars of settlement operations, specifically regarding verification of presence (absence) of the digital value of barcode of the excise tax mark on alcoholic beverages, information and data of which are actual reflection (duplication) of settlement operations carried out by the plaintiff in relevant audit period.

Court of appeal notes that violations are completed from the moment of issuing settlement document that does not comply with the established form or failing to conduct settlements through registrars of settlement operations with a fiscal operating mode. For the first such operation, a fine should be applied as for the first violation, and for each subsequent one – as for a repeated violation (in increased amount). Each fact established by the controlling authority regarding conduction of settlements through registrars of settlement operations with a fiscal operating mode is a separate violation. At the same time, the qualifying characteristic of such violation is repetition of the relevant act, which is established in case of a person committing several violations. Amount of financial sanctions is determined taking into account number of times the violations were committed, regardless of whether such violations were detected by the controlling authority within the framework of one audit.

Third administrative court of appeal on 20.11.2024 in case № 280/4080/24 upheld appeal of Main Directorate of the State Tax Service in Zaporizhzhia region; decision of Zaporizhzhia district administrative court as of 18.09.2024 was canceled and new court decision was adopted to refuse the taxpayer’s claim.