Court confirmed legality of position of the State Tax Service

Press service of the State Tax Service of Ukraine, published 17 July 2023 at 11:23 Chapter: News

Ruling of the Fifth Administrative Court of Appeal dated 15.06.2023 in case No. 420/21182/21 supported position of Main Directorate of the State Tax Service in Odesa region and concluded that claim for the invalidation of contracts on the assignment of the claim right, for the set-off of opposing uniform claims is subject to satisfaction and conclusion of the specified contracts was aimed at free delivery of products under export operations, which led to the non-receipt of foreign exchange revenue to Ukraine, and therefore violates the export-import trade balance of Ukraine, which grossly contradicts interests of the State.

Court of Appeal, taking into account legal position of the Supreme Court in rulings dated 31.01.2020 in case No. 1340/3649/18; dated 16.04.2019 in case No. 911/483/18; dated 21.11.2018 in case No. 755/9929/15-ts reached conclusion and adheres to a consistent position regarding conditions that must be met by claims that may be subject to credit, in particular, they must: 1) be countervailing (creditor under one obligation is a debtor for another and the debtor for the first obligation is creditor for the second); 2) be homogeneous (claims for the transfer of things of the same kind can be credited, in connection with which crediting as a method of termination is usually applied to obligations to transfer generic things, in particular money). Rule on the homogeneity of claims applies to their legal nature, but does not apply to the basis of such claim. Therefore, it is allowed to include uniform requirements arising from different grounds (different contracts, etc.); 3) deadline for fulfillment of such requirements has come, has not been established or determined at the time of presentation of claim.

Revoking decision of the previous instance, the Fifth Administrative Court of Appeal took into account Paragraph 18 of Resolution No. 9 of the Plenum of the Supreme Court of Ukraine dated 06.11.2009 "On the judicial practice of consideration of civil cases on the recognition of operations as invalid", list of operations that are null and void as violating public procedure defined by Article 228 of the Civil Code of Ukraine: 1) acts aimed at violating constitutional rights and freedoms of a person and citizen; 2) acts aimed at destruction, damage to property of individual or legal entity, state, Autonomous Republic of Crimea, territorial community, its illegal possession, and it is indicated that such acts encroach on the public, economic and social foundations of the state, in particular: acts, aimed at illegal use of communal, state or private property; operations aimed at illegal alienation or illegal possession, use, disposal of objects of property rights of Ukrainian people - land as main national wealth under special protection of the state, its subsoil, other natural resources (Article 14 of the Constitution of Ukraine (254k/96- VR)); acts regarding alienation of stolen property; operations that violate legal regime of objects of civil law withdrawn from circulation or restricted in circulation, etc.

Therefore, the controlling body has authority to apply to the court with a lawsuit to declare operations invalid and apply measures determined by the law related to the declaration of operations invalid, as well as to recover from the state income funds received under invalid contracts.

At the same time, operation may be declared invalid by the court if it contradicts the Civil Code of Ukraine, other acts of civil legislation, as well as interests of the state and society, its moral principles.

Court of Appeal summarized that it should be assumed that meeting of requirements implies simultaneous participation of parties in two obligations, where creditor under one obligation is the debtor in the other. That is, parties simultaneously participate in two obligations, while creditor of one obligation is the debtor of the other, and vice versa. As for the homogeneity of requirements, it is determined by their legal nature and material content (expression) and does not depend on reasons that led to emergence of obligations. This means that requirements are considered homogeneous if obligations of parties to each other must be fulfilled in the same way, while grounds for emergence of obligations may be different.

Therefore, by ruling of the Fifth Administrative Court of Appeal dated 15.06.2023 in case No. 420/21182/21, appeal of Main Directorate of the State Tax Service in Odesa region was satisfied and decision of Odesa District Administrative Court dated 08.11.2022 was canceled.