Court confirmed legality of tax notifications-decisions

Press service of the State Tax Service of Ukraine, published 17 September 2024 at 12:03 Chapter: News

Cassation court supported the controlling authority’s position regarding legality of adopted tax notifications-decisions, which imposed a fine on the plaintiff for not equipping a level meter-counter on a tank put into operation and a fine for not submitting electronic document containing data on the actual remaining fuel and volume of fuel turnover.

Panel of judges draws attention to the fact that legal basis for actual audit is specified in order for audit are Sub-paragraphs 80.2.2 and 80.2.5 of Paragraph 80.2 Article 80 of the Tax Code of Ukraine, and its factual basis is revealed, which has a dual nature at the same time: obtaining information from electronic databases data regarding possible sale and storage of fuel by the taxpayer without equipment of the excise warehouse with a level meter-counter and fuel level meters; as well as for performance of functions by the controlling authority in terms of conducting actual audits regarding equipment of the excise warehouses with level meter-counter and/or level meters with meters. This is minimum permissible amount of information in the sense of Clause 3 of Paragraph 81.1 Article 81 of the Tax Code of Ukraine regarding indication in order of the audit grounds.

Moreover, content of factual basis, which is related to information from the electronic databases available to the controlling authority regarding possible violation by the payer of requirements of tax legislation, which required verification, is additionally supported by reference in this order to report note of the Excisable product control department of the Main Directorate of the State Tax Service in Vinnytsia region, which is also sufficient amount of information according to established practice of the Supreme Court.

Also, taking into account time interval between the moment of printing fiscal check and placing receipt in the referral, the panel of judges considers the plaintiff's argumentations that orders of the actual audit were given to a different person than the one who carried out control settlement operation to be doubtful. At the same time, the person was identified on the basis of driver's license, and his position was determined on the basis of employment order, which was issued during the audit.

Therefore, taking into account the fact that order and referrals for the actual audit were presented to the plaintiff’s authorized person, whose identity and position were properly established on the basis of provided documents, taking into account the fact that the specified person directly carried out settlement operations, the courts reached correct conviction that the defendant did not violate legislative requirements governing audits.

Cassation administrative court as a part of the Supreme Court on 21.08.2024 in case № 120/14157/23 dismissed the plaintiff’s cassation appeal; decision of Vinnytsia district administrative court as of 11.03.2024 and decision of Seventh administrative court of appeal as of 13.05.2024 were left unchanged.