Legal relations in this sphere are regulated by the Tax Code of Ukraine (hereinafter - the Code) and the Law of Ukraine as of 06.07.1995 №. 265/95-BP “On the use of registrars of calculated operations in the sphere of trade, catering and services” (hereinafter - the Law №. 265).
The Law №. 265 determines legal principles for the use of registrars of calculated operations (hereinafter – the RCO) in the sphere of trade, catering and services. It is applied to all business entities, their economic units and representatives (authorized individuals) of business entities that carry out cash and / or non-cash payment operations.
It is not allowed to set the rules for non-usage of the RCO in Laws other than the Tax Code of Ukraine.
According to Article 2 of the Law №. 265, calculated operation – is acceptance of cash, payment cards, payment checks, tokens, etc. from the buyer at the place of sale of goods (services), withdrawal of cash for the goods returned by the buyer (failed service) and in the case of payment by the bank card – processing of the relevant calculated document for payment in the non-cash form for goods (services) by the buyer’s bank or, in case of return of goods (refusal of services), processing of calculated documents on transfer of funds to the buyer’s bank.
Place of calculated operation – is the place where payments are made with the buyer of goods (services) and the place where the cash received for sold goods (services) is stored, as well as the place where the buyer receives the prepaid goods (services) using payment cards, payment checks, tokens, etc. (Article 2 of the Law №. 265)
According to Paragraph 2 Article 3 of the Law №. 265, business entities that carry out cash and / or non-cash calculated operations are obliged to issue the relevant calculated document for the full amount of conducted operation of the prescribed form for the full amount of operation to individual who receives or returns goods, receives or refuses services, including those whose orders or payment were made via the Internet.
Form and content of the calculated document are determined by the Regulation on the form and content of calculated document that was approved by the Order of the Ministry of Finance of Ukraine as of 21.01.2016 №. 13 approved by the Ministry of Justice of Ukraine as of 11.02.2016 №. 220 / 28350.
Herewith, Paragraph 12 Article 9 of the Law №. 265 prescribes that the RCO and settlement books are not applicable unless calculated cash operations (the wholesale, etc.) are carried out at the place of acceptance of the goods (provision of services).
The Law of Ukraine as of 03.09.2015 №. 675-VIII “On the E-Commerce” (hereinafter – the Law №. 675) determines the principles of activity in the sphere of the E-commerce, establishes the procedure for committing electronic transactions using information and telecommunication systems and defines the rights and obligations of participants of the E-commerce relations.
Sub-paragraph 14 Paragraph 1 Article 3 of the Law №. 675 prescribes that the sale of goods remotely means the conclusion of an electronic contract on the basis of acknowledge of the buyer with the description of goods provided by the seller in the manner stipulated by Law №. 675, by providing access to catalogs, prospectuses, booklets, photographs, etc. using information and telecommunication systems, television, postal, radio communication or otherwise, which eliminates the possibility of direct acknowledge of the buyer with goods or samples of goods during the conclusion of such contract.
According to Indent 2 Paragraph 1 Article 13 of the Law №. 675, payments in the sphere of the E-commerce can be carried out, in particular by the transfer of funds or payment in cash, in compliance with the requirements of the legislation on cash and cashless payments, as well as in another way stipulated by the legislation of Ukraine.
Herewith, the seller, payment system operator or other individual who received payment for the goods, work, service in accordance with the terms of the electronic contract, must provide the buyer (customer, consumer) an electronic document, check, bill or receipt, ticket, coupon or other document that confirms the fact of receipt of funds, indicating the date of payment (Paragraph 3 Article 13 of the Law №. 675).
Section VII of the Regulations on the procedure for issuing electronic payment instruments and conduction of operations with their use, approved by the Decree of Board of the National Bank of Ukraine as of 05.11.2014 №. 705, establishes that the documents for operations that are made using electronic payment devices (ie, the bank card, hereinafter referred to as the EPD) and other documents used in payment systems for payment operations using the EPD can be in paper and / or electronic form.
During operations using the EPD in the E-commerce sphere and remote service systems it is allowed to form an electronic document for the operation using the EPD, provided its delivery to the user.
Documents for operations using the EPD have the status of a primary document and can be used for solution of disputes.
At the same time, according to clarifications of the National Bank of Ukraine (Letter as of 28.11.2019 №. 57-0007 / 62082) the receipt that was received during the payment using the EPD is not considered as a payment document in the context of the Law №. 265 and does not confirm the fact of sale of goods (services) and only confirms the initiation of the transfer of funds from account of the EPD holder.
Taking into account all mentioned above, if the consumer ordered goods (services) via the Internet and payment for goods (services) was carried out with the use of the EPD using payment systems (internet acquiring) or payment terminals, such operations must be carried out with obligatory use of the RCO by the seller of goods (services) and issue the calculated document of the prescribed form to the consumer (the RCO check).
Please note that determining the relationship of the business entity with the recipient of goods (services), it is imperative to determine the place of calculated operation. That is, if the place of calculated operation cannot be determined (for example, the receipt of computer programs, e-books, certificates, conclusions, expert assessments, etc. solely in electronic form by the consumer), then the use of the RCO is optional. In other cases (ie, the direct receipt of goods or services by the consumer), the business entity is obliged to use the RCO on a general basis.
Herewith, the calculated document must be generated and printed at the time of the calculated operation. Also, in this case, the business entity has the obligation to issue to the recipient of goods (services) the calculated document (the RCO check), either directly or in any other convenient way, including by the courier, postal service, etc., which can be both a third party organization and a structural unit of the seller of goods (services).
At the same time, if payments are carried out exclusively in the non-cash form (by transferring funds from current account to current account through the bank institution or by depositing funds through the bank’s cash desk) the use of the RCO is optional.
In the case of return of goods (services) that have been sold via the Internet, such operations are reflected in accordance with the established accounting and reporting procedures.
Regarding the possible “cash gap”, we inform you that in case of calculated transactions with deferred payment or in credit, according to the requirements of current legislation, upon the issuing of goods (services), the buyer must issue the calculated document of the established form with the form of payment “IN CREDIT / POST-PAYMENT / DEFERRED PAYMENT”. Thus, a properly executed fiscal check must be issued to the buyer.
In this case, the receipt of funds that come from the sale of goods in credit, should be made at the cash desk of the enterprise with registration of profitable cash orders, or the amount of cash received from the buyer, which corresponds to the amount indicated in the fiscal check with the form of payment “credit / post-payment / deferred payment”, is entered into the RCO box and into the memory of the corresponding RCO by performing the “official entry” operation on this RCO, followed by the indication of number on the official document of the fiscal check under which the goods were sold in credit.
We ask business entities to take this information into account and to use it in the course of their business activities in order to prevent violations of the requirements of current legislation and avoid misunderstandings with the controlling authorities during the audits.