General legislative norms
According to Resolution of the Cabinet of Ministers of Ukraine № 1261 as of 29.10.2024 “On the introduction of the export guarantee regime”, export guarantee regime was put into effect from December 1, 2024, provided for by Clause 1 Article 192 of the Law of Ukraine № 959-ХІІ as of 16.04.1991 “On the foreign economic activity” with changes (hereinafter – Law № 959).
Clause 2 Article 192 of the Law № 959 stipulates that temporarily, for a period of validity of the export guarantee regime, export outside the customs territory of Ukraine of products classified under codes 0409 00 00 00 (natural honey), 0802 31 00 00 (walnuts in shell), 0802 32 00 00 (walnuts in shell), 1001 (wheat and meslin), 1002 (rye), 1003 (barley), 1004 (oats), 1005 (maize), 1201 (soybeans, whether or not ground), 1205 (rape or colza seeds, whether or not broken), 1206 00 (sunflower seeds, whether or not broken), 1507 (soybean oil and its fractions, whether or not refined), 1512 (sunflower, safflower or cottonseed oils and their fractions, whether or not refined), 1514 (rape (rapeseed or colza) or mustard oils and their fractions, whether or not refined), 2306 (oilcake and other solid waste and residues resulting from the extraction of vegetable or microbial fats and oils, excluding waste of heading 2304 or 2305, whether or not ground, unpelleted or in the form of pellets) according to Ukrainian classification of the foreign economic activity products (hereinafter – individual product types), are carried out taking into account peculiarities specified in Article 192 of the Law № 959.
Clauses 210 – 12 Article 192 of the Law № 959 determined that the export guarantee regime does not apply to export outside the customs territory of Ukraine under customs export regime of certain product types:
1) exported as supplies by commercial vehicles according to Article 229 of the Customs Code of Ukraine;
2) included in commodity subcategories 1001 91 10 00 (spelt seed), 1002 10 00 00 (rye seed), 1003 10 00 00 (barley seed), 1004 10 00 00 (oat seed), 1005 10 13 00 (corn seed, triple hybrids), 1005 10 15 00 (corn seed, simple hybrids), 1005 10 18 00 (corn seed, other hybrids), 1201 10 00 00 (soybeans for sowing), 1205 10 10 00 (rape or colza seeds with low erucic acid content for sowing), 1206 00 10 00 (sunflower seeds, crushed or not, for sowing) according to Ukrainian classification of the foreign economic activity products, which are carried out by the value-added tax payers accompanied by a phytosanitary certificate issued taking into account provisions of Paragraph 15 Section IX of the Law of Ukraine № 3348-XII as of 30.06.1993 "On the plant quarantine" with changes (hereinafter – Law № 3348).
Law № 3348 defines legal, organizational, financial and economic foundations of the plant quarantine, powers of the state authorities, their officials, rights and obligations of legal entities and individuals aimed at preventing introduction and spread of regulated harmful organisms that are absent in the territory of Ukraine.
Phytosanitary certificate is a document in paper or electronic form that complies with model approved by the International plant protection convention and certifies that shipment of regulated items meets phytosanitary requirements of the importing country.
Regulated objects – any plant, plant product, storage location, packaging, transportation type, containers, soil and any other organisms, objects or materials capable of carrying or spreading regulated harmful organisms, which are separately determined for import, export and re-export, as well as for controlling movement through the territory of Ukraine (Article 1 of the Law № 3348).
Provisions of Paragraph 15 Section IX of the Law № 3348 establish that temporary, for a period of validity of the export guarantee regime, requirements for issuing a phytosanitary certificate for exporting certain product types in the form of regulated objects included in the commodity subcategories 1001 91 10 00, 1002 10 00 00, 1003 10 00 00, 1004 10 00 00, 1005 10 13 00, 1005 10 15 00, 1005 10 18 00, 1201 10 00 00, 1205 10 10 00, 1206 00 10 00 according to Ukrainian classification of the foreign economic activity products.
Issuance of certificates provided for by the Law № 3348 is carried out according to procedure approved by Resolution of the Cabinet of Ministers of Ukraine № 1177 as of 15.11.2019 "Some questions of implementation of the Law of Ukraine "On the plant quarantine", which provides that issuance, re-issuance of a phytosanitary certificate and a phytosanitary certificate for the re-export is carried out for import, export and re-export of regulated objects included in the list of regulated objects exported outside the customs territory of Ukraine.
For purposes of moving regulated objects, including certain product types within the customs territory of Ukraine, issuance of a phytosanitary certificate is not provided.
Legal basis for the VAT taxation is established by Section V and Subsection 2 Section XX of the Tax Code of Ukraine, with changes and additions (hereinafter – Code).
Basic rules for compiling tax invoice are regulated by Article 201 Section V of the Code and are regulated by the Procedure for filling in tax invoice, approved by Order of the Ministry of Finance of Ukraine № 1307 as of 31.12.2015, registered in the Ministry of Justice of Ukraine on 26.01.2016 under № 137/28267, with changes (hereinafter – Procedure № 1307).
Paragraphs 201.1 and 201.10 Article 201 Section V of the Code determine that carrying out supply of products/services, on the date of occurrence of tax liabilities, the taxpayer is obliged to compile tax invoice in the electronic form using a qualified electronic signature or advanced electronic signature based on a qualified electronic signature certificate of a person authorized by the payer according to requirements of the Law of Ukraine “On the electronic identification and electronic trust services” with changes, and register it in the Unified Register of Tax Invoices within period established by the Code.
List of obligatory requisites specified in tax invoice is defined in Sub-paragraphs "a" - "l" Paragraph 201.1 Article 201 Section V of the Code, which particularly include description (nomenclature) of products/services and their quantity, volume.
According to Sub-paragraph 3 Paragraph 16 of Order № 1307, data is entered in section B of tax invoice in the context of description (nomenclature) of supply of products/services, including in columns 4 and 5 – measurement unit of products/services.
Measurement unit of products/services indicated in columns 4 and 5 of section B of tax invoice is filled in according to the System classifier of designations of measurement units and accounting, valid on the date of compiling tax invoice: column 4 indicates conventional designation of the corresponding unit title of measurement/accounting (Ukrainian), specified in the System classifier of designations of measurement units and accounting; Column 5 – code of the corresponding unit of measurement/accounting, specified in the System classifier of designations of measurement units and accounting. If the supplied products/service has accounting unit that is not in the System classifier of designations of measurement units and accounting, column 4 indicates conventional designation of the measurement unit of such products/service, which is used for accounting and reflected in primary documents.
Temporarily, for a period of validity of the export guarantee regime introduced by the Cabinet of Ministers of Ukraine according to Article 192of the Law № 959, the VAT taxation of export outside the customs territory of Ukraine under the customs export regime of certain product types is carried out taking into account peculiarities determined by Paragraph 97 Subsection 2 Section XX of the Code.
Sub-paragraph 97.1 Paragraph 97 Subsection 2 Section XX of the Code stipulates that the VAT payer, for exporting certain product types outside the customs territory of Ukraine under the customs export regime, is obliged to compile separate tax invoice for each such product and register it in the Unified State Register of Tax Invoices by the date of submission of customs declaration for customs clearance of such products.
Subparagraph 97.2 Paragraph 97 Subsection 2 Section XX of the Code stipulates that in tax invoice compiled for export outside the customs territory of Ukraine under the customs export regime of certain product types:
only one product may be indicated under one code according to Ukrainian classification of the foreign economic activity products;
product measurement units are indicated in kilograms.
Tax invoice compiled in violation of such requirements will not be accepted for registration in the Unified State Register of Tax Invoices.
Tax invoice compiled for supply on the customs territory of Ukraine of certain product types, product measurement units are indicated in kilograms.
Questions and Answers:
Question 1
Can the taxpayer indicate measurement units other than kilograms in column 4 of the tabular part of tax invoice compiled for supply of agricultural crop seeds in the customs territory of Ukraine, classified by codes from Ukrainian classification of the foreign economic activity products specified in Article 192 of the Law № 959, carried out starting from 01.12.2024 without issuing a phytosanitary certificate?
Answer to question 1
In case that the taxpayer, starting from 01.12.2024, carries out supply in the customs territory of Ukraine of certain product types specified in the last Clause of Article 192 of the Law № 959, to which the export guarantee regime does not apply (seeds of agricultural crops with codes according to Ukrainian classification of the foreign economic activity products: 1001 91 10 00, 1002 10 00 00, 1003 10 00 00, 1004 10 00 00, 1005 10 13 00, 1005 10 15 00, 1005 10 18 00, 1201 10 00 00, 1205 10 10 00, 1206 00 10 00), both with and without registration of a phytosanitary certificate (provided that such registration is not required by the regulatory legal acts), in column 4 of the tabular part of tax invoice, product measurement units other than kilograms may be indicated.
Question 2
How should codes according to Ukrainian classification of the foreign economic activity products be indicated in tax invoices compiled starting from 01.12.2024 for supply within the customs territory of Ukraine or export outside the customs territory of Ukraine of certain product types to which the export guarantee regime does not apply?
Answer to question 2
In case that the taxpayer carries out, from 01.12.2024, supply in the customs territory of Ukraine or export outside the customs territory of Ukraine of certain product types specified in the last Clause of Article 192 of the Law № 959, to which the export guarantee regime does not apply, product code according to Ukrainian classification of the foreign economic activity products (column 3.1 of the tax invoice) is indicated at the level of 10 characters.