Legal relations in this area are regulated by the Tax Code of Ukraine (hereinafter – Code), Law of Ukraine as of 06.07.1995 № 265/95-VR “On the use of registrars of settlement operations in trade, public catering and services” (hereinafter – Law № 265).
Establishing norms regarding the non-use of registrars of settlement operations in Laws other than the Tax Code of Ukraine is not allowed.
Paragraph 2 Article 3 of the Law № 265 stipulates that business entities that carry out settlement operations in cash and/or non-cash form are obliged to provide a person who receives or returns product, receives service or refuses it, including those whose order or payment is made using the Internet, upon receipt of products (services), settlement document of the established form and content for the full amount of transaction, created in paper and/or electronic form (including, but not exclusively, with the reproduction on the display of registrar of settlement operations or display of a device on which software registrar of settlement operations is installed, of a QR code that allows the person to read it and identify it with settlement document according to the data structure contained in it, and/or by sending electronic settlement document to the subscriber number or e-mail address provided by such person).
Please note that obligation to use registrars of settlement operations / software registrars of settlement operations (hereinafter – RRO / PRRO) arises for selling products (works, services) not only during settlement transactions, but also provided that they are carried out by business entities in the course of their economic activity. Provided that settlement transactions are carried out, business entities are obliged to register sales of products (works, services) using RRO / PRRO, accounting book of settlement operations, adjustment calculations, taking into account special provisions of the Law № 265.
Form and content of settlement document are determined by Regulation on the form and content of settlement documents, which was approved by Order of the Ministry of Finance of Ukraine as of 21.01.2016 № 13, approved by the Ministry of Justice of Ukraine on 02.11.2016 under № 220/28350.
Law of Ukraine № 675-VIII as of 03.09.2015 “On electronic commerce” (hereinafter – Law № 675) defines organizational and legal principles of activities in the electronic commerce in Ukraine, establishes procedure for concluding electronic transactions using information and communication systems, and defines rights and obligations of participants in relations in the electronic commerce.
Sub-paragraph 14 Paragraph 1 Article 3 of the Law № 675 establishes that the product sale by distance means conclusion of electronic contract based on the buyer's familiarization with product description provided by the seller in manner prescribed by this Law, by providing access to catalogs, brochures, booklets, photographs, etc. using information and communication systems, television, postal, radio communication or in another way that excludes possibility of the buyer's direct familiarization with products or product samples during conclusion of such contract.
Clause 2 Paragraph 1 Article 13 of the Law № 675 stipulates that payments in the e-commerce may be made using payment instruments, electronic money, by transferring funds or paying in cash in compliance with legislative requirements on the execution of cash and non-cash payments, as well as in another manner provided for by legislation of Ukraine regulating provision of payment services.
At the same time, the Seller (contractor, supplier), payment service provider, payment system operator or other person who received payment for product, work, service according to terms of electronic contract must provide the buyer (customer, consumer) with electronic document, receipt, merchandise or cash receipt, ticket, coupon or other document confirming the fact of receipt of funds, indicating the date of payment (Paragraph 3 Article 13 of the Law № 675).
Please note that obligation to use RRO / PRRO on a general basis from 01.01.2022 does not apply only to individuals-entrepreneurs who are the single tax payers of Group I.
Regulation on the procedure for issuance and acquiring of payment instruments, approved by Resolution of Board of the National Bank of Ukraine № 164 as of 29.07.2022 (with changes) (hereinafter – Regulation № 164), establishes requirements of the National Bank for issuance/acquiring of issued payment instruments (including electronic payment instruments, prepaid payment instruments) and making settlements using them.
In the view of requirements of Regulation №164, document for transaction using payment instruments (payment terminal receipt) must be provided for payment transactions for the transfer of funds that were initiated using payment instruments through payment terminals (virtual or physical).
Payment terminal receipt may be in paper and/or electronic form (Paragraph 156 Section VIII of Regulation № 164).
Carrying out transactions using electronic payment instruments in the e-commerce and remote service systems, it is allowed to form document in electronic form for transaction using electronic payment instruments, provided that it is delivered to the user.
Herewith, according to clarification of the National Bank of Ukraine (letter № 57-0007/62082 dated 28.11.2019), receipt received making payment using electronic payment instruments is not a settlement document within meaning of the Law № 265 and does not confirm sale of products (receipt of services), but only confirms initiation of the transfer of funds from electronic payment instrument holder's account.
It should be noted that in case the holder of payment instrument (payment card) initiates payment transaction through payment service provider (as an acquirer/payment service provider who has entered into agreement with the acquirer) for the benefit of recipients (municipalities, merchants, individuals, postal operators, etc.), payment service provider is neither the payer nor the recipient of such payment transaction. In such case, the payer (actual) is relevant payment card holder, and the recipient (actual) is relevant municipal enterprise, merchant, individual, postal operator, etc.
Taking into account above specified, if consumer, using the Internet, ordered products (works, services) and payment was made using electronic payment instruments using payment services, such transactions are carried out with obligatory use of RRO by the seller of products (works, services) and provision to the consumer of payment document of the established form (fiscal cash receipt from RRO / PRRO).
At the same time, determining relationship of the business entity with the recipient of products (works, services), it is obligatory to determine place of settlement. That is, if the place of settlement cannot be determined (for example: the consumer receives computer programs, electronic books, certificates, conclusions, expert assessments, etc. exclusively in electronic form), then in this case its use is optional. In other cases (i.e. physical receipt by the consumer of products, services or acceptance of works), the business entity is obliged to use RRO on the general grounds.
In this case, settlement document must be generated and printed not later than delivery of products (provision of services, acceptance of work) and in case of simultaneous receipt of payment and transfer of products, works, services to the buyer – during the settlement for them.
We ask business entities to take note of the above specified information and use it carrying out business activities in order to prevent violations of requirements of current legislation and avoid misunderstandings with controlling authorities during audits.