Tuesday, September 19, 2017

Novelty 14 - Digital Evidence

Co-authored by Anton Havryk

This article continues a series of publications on the most striking changes in the new version of the Code of Administrative Procedure of Ukraine for the purposes of tax litigation.

What follows is the overview of the fourteenth most significant change, in our opinion,  attributable to the use of digital evidence.

Along with well-known written evidence, a new kind of evidence will appear. This will be digital evidence. In particular, digital evidence will include:

  • electronic documents (text documents, images, photographs, video and audio recordings);

  • web pages;

  • text, multimedia and other messages;

  • databases.
Digital evidence will be filed with a court, either in the original or in a copy.

As we understand, submitting digital evidence in the original will mean carrying a laptop, smartphone, camera or other multimedia device with recorded information constituting digital evidence to the court for its review.

There seem to be two possible ways of  submitting digital documents in a copy:

  • Submission of an electronic copy of the evidence certified by the  digital signature (probably on a disc or a flash drive);

  • Submission of hard paper copy of digital evidence (printed information).

The court, at its discretion, may request the original of the digital evidence filed in a copy.  

* Photo from http://www.iusinitinere.it

Friday, September 15, 2017

Novelty 13 - Judicial Panel in Court of First Instance for Complicated Cases

Co-authored by Anton Havryk
This article continues a series of publications on the most striking changes in the new version of the Code of Administrative Procedure of Ukraine for the purposes of tax litigation.

What follows is the overview of the thirteenth most significant change, in our opinion,  attributable to the resolution of complicated cases by judicial panel at the court of first instance.

It will be possible for complicated tax disputes to be dealt with by a judicial panel, rather than a single judge, at the court of first instance, just like it now happens with cases adjudicated under commercial litigation rules. The decision on the establishment of a judicial panel will be made by the judge either on his/her  own instance or at the request of a litigant.

At present, filing a petition for the establishment of a judicial panel is one of the most widespread delay tactics used by litigation lawyers in commercial cases. One can see whether this tactic will find its mass application in the administrative proceeding.

Tuesday, September 5, 2017

Novelty 12 - Monopoly of Certified Advocates (Attorneys-at-Law)

Co-authored by Anton Havryk
This article continues a series of publications on the most striking changes in the new version of the Code of Administrative Procedure of Ukraine for the purposes of tax litigation.

What follows is the overview of the twelfth most significant change, in our opinion,  attributable to the monopoly of certified advocates (attorneys-at-law) for the representation in tax disputes.  

The Bill fully implements the amendments to the Constitution of Ukraine regarding the monopoly of certified advocates (attorneys-at-law) for legal representation in court.

Along with this, self-presentation is allowed in certain cases. The CEOs and other officers of legal entities specifically authorised by their articles of association will have a right to represent those legal entities in administrative court without having the status of a certified advocate (attorney-at-law).

Furthermore, the certificate of an advocate (attorney-at-law) will not be needed for the legal representation in minor tax disputes (for the amount of up to 100 subsistence minimums for employable persons*)

At the same time, it should be borne in mind that according to the Constitution of Ukraine, the mandatory representation by certified advocates (attorneys-at-law) is being implemented in stages:

  • 2017 - the Supreme Court;
  • 2018 - courts of appeal;
  • 2019 - courts of first instance;
  • 2020 - legal representation by certified advocates (attorneys-at law) of  tax authorities.

* As of September 2017, a subsistence minimum for employable persons amounts to UAH 1,684.

** - Photo from Dreamstime.com

Wednesday, August 30, 2017

Novelty 11 - Observance of Pre-Action Procedure

Co-authored by Anton Havryk
This article continues a series of publications on the most striking changes in the new version of the Code of Administrative Procedure of Ukraine for the purposes of tax litigation.

What follows is the overview of the eleventh most significant change, in our opinion,  attributable to the observance of pre-action procedure.

The Bill fully takes into account the recent amendments to the Constitution of Ukraine regarding the observance of pre-action procedure for court disputes.

A complaint will be returned to the plaintiff if he has failed to resort to the mandatory pre-action procedure before going to court.

At the same time, the pre-action procedure set out at present for tax disputes by the Tax Code of Ukraine (Section  56) is hardly to be considered mandatory. The procedure in question is not a prerequisite for filing a complaint claim with a court. A taxpayer may apply to a court irrespective of his previous appeal to the tax authority of a higher level with an administrative complaint.

In the meanwhile, one cannot rule out the  further adoption of amendments to the Tax Code of Ukraine to set out the mandatory pre-action procedure for tax disputes.

* - photo from www.slideshare.net  

Saturday, August 19, 2017

Novelty 10 - New Rules for the Exchange of Procedural Documents

Co-authored by Anton Havryk
This article continues a series of publications on the most striking changes in the new version of the Code of Administrative Procedure of Ukraine for the purposes of tax litigation.

What follows is the overview of the tenths most significant change, in our opinion,  attributable to the new rules for the exchange of procedural documents between litigants.
The overview of the other essential changes is available here: Novelty No 1, Novelty No 2, Novelty No 3, Novelty № 4, Novelty No 5, Novelty No 6, Novelty No 7, Novelty No 8, Novelty No 9.

As already discussed in respect of the other changes, the Bill provides for the new "philosophy" of a trial aimed at the fast and efficient resolution of cases by conducting a thorough pretrial proceeding.  

The new approach requires the exchange of procedural documents to be completed at the stage of a pretrial proceeding. The widespread submission of procedural documents at the stage of a trial which is so common nowadays must not take place in the future.

In addition, the Bill somewhat changes the names of procedural documents and establishes the clear sequence of their submission.
After a plaintiff has filed the complaint with the court, the defendant may submit his response to the complaint (a new name for the current objection to a complaint). The plaintiff can prepare and file a reply to the response of the defendant. In his turn, the defendant may lodge his objections to the reply of the plaintiff.

* Photo from http://fixate.io