One of the most controversial innovations brought by the mini tax reform of 2017 is the mechanism of blocking the registration of VAT invoices. This will work from 1 April 2017 in a test mode and from 1 July 2017 in a full mode.
The system of blocked VAT-accounts introduced in 2015 was quite a serious blow to the lucrative business of those providing fraudulent encashments services in Ukraine.
However, the representatives of the “industry” turned out to be smart enough to find a “weak spot” in the system of blocked VAT-accounts and began to exploit it actively.
Despite its advancement, the system of blocked VAT-accounts is absolutely powerless against abuses involving supplies to non-taxable persons.
For example, a non-bona fide taxable person buys on the domestic market or imports a batch of smartphones. Then it resells them to non-taxable third parties and obtain cash or even bank transfer payments in the amount sufficient for recovering the VAT incurred on the purchase of the smartphones. As a matter of fact, the non-bona fide taxable person does not declare output VAT arising from the supply of the smartphones and does not register a VAT invoice.
Consequently, the non-bona fide taxable person retains the input VAT deduction that can be "sold" to those interested in saving on remitting due VAT to the tax authorities. The buyer receives a "set of documents" attesting his entitlement to the input VAT deduction.
Nonetheless, there is a small issue for the parties to the trickery. In most cases, the buyer of the input VAT deduction is not interested in the goods actually sold by the non-bona fide taxable person (in our example - smartphones). So, the "set of documents" for the buyer is produced for the sale of something else: for example, much-favoured "consulting and information services".
In view of the fact that the implementation of the scheme entails the "transformation" of one product to another (in our example, smartphones are transformed into services), the scheme has received the popular name "twist". The very such "twists" are exactly what the blocking mechanism is called to counteract.
How will this work?
The blocking mechanism is as follows:
1) In case of the detection of a "twist", the tax authorities send a document to the taxable person on the suspension of the registration of the tax invoice.
2) The taxable person has the right to submit to the tax authorities his written explanation (with the attachment of the supportive documents) in order to confirm the lawfulness of the registration of the tax invoice.
3) The explanation of the taxable person is considered by a special commission of the State Fiscal Service of Ukraine within 5 business days from the date of the receipt. Based on the results of the consideration, the commission takes a decision on the registration/refusal to register the tax invoice.
4) The taxable person has the right to appeal from the decision of the commission under the administrative and /or judicial procedure.
Conclusions and reservations
The mechanism for blocking the registration of tax invoices is absolutely necessary to counter VAT fraud. At the same time, the blocking mechanism entails significant risks for bona fide taxable persons. The latter risk to fall into disgrace of taxmen endowed with new broad powers.
By and large, much depends on how well statutory instruments determining grounds for suspending / canceling the registration of tax invoices are worked out. The adoption of such instrument is entrusted to the Cabinet of Ministers of Ukraine and the Ministry of Finance of Ukraine.
It is crucially important that grounds for suspending / canceling the registration of tax invoices are formulated with utmost precision and with due regard for the sound balance of interests of the tax authorities and bona fide taxable persons. Given the complexity of the issue and the high dependence of the decisions on the specific circumstances of the case, the task is not simple even for the authentic tax luminaries.
Let us hope for the best!
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