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In practice, there is a position
that the criminal proceedings on tax
evasion cannot be instituted
until the underlying tax assessment becomes due (effective). The proponents of this position refer to para 56.22
of the Tax Code of Ukraine (before
the enactment of the Tax Code of Ukraine, to para 5.2.6.
of the Law of Ukraine "On the Procedure for
Discharging Tax Liabilities to Budgets and State Special
Purpose Funds"). According to these
points of law in case of an appeal is filed
against a tax assessment the tax evasion charges cannot be rested on such a tax
assessments until the end of the appeal procedure, i.e. until the tax
assessment becomes due (effective).
In my
opinion, the position is more than questionable, especially given that:
1. Pursuant to the novelty
incorporated into the Tax Code of Ukraine (para 58.4) a criminal investigation
should precede the issuance of a tax assessment, and not vice versa;
2. The prohibition established by
the specified legal provisions applies to tax evasion charges, not to the
institution of a criminal case;
3. The above rules clearly prescribe
that this prohibition does not extend to the cases where the tax evasion
charges are not only bolstered by a tax assessment, but also by other evidence
collected in accordance with criminal procedure law.
The court practice on the issue
raised is not consistent. In most cases, the courts dealing with the complaints against the initiation of the criminal cases do not adhere to this position. They observe that the above prohibition covers tax evasion
charges, rather than the institution of criminal cases. The decision of the Highest Specialized Court of Ukraine on Civil and Criminal Trials of 7 February 2012 in re Striy Plant Metalist, JSC* seems to be a
classic example of such practice.
Nonetheless, some judges turn out to be the "apologists" of
the given position, especially if at the time of the consideration
of the complaint against the institution of criminal
proceedings an administrative court has already canceled the relevant tax assessment. An example here is the decision of the Highest Specialized Court of Ukraine on Civil and Criminal Trials of 28 April 2011 in re Blits-Trade, Private Enterprise**.
There would be a person, and criminal liability wil be.
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