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

Thursday, August 17, 2017

Novelty 9 - Simplified Proceeding

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 ninth most significant change, in our opinion,  attributable to the introduction of a simplified proceeding.
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.

Courts of first instance, apart from a general proceeding, will consider some cases under a simplified proceeding (the analogue of the currently existing written and shortened proceedings).

In particular, the Bill sets out that tax cases:

  • For the amount below 100 subsistence minimums for employable persons* will be considered under the simplified proceeding only;

  • For the amount from 100 to 500 subsistence minimums for employable persons may be considered under either the simplified or general proceedings at the discretion of the court;

  • For the amount over 500 subsistence minimums for employable persons will necessary be considered under the general proceeding.

The simplified proceeding is characterised by the following:

  • There will be 60 days for the resolution of a case, instead of 90 days available within the scope of the general proceeding;

  • There will be no court hearing conducted at the stage of a pretrial proceeding;

  • By default, there will be no court sessions (hearings) to held at the stage of  trial. Court sessions are possible at the initiative of the court or at the request of at least one of the parties to litigation (if the court finds the request justified);  

  • There will be more concise time-periods for litigants to carry out the exchange of procedural documents.

  • There will be no court debates (providing closing oral pleadings of litigants)  during trial.

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

** - Photo from www.slideshare.net

Wednesday, August 9, 2017

Novelty 8 - Elimination of Two-Stage Cassation Review

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 eighth most significant (of course, in our opinion) change attributable to the removal of double cassation review.
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, the Novelty No 7.

The Bill provides for the liquidation of the Highest Administrative Court of Ukraine (HACU). The cassation review will be performed by the newly created Supreme Court only. There will be no repeated cassation review anymore.
This must put an end to the existing problem of the discrepancy between the HACU’s and the Supreme Court of Ukraine’s jurisprudence in the same tax disputes. A striking example of this problem is court jurisprudence in cases concerned with the recovery of overdue VAT refund. For a long time, there has been a contradiction between the approaches of the HACU and the Supreme Court of Ukraine on the application of the proper legal remedy in such cases.  

* - Photo from http://moygrad.kiev.ua

Friday, July 21, 2017

Novelty 7 - Consideration of "Pilot" Cases by the Supreme Court in the Capacity of the Court of First Instance

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 seventh most significant (of course, in our opinion) change attributable to the consideration of “pilot” cases by the Supreme Court.
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.

The Bill provides an interesting mechanism to ensure the fast unity of the judicial practice.

If there are 10 or more identical cases (quite a likely situation for tax disputes), the court of first instance may transfer one of these cases to the immediate consideration of the Supreme Court acting in the capacity of the court of first instance. Proceedings in the other cases are suspended until the resolution of the "pilot" case by the Supreme Court.  

Following the resolution of the "pilot" case by the Supreme Court, the courts of  first instance restore the proceedings in the suspended cases and decide them in line with the findings made by the Supreme Court.

Thursday, July 20, 2017

Novelty 6 - Judicial Mediation

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 sixth most significant (of course, in our opinion) change attributable to judicial mediation.
The overview of the other essential changes is available here: Novelty No 1, Novelty No 2, Novelty No 3, Novelty № 4, Novelty No 5.
The so-called "judicial mediation" will be introduced at the stage of pretrial proceeding.

In order for the procedure of "judicial mediation" to commence, there must be the consent of both parties to the dispute. The court issues its order on the beginning of the mediation procedure and suspends the proceedings before the mediation is over.

Mediation is conducted by the court by having recourse to joint meetings (two parties are present) or closed meetings (one party only is present). During such meetings the court gives suggestions to the parties on the settlement of the dispute, provides legal advice on the possible resolution of the dispute taking into account the existing evidence and court jurisprudence on similar cases.  

As many as 30 days are set aside for the procedure of "judicial mediation". If within this period of time the parties do not manage to settle the case, the judge will return to the usual procedure of its  consideration.


Tuesday, July 18, 2017

Novelty 5 - Full Reimbursement of Attorney’s Fees

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 fifth  most significant (of course, in our opinion) change attributable to the reimbursement of attorney's fees.
The overview of the other essential changes is available here: Novelty No 1, Novelty No 2, Novelty No 3, Novelty № 4.

The Bill provides for the full imposition of the attorney’s costs of the winning party on the losing party.

The currently existing statutory limit significantly confining the scope of the possible reimbursement of attorney’s fees will be revoked. Instead, the Bill introduces the criterion of “proportionality”. A court may decrease the amount of attorney’s costs payable to the successful party, if these costs are not commensurate with the amount of the lawsuit, the complexity of the case, the volume of legal services provided or other criteria.

* Photo from http://alexius.co

Friday, July 14, 2017

Novelty 4 - Counteracting the Abuse of Procedural Rights

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 fourth most significant (of course, in our opinion) change attributable to counteracting the abuse of procedural rights.
The overview of the other essential changes is available here: Novelty No 1, Novelty No 2, Novelty No 3.

The Bill proposes measures aimed at counteracting the abuse of procedural rights.

The abuse of procedural rights may, for example, include the following: dilatory and obstructionist tactics, filing several complaints (so-called “clones”) or artificial insertion of several claims into one compliant  for the purpose of referring the lawsuit to the “needed” judge or court.

The first and main consequence of revealing the abuse of procedural rights is the refusal to allow the relevant application or petition. Additional adverse effects may encompass the full imposition of the costs of proceedings regardless of the outcome of the case, holding attorneys-at-law (advocates) and officials of governmental agencies disciplinary liable, the application of compulsory measures, such as a fine.  
   
Moreover, the Bill envisages some preventive measures directed against the abuse of procedural rights. For example, to prevent the filing of “cloned” complaints, the Bill sets out a new requirement to the statement of a claim: the plaintiff must confirm in this document that he has not yet filed any analogous complaints with courts.

* Photo from http://abovethelaw.com

Wednesday, July 12, 2017

Novelty 3 - New Approach to Determining Duration of Litigation

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 third most significant (of course, in our opinion) change attributable to new approach to determining the duration of litigation.

The overview of the other essential changes is available here: Novelty No 1, Novelty No 2.

The authors of the Bill propose a new approach to determining the duration of litigation: the periods of time set aside for administering litigation will be longer than now, but their adherence will be strictly monitored.

Hopefully, there will be no widespread situation of today in the future in which a court resorts to written proceeding and refrains from ruling on the case for several months.

The general period of time devoted for litigation at a court of first instance will be 90 days as compared to current one month. Given the increased importance of the new fashion pretrial proceeding, 60 days out of the above 90 days will be attributable to the pretrial proceeding and the remaining 30 days will be ascribable to trial.  

The general period of time set aside for litigation at a court of first appeal and a court of second appeal (cassation) will be 60 days when it comes to appealing from judgements and 30 days when it comes to appealing from procedural rulings. As a matter of reminder, nowadays the period of time set out for litigation at the aforesaid courts amounts to one month and does not depend on the type of the appealed decision.

* Photo from http://briandhunter.org

Thursday, June 15, 2017

Novelty No 2 - Focus on Pretrial Proceeding

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 second most significant (of course, in our opinion) change attributable to shifting emphasis on pretrial proceeding.
The overview of the first most significant change is available here.

It is not a secret that as of today a pretrial proceeding is something along the line of "profanation". During the pretrial proceeding the judges do not bother themselves to  conduct any serious preparatory measures to streamline the further trial. Pretrial hearings are rarely appointed. Consequently, the real work on the case begins at trial. The whole procedure is  thus much delayed and not effective.

The Bill proposes changing the situation radically by adhering to the principle that sounds like common sense: “thorough preparation is key to success”.

All the main procedural actions  are to be conducted before trial. In particular, it is envisaged that the following must be done at the stage of pretrial proceeding:  


  • A pretrial hearing is to be mandatory held (unless the case is subject to a  simplified procedure).

  • Motions and petitions of the litigants are to be resolved, including those related to appointing expert examinations, calling witnesses or collecting evidence. The court will not examine the motions and petitions of litigants at trial.

  • A plaintiff is to modify or adjust the statement of the complaint.  Changing subject or bases of the complaint, and even  increasing or  decreasing the size of the claims will not be allowed at trial.

  • Motions for the judge's recusal are to be resolved.  

  • The exchange of pleadings between litigants is to be carried out.

Hence, the overwhelming majority of procedural actions will be performed at the pretrial stage. What is left to the court at trial is to hear brief oral statements of the parties, examine evidence, conduct court debates, and render a judgement.

* Photo from https://www.allconnect.com