Mr. Ternovy’s Procedural Trick ~ U-Tax Blog

Wednesday, December 2, 2015

Mr. Ternovy’s Procedural Trick



At one of tax-related events I had the honor to meet Mr. Ruslan Ternovy, a partner with “Invicta”, Advocacy Union (http://aoinvicta.com.ua).

Ruslan shared, in my opinion,very interesting scheme aimed at delaying the consideration of tax disputes by a court of cassation.

The scheme enables prolonging the cassation proceedings by the period of time between the completion of the appeal consideration in respect of a claim brought against a tax assessment notice and the issuance of the tax demand notice. Since the tax authorities do not often hurry to  send tax demand notices, it is possible to delay the consideration of the case by the court of cassation for several months or even years.

Why may such a delay be sensible for the taxpayer is a good question to answer. The delay may well make sense when your legal position in the case is, to put it mildly, quite modest, and you have almost no chance to win the case at the Highest Administrative Court of Ukraine (hereinafter – the “HACU”).

By applying Mr. Ternovy’s scheme, you can put off the enforcement of the tax debt for a certain period of time which is a great relief for the taxpayer.

How does the scheme work?

The first thing to be done by the taxpayer for the scheme to apply is to ensure the non-appearance of his representatives at the court hearings held by the court of appeal. This step is essential for the further renewal of a time limit for submitting an appeal to the court of cassation. Without such a renewal the scheme is merely impossible altogether.

After the resolution of the case by the court of appeal not in your favor, you do not obtain the judgment of this court and do not hurry to submit an appeal to the court of cassation.

You would rather expect a tax demand notice to be served on you by the tax authorities.
After the receipt of the tax demand notice you:

1. Bring a legal action aimed at the cancellation of the tax demand notice. Mr. Ternovy suggests discharging an insignificant portion of the tax debt, so as to create certain grounds for the challenge. Thus, the actual amount of the tax debt and the amount of the tax debt specified in the tax demand notice vary. Accordingly, you may try to justify the legal action by the wrong amount of the tax debt indicated in the tax demand notice.

2. Submit an appeal to the court of cassation accompanied by a request to renew an expired time limit for the above appeal. The renewal of the expired deadline can be justified by the failure of the court of appeal to send its judgement to the taxpayer. It is not a rare occasion that the courts of appeals fail to send their judgements to the litigants. However, they must do so in accordance with the requirements of para 4 of Section 205 and para 3 of Section 167 of the Code of Administrative Procedure of Ukraine (hereinafter – the "CAP of Ukraine"). Those rules directly bind the courts of appeals to forward their judgements to litigants whose representatives were not present at the court hearings. That is why, as mentioned above, the non-appearance of the taxpayer’s representatives at the court hearings held by the court of appeal is critical.

The HACU usually renews a time limit for filing an appeal to it in such situations even if the contested judgement of the court of appeal dates back a few years. See, for example, the HACU’s judgement in the case brought by an individual entrepreneur against the Belotserkivska State Tax Inspection (http://www.reyestr.court.gov.ua/Review/38442474). In the present case the HACU renewed the time limit for an appeal to the court of cassation due to the failure of the court of appeal to forward its judgement to the taxpayer over more than 1,5 years after the announcement of its introductory and resolution parts.

3. Following the submission of the appeal to the HACU, you ask the court of first instance to postpone the consideration of the case brought in respect of the tax demand notice in view of the impossibility of the resolution of this case before the resolution of the appeal filed with the HACU (para 1 (3) of Section 156 of the CAP of Ukraine). The court of the first instance postpones the proceedings.

Benefits

Here are some thoughts on the actual outcome of the operation of the scheme. As stated earlier, the application of scheme may delay the enforcement of the tax debt. Let me expand a little bit on this point.

Neither challenging the tax demand notice, nor brining the appeal to the court of cassation creates a direct obstacle to the further enforcement of the tax debt on its own. Yet, those court proceedings can be effectively leveraged by the taxpayer to counteract the tax authorities’ attempts to get the tax debt collected.

This is a statutory procedure that for getting a tax debt collected the tax authorities should obtain a court order allowing them to do so. Due to the existence of the above proceedings, the taxpayer may well request the court to decline to issue the above order on the grounds that there is still an unresolved dispute as to a point of law (para 5 (2) of Section 183-3 of the CAP of  Ukraine).

Faced with the decline to issue the above court order, the tax authorities can resort to the general court procedures and file a legal action seeking a court judgment sanctioning the collection of the tax debt. However, even in this situation the taxpayer is not doomed. He may well ask the court to postpone the consideration of this case before the completion of the case brought against the tax demand notice (para 1 (3) of Section 156 of the CAP of Ukraine).

Instead of conclusion

In sum, the scheme appears to be an extremely interesting and promising course of action. However, I must confess that it seems to be ideally suited just for small troubled taxpayers that are not seriously concerned with a tax lien and other "pleasant" effects of the existence of the tax debt. If you are a large taxpayer involved in far-reaching economic activities, it is best to think a hundred times before implementing the scheme in practice.

* Photo from http://in.kvs.org.ua

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