New Code of Administrative Proceeding of Ukraine to Enter into Force

Co-authored by Anton Havryk

The long-lasting story surrounding the adoption of new procedural codes  and the beginning of the work of the new Supreme Court has finally found its end.      

15 December 2017 is going to be the starting point at which the new procedural codes will come into force and the new Supreme Court will start functioning.

We cannot exclude the scenario under which  the formation of the apparatus and material and technical base of the new Supreme Court is not entirely completed until 15 December 2017.  Given this fact, as well as the large balance of the unresolved cases (about 50 thousand), the easy launch of the new Supreme Court will be very unlikely to happen.

As for tax disputes, from 15 December 2017 on they will be dealt with under the new wording of the Code of Administrative Proceedings of Ukraine (CoAP Ukraine). The Highest Administrative Court of Ukraine will cease its activities on 15 December 2017.  The tax disputes undergone the cassation appeal  will be considered by the Administrative Court of Cassation in the capacity of the subdivision of the Supreme Court.

The most painful moment is that the new CoAP of Ukraine does not provide for virtually any transitional provisions. All disputes will be considered under the new rules irrespective of the court in which they are pending, and regardless of whether the proceedings have been or not opened before or after the entry into force of the new CoAP of Ukraine.  

The exception is set forth only for already filed applications on the review of court judgements by the previous Supreme Court of Ukraine on the grounds of ambiguous application of the rules of law and inconsistency of the contested judgment with the opinion of the Supreme Court of Ukraine.

Such applications will be considered by the Administrative Court of Cassation under the rules of the old version of the CoAP of Ukraine.

By the way, some time ago we analyzed then draft of the CoAP of Ukraine and published our brief descriptions of the most striking changes having bearing on tax litigation. Undoubtedly, the final version of the new CoAP of Ukraine and its draft are different. However, in their majority the novelties described by us have not lost their relevance as of today.

If interested, the review of the novelties is available  at following links: 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, Novelty No 10, Novelty No 11, Novelty No 12, Novelty No 13, Novelty No 14,  Novelty No 15  and Novelty 16 .   

Photo from http://pvo.com.ua/

Novelty 16 - New Procedure for Filing Appeals

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 sixteenth most significant change, in our opinion,  attributable to the changed procedure for filing appeals against the judgements of courts of first instance.

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, Novelty No 10, Novelty No 11, Novelty No 12, Novelty No 13, Novelty No 14, and  Novelty No 15.   

There are two key changes anticipated.

Firstly, appeals will be filed directly with courts of appeal, not through courts of first instance, as it happens now.

Secondly, time limits for filing appeals are expected to be elongated. Appeals against judgements on the merits of the case can be lodged within 30 days (against today's 10 days), and appeals against court orders (rulings) can be lodged within 15 days (against today's 5 days).

* Photo from http://motortransportsolicitor.co.uk

Novelty 15 - Revised Court 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 fifteenth most significant change, in our opinion,  attributable to revised amounts of court fees.

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, Novelty No 10, Novelty No 11, Novelty No 12, Novelty No 13, Novelty No 14.  

Firstly, a long-awaited change is planned which is the introduction of a threshold for court fees payable on filing complaints of a pecuniary nature with courts of first instance by legal entities and governmental agencies. The threshold will be fixed at a fairly high level of 350 subsistence minimums for employable persons.

 

Secondly, the  rates of court fees expressed as the percentage of the amount of a complaint will somewhat increase. Complaints of a pecuniary  nature submitted by legal entities and governmental agencies will attract a 2% court fee as against a 1.5% court fee in existence as of now. The amount of a court fee for lodging an appeal with a court of appeal will be 150% of the amount of the court fee paid during the filing of the complaint with the court of first instance (as against 110% as of today), and a court fee for filing an appeal with the court of cassation will be 200% as against 120% as of today.  

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

** - Photo from http://www.yaplakal.com

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.

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, Novelty No 10, Novelty No 11, Novelty No 12, Novelty No 13.  

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

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.

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, Novelty No 10, Novelty No 11, Novelty No 12.  

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.

* Photo from https://openclipart.org

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 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, Novelty No 10, Novelty No 11.

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