TOP-3 Judgements of New Supreme Court in Tax Disputes

The new Supreme Court is working and tax disputes are no exception here.

Over  the first half of 2018, the new Supreme Court managed to consider 6,900 tax disputes.

Undoubtedly, among such an array of cases there are a lot of important and interesting positions of the new Supreme Court, which just need to be known in order not to lose face while representing a taxpayer before court.

Below is just the "top of the iceberg" which is  TOP-3 most important, in our opinion, judgements of the new Supreme Court rendered from the beginning of 2018.

No 1: the ruling of the investigating judge on the appointment of an inspection is subject to appeal

For a long time, there has been a debate as to whether an investigating judge has the right to appoint a tax inspection at the request of law enforcement agencies, and whether it is possible to challenge a ruling of the investigating judge on the appointment of such an inspection.

The Grand Chamber of the Supreme Court (ruling dated 23 May  2018 in case No. 237/1459/17) made a clear conclusion that it is possible to appeal from rulings of investigating judges on the appointment of inspections.

The Great Chamber did not give a straight answer to the question on whether such inspection were lawful. Actually, this question was not placed before the Grand Chamber. However, the Grand Chamber hinted that such a ruling of the investigating judge is not provided for by the  criminal-procedural legislation. Such a hint in itself indicates the illegality of the investigating judge's ruling on the appointment of an inspection.

Formally, the ruling of the Grand Chamber concerns the appeal of the appointment of a labor inspection, not that of  tax rules. However, this in no way reduces its importance to tax litigation. According to the analysis of the data of the Unified State Register of Court Judgements, the legal position of the Grand Chamber has been already successfully used many times  by the court of appeal to reverse the ruling of the investigating judges on the appointment of tax inspections.

No 2: sham entrepreneurship  of a counterparty

Again, this is practically the "eternal" issue for tax litigation. If the corporate officers of a counterparty have been convicted of sham  entrepreneurship (section 205 of the Criminal Code of Ukraine), is it possible for the taxpayer to retain his input VAT and deductible expenditure on the purchase of goods or services from this counterparty.

In the past, some administrative courts supported a rather rigorous taxpayer-unfavourable approach. According to this approach, the sham entrepreneurship of a counterparty excludes the right of the taxpayer to enjoy input VAT / deductible expenditure in relation to the transactions with this counterparty under any conditions.

Other administrative courts maintained a more taxpayer-favorable "liberal" approach. According to the approach  sham entrepreneurship charges brought against the corporate officers of a counterparty, should not deprive the taxpayer of the right to input VAT and deductible expenditure, if the taxpayer can prove that the underlying transaction has in fact occurred.

The turning point was the end of 2015, when the former Supreme Court of Ukraine in its ruling of  1 December  2015 in the case No  826/15034/14 actually "legitimized" the unfavorable approach.

After the creation of the new Supreme Court, there were some examples of support by the Administrative Court of Cassation of both approaches (for example, the ruling of 27 February 2018 in the case No. 813/3594/17 for the first approach and the ruling of 27 February 2018 in the case No. 813/ 1766/17 for the second approach).

Finally, the Administrative Court of Cassation dared to trouble the Grand Chamber with this "ambiguous" issue.

Attention  here! The Grand Chamber (the ruling of 26 March 2018 in the case No. 826/19939/16) has abandoned the consideration of this issue, noting that it does not make up  "the existence of an exclusive legal problem" and "in each particular case the court must carry out a legal assessment of the actual circumstances of the case ".

Some optimists see in the words of the Grand Chamber that "in each particular case the court must carry out a legal assessment of the actual circumstances of the case " its  support to the position that the taxpayer can keep input VAT and deductible expenditure provided that the true nature of the transaction with the “sham” counterparty has been  confirmed.

No 3: right remedy for recovery of overdue VAT refund

This is an issue of a real "intellectual battle" happening between the former  High Administrative Court of Ukraine and the former Supreme Court of Ukraine. The High Administrative Court of Ukraine was the supporter of a more effective remedy “collection of the overdue VAT refund from the state revenues”  (for example, the ruling of 4 February 2016 in the case No. 806/2256/15).

The Supreme Court of Ukraine adhered to a more moderate position regarding the exclusive role of the tax authorities in providing VAT refund and insisted on the obliging the tax authorities to handing over a document initiating VAT refund to the body of the state treasury (for example, the ruling of 16 September 2015 in the case No. 2а / 0570 / 17001/2012).

In case No  826/7380/15, the Administrative Court of Cassation sided with the High Administrative Court of Ukraine and preliminary recognized “the collection of the overdue VAT refund from the state revenues” as the correct remedy.

Since this position of the Administrative Court of Cassation is at odds with the position of the former  Supreme Court of Ukraine, the Administrative Court of Cassation by its ruling of  26 June 2018 referred the case to the consideration of the Grand Chamber.

As of the day of writing, the Grand Chamber has not yet rendered its judgement on this issue. Hopefully, the Grand Chamber will have enough common sense to agree with the Administrative Court of Cassation’s stance on the correct remedy.

Photo from http://yvu.com.ua

4 Problematic Issues of Unified Tax in the Life of Ukrainian Farmers

Unified tax of the 4th group (formerly known as  fixed agricultural tax) is for compelling reasons selected to be paid by the overwhelming majority of Ukrainian farmers.

Below, we have summarized those major issues that arise while paying this tax.

Problem No 1 - uncertainty for the future

The base of taxation is the official appraisal of land.  In 2018, a new all-Ukrainian official appraisal of agricultural land is being carried out  (in accordance with the resolution of the Cabinet of Ministers of Ukraine dated 7 February  2018 No. 105).

If the new official appraisal of land turns out to be significantly higher than it is of today, some farmers cannot see any economical sense in keeping paying  the unified tax. They may consider switching instead to the general system of taxation, including corporate profit tax.

However, let us not rush to conclusions. We are waiting for the results of the new official appraisal of agricultural lands.

Problem 2 - the impossibility of confirming the status of a unified tax payer in the presence of a meager tax debt

If your company for certain magical reasons is identified as one having a tax debt in a funny amount of several hryvnias as of 1 January, it is very likely that the tax authorities will not confirm your status of a unified tax payer for the new year.

Fortunately, there is court jurisprudence on this issue available in favor of taxpayers. Courts can uphold the following taxpayers’ arguments:

- the presence of a small amount  tax debt does not constitute a ground for the refusal to confirm the status of the unified tax payer (for example, the ruling of the High Administrative Court of Ukraine dated  6 September 2016 in the case No. 821/354/16);

- The existence of a tax debt may be a ground for the refusal to vest a farmer with the initial status of a unified  tax payer, but it cannot be a reason for not confirming his already existent this status (the resolution of the Supreme Court of 8 May 2018 in the case No. 816/1088/17).

Problem 3 - improperly executed lease agreements

To qualify  for the unified tax, it is necessary that the share of agricultural production of the taxpayer is at least 75% of his total production. The tax authorities are trying to maintain that the 75% share of agricultural production must be carried out mandatory on land, the rights to which are properly formalized.

Consequently, if your company’s  land comprises a significant portion of  land plots with no properly formalised rental rights, there is a risk of losing the status of a unified tax payer.

Fortunately, the tax authorities do not do this quite often now. It was much more interesting for them to carry out such inspections at the time when the special VAT regime for agricultural producers was still in force. Then they were trying to deprive farmers of both the  status of the subject of the special VAT regime and the status of a unified tax (fixed agricultural tax) payer at the same time.

There is also taxpayer-favorable  court jurisprudence in this context. The courts share the view that the whole crop of the farmer  must be taken into account for the calculation of the share of agricultural production, irrespective of whether it has been grown on land parcels rights  to which have been properly or improperly executed (for example, the ruling of the High Administrative Court of Ukraine dated 6 September 2016 in case No. 808/7906/13a).

Problem 4 - cultivating hayfields and pastures

It is not uncommon for today that farmers sow grain crops on pastures or hayfields. If you do so, it would be advisable for you to pay for such parcels of land the unified tax as if for  arable land, that is, taking into account the coefficient of 1,756.

Otherwise, there will  is the risk of an additional tax assessment.

A striking example of the additional assessment is the case No. 808/2649/17, in which courts, including the Supreme Court, found for  the tax authorities. In this case the tax authorities, having analyzed the taxpayer’s form SG-29 (СГ-29),  managed to ascertain that the taxpayer had used its hayfields as arable land. As a result, the taxpayer was charged the additional unified tax, taking into account the specified coefficient of 1.756. Moreover, a 25% fine  was imposed on the taxpayer for the underreporting of the unified tax.

* - Photo from http://www.1zoom.me

Tax Component of Bankruptcy

Co-authored by Anton Havryk

Unfortunately, the Tax Code of Ukraine (hereinafter - the “Tax Code”) and the Law of Ukraine "On Renewal of the Debtor’s Solvency or Declaring Its Bankruptcy” (hereinafter - “Bankruptcy Law”) is not a well-tuned duet. There are many practical problems, when it comes to tax aspects of insolvency.

Below is the description of  three most common issues.

I. Initiation of bankruptcy procedure upon an application of the tax authorities

This question is in the first place relevant for taxmen themselves. The transfer of a tax debt from the category "not collected" to the category “being collected in the bankruptcy procedure” reduces the total taxpayers’ tax debt. This, in its turn, has a positive effect on the performance indices of the tax authorities.  

The problem exists, first and foremost, because the Bankruptcy Law (paragraph 2 of section 11) requires submitting a resolution on opening an enforcement proceeding as a prerequisite for the initiation of a bankruptcy procedure. There is also a requirement of the Bankruptcy Law that a three-month time-limit must elapse before the initiation of a bankruptcy proceeding is made starting from the date of the submission of the execution order for its enforcement.

As generally known, the procedure for collecting a tax debt does not entail the receipt of an execution order. For the sake of a tax debt to be collected based on the already rendered court judgement, the tax authorities address directly the bank of the taxpayer with their own collection order.  No resort to to the State Enforcement Service is needed on the part of the tax authorities.

Very fortunately for the tax authorities, courts do them a big favour by holding that in the case of the initiation of  a bankruptcy proceeding at the instance of the tax authorities the submission of a resolution on opening an enforcement proceeding is not  not mandatory.

The resolution of the High Economic Court of Ukraine (hereinafter - the “HECU”) of 17 February 2015 in case No 925/1941/14 is a striking example of such tax authorities-favorable court jurisprudence.  

II.  VAT on selling a bankrupt’s assets in a liquidation procedure

To date, the situation surrounding the VAT treatment on selling assets in a liquidation procedure continues to be controversial.

In particular, the HECU in its resolution dated 16 May 2012 in case No 25/112/10 ruled that during the sale of a bankrupt's assets in the liquidation procedure, the bankrupt incurs no output VAT.

Note that paragraph 1 (4) of section  38 of the Bankruptcy Law expressly provides that from the date of the adoption by the economic court of a ruling on declaring bankruptcy and opening of a liquidation procedure, the bankrupt does not incur any additional obligations (including taxes), except for the costs directly related to the implementation of the liquidation procedure.

At the same  time, the tax authorities support quite an opposite view. They treat the sale of of a bankrupt’s assets in the liquidation procedure as a VAT taxable transaction.

Paragraph 7.3 of section  7 of the Tax Code is a rather strong argument to bolster their position. Under this paragraph, no tax issue can be governed or changed by a  Law (Act) apart from that amending the Tax Code.

The aforesaid paragraph 4 part 1 of section  38 of the Bankruptcy Law is not incorporated into the Tax Code. Consequently, it cannot be considered as one exempting the transactions in question from VAT.

In practice, liquidators usually do not pay VAT when selling the assets of a bankrupt. However, the specified uncertainty has always been the  "Sword of Damocles" hung over the heads of the liquidators. There is always a risk of bringing the liquidators to criminal liability for tax evasion.

In 2015 there was an attempt to solve this problem on the legislative level. The Bill No  3164 dated 22 September 2015 “On Amendments to Section 184 of the Tax Code of Ukraine” was developed. The amendments  were concerned with subparagraph (d) of paragraph 184.1 of the Tax Code. According to the amendments the VAT deregistration  of a taxable person would have occurred not on the basis of a court order on the liquidation of that taxable person, but on the basis of a court order on the recognition of that taxable person a bankrupt.

However, for unclear reasons the Bill has been withdrawn, and the problem remains.

As of today, the work on eliminating the above discrepancy  continues on the legislative level. At present, the Tax and Customs Law Committee on of the Ukrainian Bar Association is working on a new Bill on amendments to the Tax Code.

III. Inclusion of the tax authorities’ claims to a register of creditors

There are three aspects of the problem.

First, is it possible to include to a register of creditors the tax authorities’ claims if the underlying tax liabilities are not due and payable yet?

Most economic courts take an unambiguous position that the tax authorities’ claims supported by not effective tax liabilities (including disputed notices of tax assessment) must not be  included in a register of creditors. The only tax debt which is either a tax liability agreed upon by the taxpayer himself or established by the court can be included in the register of creditors.  In particular, this position is articulated by the High Economic Court of Ukraine in its following resolutions: dated 20 December 2011 in the case No 5015/118/11; dated 8 October 2013 in case No 914/77/13 and dated 1 July 2015 in the  case No 914/1820/14.  

Second, what to do if the liquidation procedure is already over, but the tax liability has not yet become due and payable?

Sometimes, courts nevertheless include to the register of creditors tax liabilities that are not yet due and payable. However, if the court takes a position that a tax liability must become due and payable before being included in the register of creditors, then the liquidation procedure may end and the tax liability may not get to the register of creditors at all. If this is the case, the tax authorities will be able to write off such a tax liability as a  bad tax debt.

Third, a highly contentious question is how to treat the tax authorities’ claims whose underlying tax liabilities become due and payable after the opening of the bankruptcy proceeding.

In particular, this situation arises where  a notice of tax assessment was issued by the tax authorities before the opening of the bankruptcy proceeding. The taxpayer challenged the notice of assessment within the scope of the administrative or court  procedure. The appeal turned out to be unsuccessful for the taxpayer and the underlying tax liability became due and payable, but after the opening of the bankruptcy proceeding.

The question is whether such claim of the tax authorities should be counted as competitive or current insolvency claims?

On the one hand, it seems that such claims should belong to competitive insolvency claims. This conclusion can be drawn from the fact that the claims had arisen (the relevant notice of tax assessment had been issued) before the opening of the insolvency proceedings.

On the other hand, such claims became due and payable after the opening of the insolvency proceeding. Thus, they seem to be viewed as current insolvency claims.

Unfortunately,  there has not been enough court jurisprudence so far to give comprehensive answers to these difficult questions.

In the meanwhile, to say that there is no court jurisprudence at all is to say nothing.

An extremely interesting piece of court jurisprudence in this  context is the resolution of the HECU of 11 July 2012 in the case No 18/85 on the bankruptcy of  Molochna Rivyera, LLC.

In this case the HECU:

- acknowledged the claims of the tax authorities to pay tax liabilities, which became due and payable  after the opening of a bankruptcy proceeding to be competitive insolvency claims; and

- pointed out to the failure of the tax authorities to comply with a deadline set out for submitting competitive insolvency claims (the tax authorities submitted those claims after the underlying tax liabilities became due and payable in the liquidation procedure, rather than within the prescribed deadline in the administration of property procedure).

In lieu of conclusion

In sum,  bankruptcy  does really have a substantial tax component. Even despite the new, much more progressive wording of the Bankruptcy Law that took effect on  18 January 2013, there are still a great many tax problems in the area of bankruptcy.

Photo from  http://bankruptcy-ua.com/news/334