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.

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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

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.

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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

New Code of Administrative Procedure: Top 16 Novelties for Tax Litigation - NOVELTY No 1 - “E-Court”

Co-authored by  Anton Havryk

At this moment, there is a great effort directed at reforming the judicial system of Ukraine in connection with the creation of the new Supreme Court. One of the key stages of the reform is the adoption of the new versions of procedural codes (the Bill of the President of Ukraine No 6232 - http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=61415).

We are delighted to offer a series of publications on the brightest novelties of the Code of Administrative Procedure of Ukraine in the context of tax litigation.

Novelty No  1 - “E-Court”

A gradual transition to the so-called "E-Court" is planned. The philosophy behind the concept the  "E-Court" includes:  

• Filing procedural documents by participants in litigation, including statements of claims, in an electronic format (signed by digital signatures);

• Serving procedural documents on participants in litigation in an electronic format;

• Transiting to the electronic format of a case file. Case files will be circulated among courts of different instances in an electronic format.

For the purposes of the introduction of "E-court", the following is provided at the first stage:  

• Attorneys-at-law (advocates), governmental entities, public and municipal utilities must register their official email addresses in the single information system of the judiciary. The registration remains voluntary for other participants in litigation. After the registration, all court documents will go to the official email addresses of participant in litigation only.  Participants in litigation may also obtain procedural documents in a hard format copy, but only subject to their special request filed with the court.

• A 20% discount will be provided for the payment of court fees accompanying the e-submission of procedural documents. In large-scale tax disputes the 20% discount can be  big enough to stimulate participants in litigation to switch to e-submissions of procedural documents.

  

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