In March 2020, subsection 10 of Chapter XX "Transitional Provisions" of the Tax Code of Ukraine (hereinafter referred to as the Tax Code of Ukraine) was supplemented by clause 52-2, which introduced a moratorium on the conduct of documentary and factual checks for the period from 03/18/2020 to the last calendar day of the month (including ), in which the quarantine ends. As you know, the quarantine was lifted from 24:00 on 06/30/2023 by CMU Resolution No. 651 of 06/27/2023.
However, despite the continuation of the quarantine, starting from February 3, 2021, tax officials began to actively conduct scheduled documentary inspections of business entities. They motivated their actions by the fact that the moratorium on conducting inspections was canceled by the Resolution of the Cabinet of Ministers of Ukraine dated 02.03.2021 No. 89 "On shortening the period of validity of the restriction in the part of the moratorium on conducting certain types of inspections."
However, such actions of the tax authorities were illegal, since the moratorium on the conduct of scheduled documentary inspections for the period of quarantine was directly established by clause 52-2 of subsection 10 of chapter XX "Transitional provisions" of the PC of Ukraine, and no changes were made to it. Based on the content of Clause 2.1 of Article 2 of the Tax Code of Ukraine, changes to the provisions of the Tax Code of Ukraine are carried out exclusively by laws amending the Code, accordingly, the moratorium terms can be changed only by direct amendments to the Tax Code of Ukraine.
The Supreme Court in its rulings dated 04.01.2024 in case No. 420/16150/21, dated 14.12.2023 in case No. 520/20064/21, dated 06.12.2023 in case No. 520/28419/21, dated 06.12.2023 in case No. 520/28419/21, dated October 31, 2023, in case No. 520/9288/21, dated September 21, 2023, in case No. 420/5325/22, came to the conclusion that in the presence of conflicting rules and regulations regarding the moratorium on carrying out inspections contained in the PC of Ukraine and in the resolution of the Cabinet of Ministers of Ukraine - the provisions and rules of the Tax Code of Ukraine are subject to application.
The question of the influence of such procedural violations on the legality of tax notices-decisions, adopted as a result of the corresponding tax audit, has already been decided by the Supreme Court more than once. Yes, in the resolutions dated 12.28.2022 in cases No. 420/22374/21, No. 540/5445/21, No. 160/14248/21, dated 10.28.2022 in case No. 600/1741/21-a, dated 12.10. 2022 in case No. 160/24072/21, dated September 1, 2022 in case No. 640/16093/21, the Supreme Court stated that the inspection was carried out on the basis of Resolution of the Cabinet of Ministers of Ukraine No. 89 (under the conditions of validity of Clause 52-2 of Subsection 10 of Chapter XX "Transitional provisions" of the PC of Ukraine) is illegal and entails consequences in the form of cancellation of tax notices-decisions adopted as a result of such verification.
It is worth noting that before the quarantine was lifted, on March 7, 2022, Law of Ukraine No. 2118-IX, Subsection 10 of Chapter XX "Transitional Provisions" of the Code of Ukraine was supplemented by Clause 69.2, which introduced a new moratorium on tax audits. This moratorium was canceled on December 8, 2023 by Law of Ukraine No. 3453-Ih of November 9, 2023.
Therefore, the moratorium on scheduled documentary inspections was in effect from March 18, 2020 to December 8, 2023.
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Oleksandr Fedorko, Attorney at Dynasty Law & Investment