The period during which the tax authority may decide to apply administrative seizure of the property of the tax payer

There are times when officials of the Supervisory authority come to the taxpayer for the purpose of conducting a documentary or factual check, but the grounds for conducting such a check for this payer are very doubtful in their legality.

 

In this case, the taxpayer, in accordance with paragraph 81.1 of article 81 of the Tax code of Ukraine (hereinafter – the tax code of Ukraine), has the right to prevent officials of the Supervisory authority from conducting such an audit.

 

If the taxpayer allows a documentary or actual inspection of officials of the Supervisory authority, in this case, it loses the right to further appeal the order to conduct an inspection, and the appeal can only be subject to the consequences of such an inspection in the form of a tax notification-decision adopted by the Supervisory authority.

 

However, it should be noted that the taxpayer's use of such a method of protection as non-admission to the inspection of officials of the controlling authority may have negative consequences for him in the form of administrative seizure of his property by the controlling authority in accordance with article 94 of the tax code of Ukraine.

 

Thus, paragraph 94.1 of article 94 of the tax code of Ukraine provides that the administrative seizure of a taxpayer's property is an exclusive way to ensure that the taxpayer fulfills its obligations as defined by law.

 

The seizure of property may be applied if it turns out that the taxpayer refuses to conduct a documentary or factual audit if there are legal grounds for conducting it, or to allow officials of the Supervisory authority (clause 94.2.3 of clause 94.2 of article 94 of the tax code of Ukraine).

 

In case of the above circumstances, according to clause 94.6 of article 94 of the tax code of Ukraine, the head (his Deputy or authorized person) of the Supervisory authority, makes a decision on the application of seizure of the taxpayer's property.

 

To avoid arbitrariness of authorities p. 94.10, article 94 of the tax code provided by the fuse in the form of a check a court within 96 hours of validity of imposition of arrest on property of the taxpayer in the manner specified, article 283 of the Code of administrative procedure of Ukraine (further - KAS of Ukraine).

So, let's imagine a situation when officials of the Supervisory authority appeared to the taxpayer for the purpose of conducting a documentary or factual check and such a payer, considering such a check illegal, did not allow them to conduct it, one question arises: "for how long the head (his Deputy or authorized person) the Supervisory authority may decide to apply the seizure of the taxpayer's property?".

 

Thus, the legislator provided only for the period during which the head (his Deputy or authorized person) the Supervisory authority makes a decision to seize property that has been temporarily detained in accordance with paragraph 94.7 of article 94 of the tax code of Ukraine since the relevant Protocol was drawn up.

However, tax legislation does not contain norms that would regulate the period within which the tax can make the decision about application of administrative arrest of property of the taxpayer on the grounds, provided PP. 94.2.3 p. 94.2 article 94 of the tax code.

 

Given that the tax legislation does not allow us to provide an answer to this question, we should refer to the law enforcement practice that has developed in administrative proceedings, on the issues of confirmation by the court of the validity of administrative seizure of the taxpayer's property.

 

Thus, the Supreme Court in its Decision of February 13, 2019 in case No. 819/2388/17 formed the following legal position:

"The specifics of the proceedings on the appeal of the revenue and customs authorities to confirm the validity of the administrative seizure of the property of the tax payer are regulated by article 283 of the tax code of Ukraine.

 

Thus, the second part of article 283 of the CAS of Ukraine stipulates that an application is submitted to the court of first instance within 24 hours from the moment of establishing the circumstances that lead to an appeal to the court, according to the General rules of jurisdiction established by this Code.

In this case, according to the first part of article 270 of the CAS of Ukraine, the calculation of the terms established by articles 273-277, 280-283 of this Code is not subject to the rules of parts two to ten of article 120 of this Code.

 

The terms established in cases defined by this article are calculated in calendar days and hours (part two of article 270 of the CAS of Ukraine).

The day of filing a claim or appeal is the day of their receipt in the appropriate court. The deadlines for filing claims and appeals established in cases defined by this article cannot be restored. Claims, appeals filed after the expiration of these terms, the court leaves without consideration (part five of article 270 of the criminal code of Ukraine).

The panel of judges agrees with the courts of previous instances that in this case, the circumstance that determines the appeal of the defendant to the court is the company's refusal to allow officials of the Supervisory authority to conduct a documentary scheduled field inspection, which is confirmed by the relevant act of 26.12.2017.

 

In such circumstances, the deadline for submitting an application to confirm the validity of conditional administrative seizure of the taxpayer's property, according to the second part of article 283 of the tax code of Ukraine, is 27.12.2018.

 

Meanwhile, a statement on the confirmation of a conditional administrative seizure of the taxpayer GU DFS in Ternopil region turned to the only 28.12.2017 at 16:30, that is, with the omission of the term established by part two of article 283 of the code of Ukraine.

 

Thus, taking into account the missed deadline for filing an application and the impossibility of restoring such a period, the panel of judges considers it correct to conclude that the courts of previous instances left the application of the state fiscal service of Ukraine in the Ternopil region to confirm the validity of the conditional administrative seizure of the taxpayer's property without consideration."

 

So, the Supreme Court came to these conclusions:

1) the Supervisory authority has 24 hours from the moment of establishing the circumstances that determine the appeal to the court to appeal to such a court;

2) the reason for the appeal to the court of the controlling authority is the taxpayer's refusal to be allowed to conduct an audit;

3) skipping the 24-hour deadline for applying to the court for confirmation of the validity of the administrative seizure of the taxpayer's property is grounds for leaving such an application without consideration.

 

Also, interesting is the position of the District administrative court of Kyiv set out in the Decision dated 08 April 2019 in case No. 640/5947/19, where the court noted that: "the decision of GU DPP in Kiev from 04.04.2019 about application of administrative arrest of assets, taking into account the opinion of the Supreme Court, as set forth in this Ordinance, does not change the order of calculation of term of appeal to the court."

 

Thus, the court in this case used the above-mentioned position of the Supreme Court, and also clarified that the decision on the application of administrative seizure of the property of the tax payer does not change the procedure for calculating the term of appeal to the court.

 

Therefore, if the taxpayer does not allow officials of the Supervisory authority to check, it should pay attention to the fact that the tax service has only 24 hours from the moment of such non-admission in order to make an appropriate decision on the application of administrative seizure of the taxpayer's property and to apply to the court with an appropriate application to verify the validity of such an arrest, and therefore, if such a period is missed, the court must leave such an application without consideration.