What way of protection to choose and what to dispute?
Suspension of registration of tax invoiceIn accordance with par. No. 201.16. art. 201 of the Tax Code of Ukraine, the registration of a tax invoice can be suspended in the manner determined by the Cabinet of Ministers of Ukraine if such a tax invoice meets the complex of criteria for assessing the degree of risks sufficient to suspend its registration. How the registration of the tax invoice is suspended and what precedes it are indicated in the Resolution of the Cabinet of Ministers of Ukraine of 29.12.2010 No. 1246 (as drafted in the Resolution of the CMU of 26.04 2017 No. 341) . The point 12 of the Resolution determines that in respect of the received tax bill of the SFS in an automated mode, the inspection is carried out, including its compliance with its risk assessment criteria, sufficient for the suspension of the registration in accordance with clause 201.16 of art. 201 of the TCU. The point 17 of the Resolution notes that in case if the tax invoice meets the criteria for assessing the degree of risk sufficient to suspend its registration, a receipt on the suspension of the registration of the tax invoice is formed. The above rules indicate that, based on the results of the automated verification of the tax invoice by the controlling body, the decision is not accepted. There is only a technical informing of the taxpayer that the registration is suspended by forming and sending receipts. Therefore, the object of dispute in the court in this case will be the illegality of the actions of the State Fiscal Service of Ukraine. In fact, the matter regarding the compliance of the tax invoice with the criteria giving the right to the controlling body to suspend its registration question will be submitted, and thereby “temporarily” to deprive the taxpayer to form the tax indicators.
Refusal to register a tax invoiceIf the taxpayer decides not to dispute the actions of the State Fiscal Service of Ukraine to suspend the registration of the tax invoice and he provides the relevant explanations and/or documents, and the supervisory authority will nevertheless decide not to register the tax invoice, there are two ways of appealing against such a decision: in administrative or judicial order. It should be noted that the administrative appeal against the decision of the SFS to refuse to register a tax invoice takes place in the manner approved by the Resolution of the Cabinet of Ministers of Ukraine of 04.07.2017 No. 485. We have already written about the novels of administrative appeal on 18.07.2017. As for the judicial procedure for appealing the decision on the suspension to register a tax invoice, it does not differ from the procedure of appealing of a tax notification-decision. Moreover, taking into account the reasons for the decision to refuse to register a tax invoice, the evidence base will also differ little from the appeal of the tax notification-decision, because, in fact, it will be necessary to prove the legitimacy of the formation of a tax credit in the context of the reality of the economic transaction. Separately, we should pay attention to the fact that, since in this case the actions and decisions of the central executive authority are appealed in the court (the State Fiscal Service of Ukraine is the central executive body – cl. 1 Resolution of the CMU of 21.05.2014 No. 236), then, by virtue of the provisions of art. 24 of the Code of Administrative Proceedings of Ukraine, the case is considered collectively, as a rule, consisting of three judges.
TAX INVOICEREGISTRATION SUSPENSION Explanations and copies of the documents to the SFS Commission Administrative claim to the court For the confirmation of the indicators of the tax invoice For the recognition of the actions as illegal regarding the registration suspension REGISTRATION REFUSAL Complaint to the SFS Commission Claim to the administrative court For the purpose to cancel the decision on the refusal to register a tax invoice Summing up, it can be noted that in the event of the suspension of the registration of the tax invoice, the actions of the State Fiscal Service of Ukraine are contested in the court, and in case of refusal to register a tax invoice, the decision of the State Fiscal Service of Ukraine is appealed in administrative or judicial order. At the moment, the judicial practice on these issues has not yet been developed, so we continue to monitor closely, as well as participate in the formation and development of this practice.