Business Ombudsman as Additional Argument in Tax Disputes
How and When You Can Apply to Business Ombudsman?
We got used to the fact that the administrative consideration of the tax disputes is carried out by the head or commission of the controlling body and, as a rule, does not lead to positive results.
At the end of 2016, the Ministry of Finance of Ukraine amended the Order No. 916 of 21.10.2015 “On approval of the order of registration and filing of complaints by the taxpayers and their consideration by the regulatory authorities”.
After adopting these changes, a fundamentally new mechanism of administrative appeal against the decisions of tax authorities has appeared.
The novels were: the consideration of complaints in open and closed sessions, as well as the involvement of an authorized representative of the Council of Business Ombudsman.
It should be reminded that the Council of Business Ombudsman was established in Ukraine on the basis of the Resolution of the Cabinet of Ministers of Ukraine No. 691 of 26.11.2014 and it is a permanent advisory body of the Cabinet of Ministers of Ukraine.
Among other things, the Council of the Business Ombudsman was established with the purpose to preventing violations of the legitimate interests of business entities.
One of the main tasks of the Council of Business Ombudsman is the adoption and consideration of the complaints from business entities on the decisions, actions or omissions, of state authorities and local self-government bodies, as well as their officials.
Certainly, the Council of Business Ombudsman does not take decisions on the complaint, but using its influence and authority, it develops and give recommendations to public authorities (whose decisions or actions are appealed) for improving and optimization of the procedures, as well as the way which they exercise their powers. In addition, the Council of Business Ombudsman appeals to these bodies with the requests for taking measures to implement the recommendations of the Council.
The requirements for the complaints, the procedure for their submission and consideration are established by the Rules of the Council of the Business Ombudsman, which is submitted by the Business Ombudsman and approved by the Supervisory Board. The Council Regulation is available on its official website.
The submission of the complaint to the Council of Business Ombudsman and the involvement of its representatives in the consideration of the complaint against the actions or decisions of the tax authority have their own nuances.
First of all, it should be noted that filing of the complaint can only take place if the complainant has used at least one instance of administrative appeal. That is, when appealing against a tax notice-decision, the involvement of the representative of the Council of Business Ombudsman may take place when considering a complaint in the State Fiscal Service.
In addition, there is a deadline for filing a complaint, which is one year from the moment of possible unscrupulous (unauthorized) behavior of the supervisory authority.
Three ways of filing a complaint are established by the regulation: 1) through the electronic system for filing complaints on the site:
https://boi.org.ua, 2) by sending a complaint to the e-mail address of the Council indicated on the official website; 3) in writing, directly to the office of the business ombudsman.
The languages are defined separately in which the complaint can be drawn up. They are: Ukrainian, English or Russian.
The complaint is drawn up according to the template posted on the website of the Council, and it must contain all the information that is required in this template.
The complaint must be considered, and the person who filed the complaint must be sent a response within three months from the date when the business ombudsman began its consideration. In some cases, the term can be extended by the business ombudsman.
If the circumstances of the case allow, the business ombudsman actually acts as a mediator, and makes efforts to help the parties reach a peaceful settlement of the issues that are the subject of the dispute.
If it was not possible to settle the dispute, the business ombudsman takes one of three decisions:
- to recognize the complaint as justified, or substantially justified, and give recommendations to the relevant state authority, local government or business entity that is in the sphere of their management, on the ways of responding to unscrupulous behavior that is the subject of consideration;
- to submit a complaint to the relevant state authority or local government body with a request to conduct additional consideration of the case;
- to reject the complaint as unreasonable or largely unreasonable.
As we can see, the business ombudsman can, though indirectly, influence the conscientiousness of the consideration of complaints by the controlling bodies and the adoption of the informed and balanced decision by them. And although the decisions and recommendations of the business ombudsman are not final and unconditional, however, the experts at the Finance Business Service advise considering the possibility of applying to the business ombudsman and involving the representative of the Council of the Business Ombudsman on considering the complaint in the administrative order.
