Appeal from the claim for a lump sum payment on compulsory state social insurance (EUB)

The Complainant received a letter from the controlling body with a request for payment of debt (arrears) in accordance with the Law of Ukraine "On the collection and accounting of a single contribution to the obligatory state social insurance".

The Requirement stated:

• on the debt of the payer of the single contribution for the payment of the single contribution, including arrears, which the supervisory authority requires payment in accordance with Art. 25 of the Law of Ukraine "On the collection and accounting of a single contribution to the obligatory state social insurance" and on the basis of the information system of the body of revenues and fees;
• that the appeal of the claim for payment of arrears by the payer of the single contribution may be made to the body of revenues and fees of the highest level or to the court within 10 calendar days following the date of receipt of this claim, in the manner prescribed by Part 4 of Article 25 of the Law of Ukraine "On the collection and accounting of a single contribution to the obligatory state social insurance";
• that the amounts specified in the request are payable within 10 calendar days from the date of receipt of this request to the specified accounts of the body of revenues and fees, opened in the relevant body of the Treasury ...;
• that in case of non-payment of the amount of debt specified in paragraph 1 of the claim, this claim is transferred to the body of the state executive service or to the Treasury for enforcement within the period specified by the Law of Ukraine "On Enforcement Proceedings".

According to the Complainant, the controlling body incorrectly or not at all established the circumstances:

1. The Complainant has the status of a natural person - entrepreneur according to the Law of Ukraine "On State Registration of Legal Entities and Individual Entrepreneurs" as a business entity that has chosen a simplified taxation system in accordance with the Decree of the President of Ukraine of July 3, 1998 № 727/98 "On the simplified system of taxation, accounting and reporting of small businesses", Section IV of the Decree of the Cabinet of Ministers of Ukraine of December 26, 1992 № 13-92 "On personal income tax", which calculates, calculates and pays a single contribution in accordance with the Law Of Ukraine "On the collection and accounting of a single contribution to the obligatory state social insurance" from the date of its entry into force, ie from January 1, 2011.
2. Registration of the Complainant as an insured by the territorial body of the Pension Fund, which has acquired the status of a payer of insurance premiums with sending the insured a notice of registration of the insured as a payer of insurance premiums:
   • no later than the next working day from the date of receipt of information from the registration card provided by the state registrar in accordance with the Law of Ukraine "On State Registration of Legal Entities and Individual Entrepreneurs" as a natural person - entrepreneur specified in paragraphs 1-4 of Article 14 of the Law of Ukraine compulsory state pension insurance ”, which is covered by the Law of Ukraine“ On State Registration of Legal Entities and Individual Entrepreneurs ”or
   • no later than the next working day from the date of receipt from the Complainant of the relevant application of the person specified in paragraphs 1-5 of Article 14 of the Law of Ukraine "On Compulsory State Pension Insurance", which is not covered by the Law of Ukraine "On State Registration of Legal Entities and Individuals" entrepreneurs ";
3. The Complainant has the status of a payer of insurance premiums for compulsory state pension insurance compulsory state social insurance in case of unemployment, compulsory state social insurance in connection with temporary disability and expenses caused by burial, compulsory state from an accident at work and an occupational disease that caused disability, the re-registration of which is not carried out on the verification of the payer of insurance premiums in the manner prescribed by the Pension Fund in conjunction with the central executive body that ensures the formation of public finance policy. language state social insurance, to be considered by the payer of the single contribution in accordance with the Law of Ukraine "On the collection and accounting of the single contribution to the obligatory state social insurance".
4. Registration of the Complainant by the payer of the single contribution by the controlling body by entering information into the register of insurers to which the Law № 755 applies on the basis of confirmed data sent (issued) by an extract from the Unified State Register.
5. Registration of the Complainant by the payer of the single contribution by the controlling body by entering information into the register of insurers which is not covered by Law № 755 on the basis of confirmed data of the sent (served) notice of his registration on the form № 2-ССВ registration of the single contribution payer on the form № 1-SSC.
6. The Complainant has the amount of arrears (debt) for the payment of a single contribution to the obligatory state social insurance (hereinafter - SSC).

LegalHelp The Complainant does not agree with the decision of the supervisory authority to collect arrears (debt) from the Complainant for the payment of SSC, considers that the supervisory authority incorrectly determined the amount of arrears, contrary to the law on compulsory state social insurance or beyond its competence established by law and reasonable their disagreement with reference to the law, in particular:

The Unified State Register, in accordance with Article 7 of the Law of Ukraine "On State Registration of Legal Entities, Individuals - Entrepreneurs and Public Associations" is created to provide state bodies with reliable information about individuals - entrepreneurs from the Unified State Register (paragraph 1 h). .1). … Is conducted… with the use of software… (paragraph 1 part 1)… which should provide: control over the completeness of making entries in the Unified State Register and registration actions (paragraph 5 part 3); storage of information on… natural persons - entrepreneurs… termination of entrepreneurial activity of a natural person - entrepreneur (item 10 part 3).

According to Art. 11 of the Law of Ukraine "On State Registration of Legal Entities, Individuals - Entrepreneurs and Public Associations", the information contained in the Unified State Register is open and publicly available ч (Part 1). they are provided in the form of: free access through the portal of electronic services to information from the Unified State Register, which is relevant at the time of the request п (item 1 part 2); publication of public information from the Unified State Register in the form of open data in accordance with the Law of Ukraine "On Access to Public Information" (paragraph 2, part 2); documents in paper and electronic form contained in the registration file (item 4 part 2); State bodies… and their officials receive information from the Unified State Register free of charge in order to exercise their powers defined by law, exclusively in electronic form through the portal of electronic services ч (Part 7).

According to Art. 13 of the Law of Ukraine "On State Registration of Legal Entities, Individuals - Entrepreneurs and Public Associations", the Central Executive Body, which implements state tax policy and state policy on administration of a single contribution to compulsory state social insurance, provides transfer to the Unified State Register such information:

• date and number of the record of registration as a payer of taxes and fees, name and identification code of the state fiscal service body in which… natural person - entrepreneur is registered - on the day of receipt of information on… state registration of natural person - entrepreneur, cancellation of state registration of their termination, as well as on the day of registration by the body of the state fiscal service - in case of change of their location (paragraph 4 part 6);
• date of registration as a payer of the single contribution to the obligatory state social insurance, name and identification code of the state fiscal service body in which… the natural person - entrepreneur is registered, registration number of the payer of the single contribution to the obligatory state social insurance - in the day of receipt of information on the state registration of a natural person - entrepreneur, cancellation of state registration of their termination, as well as the day of registration by the state fiscal service - in case of change of their location (paragraph 5 part 6);
• occupational risk class of the payer of the single contribution to the obligatory state social insurance by the main type of its economic activity - on the day of receiving information on… state registration of a natural person - entrepreneur, cancellation of state registration of their termination, and in case of change of occupational risk class single contribution to the obligatory state social insurance (paragraph 6 part 6);

For state registration, in accordance with Art. 18 of the Law of Ukraine "On State Registration of Legal Entities, Individuals - Entrepreneurs and Public Associations", the following documents are submitted: application for state registration of a natural person by an entrepreneur (item 1 part 1)… inclusion of information on a natural person - entrepreneur registered before 1 July 2004, information about which is not contained in the Unified State Register, an application for state registration of the inclusion of information about a natural person - entrepreneur in the Unified State Register (Part 2).

With regard to the Complainant, before July 1, 2004 there was a state registration (re-registration) of a business entity - a natural person, which is not identical to the state registration of a natural person - entrepreneur within the meaning of the Law of Ukraine "On State Registration of Legal Entities, Individual Entrepreneurs and Public Associations".

The complainant did not carry out business activities, did not hire employees, did not receive income from such activities, which is confirmed by (empty) reporting to the STI.

The taxpayer's accounting file provided for review in the STI does not contain a list (description) of documents when taking it for tax registration, documents submitted by the taxpayer or received in relation to the taxpayer from state registration, statistics, other government agencies, ministries, central executive bodies. authorities and from banking institutions to the bodies of the state tax service during the period of activity of the taxpayer and in connection with its liquidation, as provided by the Instruction on the procedure for accounting of taxpayers. It does not contain information on the reconciliation on the 1st day of each month of the Register of Individuals with the data of the relevant state registration authorities and statistical authorities with the mandatory preparation of acts of reconciliations and these acts of reconciliations. That is, the complainant's taxpayer's record does not contain its administrative part and any information about being in the archive or elsewhere (possibly lost).

The complainant did not submit to the state registrar applications for state registration of a natural person as an entrepreneur or for inclusion of information on a natural person - entrepreneur registered before July 1, 2004, information about which is not contained in the Unified State Register. He did not acquire the status of a natural person - entrepreneur registered in accordance with the Law of Ukraine “On State Registration of Legal Entities, Individual Entrepreneurs and Public Associations”. Simplified taxation system in accordance with the Decree of the President of Ukraine of July 3, 1998 № 727/98 "On the simplified system of taxation, accounting and reporting of small businesses", Section IV of the Decree of the Cabinet of Ministers of Ukraine of December 26, 1992 № 13-92 personal income tax ", which calculates, calculates and pays a single contribution in accordance with the Law of Ukraine" On collection and accounting of a single contribution to the obligatory state social insurance "from the date of its entry into force, ie from January 1, 2011 as an individual - Entrepreneur, according to the Law of Ukraine "On State Registration of Legal Entities and Individual Entrepreneurs" - did not choose.

The Unified State Register does not contain information on the state registration of the Complainant by an individual entrepreneur, main and other activities, occupational risk class of the single contribution payer for compulsory state social insurance by the main type of his economic activity and registration by the taxpayer or contributions, etc.

Bodies of the state tax service, in violation of regulations 7.1. Instructions on the procedure for accounting of taxpayers, approved by the order of the State Tax Administration of Ukraine №80 from 19.02.98, did not make changes and additions to the district level of the Unified Data Bank on taxpayers of legal entities and the Register of Individuals based on information from state registration authorities.

In accordance with Article 15 of the Law of Ukraine "On Compulsory State Pension Insurance", the Notification of registration of the insured as a payer of insurance premiums is sent to the insured the next working day from the date of registration (Part 5). Insured persons acquire the status of payers of insurance contributions to the Pension Fund from the date of their registration by the territorial body of the Pension Fund, and persons specified in part one of Article 12 of this Law - from the date of entry into force of the agreement on their voluntary participation (Part 3). Registration in the Pension Fund of insurers referred to in Article 14 of this Law shall be carried out in the following order (paragraph 1 part 4): for (natural persons - entrepreneurs specified in paragraphs 1-4 of Article 14 of this Law, to which the action applies Of the Law of Ukraine "On State Registration of Legal Entities and Individual Entrepreneurs", - on the basis of information from the registration card provided by the state registrar in accordance with the Law of Ukraine "On State Registration of Legal Entities and Individual Entrepreneurs", no later than the next working day receipt of the specified information by territorial bodies of the Pension fund (paragraph 2 part 4); for insured persons specified in paragraphs 1-5 of Article 14 of this Law, which are not covered by the Law of Ukraine "On State Registration of Legal Entities and Individual Entrepreneurs" - in the manner prescribed by the Board of the Pension Fund, no later than the next working day receiving a relevant application from them (paragraph 3 part 4).

The Complainant did not receive any notifications from the bodies of the Pension Fund as to the effect of the Law of Ukraine "On State Registration of Legal Entities and Individual Entrepreneurs" or to the effect that this Law does not apply to the Complainant's statements in connection with the contract. about voluntary participation.

In accordance with paragraph 3 of Section VIII "Final and Transitional Provisions" of the Law of Ukraine "On Collection and Accounting of the Single Contribution for Compulsory State Social Insurance", from the date of entry into force of this Law payers of insurance contributions for compulsory state pension insurance, compulsory state social insurance in case of unemployment, compulsory state social insurance in connection with temporary disability and burial expenses, compulsory state social insurance against accidents at work and occupational diseases that caused disability are considered payers of the single contribution.

Payers of insurance premiums, in accordance with Article 15 of the Law of Ukraine "On Compulsory State Pension Insurance": to the solidarity system are insured persons referred to in Article 14 of this Law, and insured persons specified in part one of Article 12 of this Law (Part 1 ) and to the accumulative pension insurance system there are insured persons specified in paragraphs 1-6, 10-13 of Article 11 and part one of Article 12 of this Law (Part 2).

The complainant is not a natural person-entrepreneur and one who used the work of individuals, so he is not an employer and, accordingly, an insured within the meaning of paragraph 1 part 1 of Article 14 of the Law of Ukraine "On Compulsory State Pension Insurance".

The complainant, the right to voluntary participation in the system of compulsory state pension insurance, according to the Law of Ukraine "On collection and accounting of a single contribution to compulsory state social insurance" did not use, did not enter into agreements on voluntary participation, voluntary participation in the solidarity system or in the accumulative or simultaneously in both systems in accordance with the contract did not take. Therefore, the insured person specified in Part 1 of Art. 12 of the Law of Ukraine "On Compulsory State Pension Insurance" - is not.

Therefore, the Complainant is not an insured under Article 14 and an insured person under part one of Article 12, respectively - is not a payer of insurance contributions to the solidarity system as defined in Part 1 of Article 15, but is only a payer to the accumulative pension insurance system in accordance with h .2 Article 15, as a person who is subject to compulsory state pension insurance under the provisions of paragraph 1 of Article 11 of the Law of Ukraine "On Compulsory State Pension Insurance".

In accordance with the second paragraph of paragraph 3 of Section VIII "Final and Transitional Provisions" of the Law of Ukraine "On the collection and accounting of a single contribution to the obligatory state social insurance" as amended by Law № 5462-VI of 16.10.2012; with changes made in accordance with the Law № 406-VII of 04.07.2013, re-registration of payers of insurance premiums and insured persons is not carried out. The Pension Fund together with the funds of the obligatory state social insurance and the central body of executive power, which ensures the formation and implementation of the state tax and customs policy, carries out the reconciliation of insurance premiums in accordance with the procedure established by the Pension Fund together with the central body of executive power. financial policy, in coordination with the funds of compulsory state social insurance.

Resolution of the Board of the Pension Fund of Ukraine "On approval of the Procedure for verification of payers of insurance premiums for compulsory state social insurance" від 27-1 dated 23.11.2010 registered in the Ministry of Justice of Ukraine on December 10, 2010 under N 1244/18539 decided: To approve the Procedure for reconciliation of payers of insurance premiums for compulsory state social insurance attached (hereinafter - the Procedure) (item 1) and by December 31, 2010 to reconcile payers of insurance contributions to the Pension Fund of Ukraine and funds of compulsory state social insurance (item 2).

The Procedure stipulates that: this Procedure is developed in accordance with the Laws of Ukraine "On Collection and Accounting of the Single Contribution for Compulsory State Social Insurance" (2464-17) (hereinafter - the Law), "On State Registration of Legal Entities and Individual Entrepreneurs" (755-15) and in order to align the data on legal entities and individuals who are registered with the Pension Fund of Ukraine and the funds of compulsory state social insurance as payers of insurance premiums for compulsory state social insurance (hereinafter - the insurance contributions) (p.1). The Pension Fund of Ukraine provides for the creation of a database of the register of insurers of the State Register of Compulsory State Social Insurance, based on information systems in which the Pension Fund of Ukraine is registered by comparison with fund databases, the State Tax Administration database and mutual exchange between the State Committee of Ukraine. issues of regulatory policy and entrepreneurship and the Pension Fund of Ukraine with information from registration cards when performing registration actions provided by the Law of Ukraine "On State Registration of Legal Entities and Individual Entrepreneurs" (paragraph 5).

The complainant, provided by the Law of Ukraine "On State Registration of Legal Entities and Individual Entrepreneurs", did not perform registration actions, there is no information from registration cards when performing such actions. The Pension Fund of Ukraine did not ensure the creation of a database of the register of insurers of the State Register of Compulsory State Social Insurance in order to reconcile data on the Complainant as registered with the Pension Fund of Ukraine and funds of compulsory state social insurance as a payer insurance premiums for compulsory state social insurance.

Order of the Ministry of Finance of Ukraine №1162 of 24.11.2014, registered in the Ministry of Justice of Ukraine on 03.12.2014. for №1553 / 26330, "On approval of the Procedure for registration of single contribution payers for compulsory state social insurance and Regulations on the register of insured persons" (hereinafter - IFI Order 1162) approved the Procedure for registration of single contribution payers for compulsory state social insurance (hereinafter - accounting of SSC payers) (item 1) and the Regulation on the register of insurers (item 2).

In accordance with the Procedure for Registration of SSC Payers, the registration of single contribution payers is carried out by the supervisory body by entering the relevant information into the register of insurers (paragraph 4 of Section I). Registration of single contribution payers covered by Law № 755 is carried out by the supervisory authority at their location or place of residence on the basis of registration card information provided by the state registrar in accordance with Law № 755 on the day of receipt of such information by the supervisory authority (p. 1 of Section II). Information from the registration card provided by the state registrar, the controlling body shall be entered into the register of insurers (paragraph 1, item 2 of Section II). The date of registration as a payer of the single contribution is the date of entry by the controlling body of an entry regarding such payer in the register of insurers (paragraph 2, item 2 of Section II). Data on registration of single contribution payers by way of information interaction shall be transmitted to the state registrar on the day of their registration at the location or place of residence, indicating: date of registration, name and USREOU code of the controlling body in which such payer is registered, registration number of the single contribution payer (item 3 of Section II). Registration of осіб natural persons-entrepreneurs, information on which is contained in the Unified State Register, as payers of the single contribution is confirmed by an extract from the Unified State Register, which is sent (issued) to these… natural persons-entrepreneurs in the manner prescribed by Law № 755. 4 of Section II).

The complainant was not sent (not issued) an extract from the Unified State Register to confirm the registration of a natural person - entrepreneur to whom the Law № 755 applies, information on which is contained in the Unified State Register as a single contribution payer.

According to the Procedure for registration of SSC payers, registration of single contribution payers who are not covered by Law № 755 is carried out by the controlling body at the location or place of residence on the day of receipt of the application for registration of single contribution payer on form № 1-SSC in accordance with Annex 1… (paragraph 1 of Section III). Payers of the single contribution, which are not covered by the Law № 755, are sent (handed over) free of charge by the controlling body on the next working day from the date of registration on the form № 2-SSC in accordance with Annex 2 to this Procedure (p. 3 of Section III).

The complainant did not apply for registration of the payer of the single contribution on the form № 1-SSC. The complainant, as such, who is not covered by Law № 755, was not sent (not served) a notice of his registration in the form № 2-SSC.

In accordance with paragraph 5, part 1 of Article 14 of the Law of Ukraine "On collection and accounting of a single contribution to the obligatory state social insurance", the bodies of revenues and fees are obliged to control the accuracy of information submitted to the register of insurers of the State Register.

Order IFI1162 regulates: the State Fiscal Service of Ukraine (IO Bilous): within three months from the date of entry into force of this order to conduct an inventory of the register of insurers, during which to establish: single contribution payers who have lost the status of insured; single contribution payers for whom there are two or more entries in the register under one tax number; single contribution payers who are not accounted for by numbers from the Unified State Register of Enterprises and Organizations of Ukraine or the State Register of Individuals - Taxpayers (item 1, item 7); based on the results of the inventory to ensure unambiguous identification and uniform registration of policyholders or to exclude persons who have lost the status of policyholders or are not identified, provided there is no debt (item 1 item 7);

The register of insurers must include the last name, first name, patronymic of individuals - entrepreneurs and individuals who use hired labor and economic activities, including the main, as provided for in paragraph 2 and paragraph 5 of Part 2 of Article .19 of the Law of Ukraine "On the collection and accounting of a single contribution to the obligatory state social insurance" information.

Unjustifiably entered in the register of insurers Complainant, who is not a natural person - entrepreneur and natural person who uses hired labor and who has no debt, in the course of a proper inventory, should be identified as not having (lost) the status of insured and the results of the inventory had to be excluded from the register of policyholders.

Therefore, the Complainant is not a single contribution payer within the meaning of the Law of Ukraine “On Collection and Accounting of a Single Contribution for Compulsory State Social Insurance”, and the Register of Insurers contains inaccurate data on the date of registration of a single contribution payer and Single Contribution Payer Registration Number. The complainant has no arrears of payment of a single contribution, and therefore provided for in paragraph 4, part 4 of Article 25 of the Law of Ukraine "On collection and accounting of a single contribution to compulsory state social insurance" obligation within ten calendar days from the date of receipt of the claim on payment of arrears to pay the amounts of arrears and fines together with the accrued penalty.

The body of revenues and fees, in violation of paragraph 1 part 4 of Article 25 of the Law of Ukraine "On collection and accounting of a single contribution to the obligatory state social insurance" sent a request for payment of arrears to a single contributor who has no arrears of payment of a single contribution.

In accordance with paragraph 3 item 6. Instructions on the procedure for accrual and payment of a single contribution to the obligatory state social insurance, approved by the order of the Ministry of Finance of Ukraine №449 from 20.04.2015 (as amended by the order of the Ministry of Finance of Ukraine №469 from 04.05.2018), the requirement to pay the debt (arrears) is revoked if the body of revenues and fees cancels or changes the previously specified amount of debt (arrears) as a result of its approval or appeal - from the date of the body of revenues and fees decision to cancel or change the previously specified amount of debt (arrears).

The Complainant alleges that the authorized person who sent the Claim erroneously identified the insured person of the Complainant as the Insured or imposed the obligation to pay a single payment for other persons on the Complainant, which is prohibited by Part 9 of Art. 25 of the Law № 2464.

Based on the above, the Complainant requested the higher level supervisory authority authorized to review the complaint, the State Fiscal Service of Ukraine (SFS) to review the complaint by checking the legality and validity of the claim for payment of debt (arrears) and cancel in full the requirement to pay debt (arrears). complaint.

SFS, in such circumstances, guided by paragraph 4, paragraph 5 of section IV, paragraph 3 of section V of the Procedure for consideration by the supervisory authorities of complaints against claims for arrears of payment of a single contribution to compulsory state social insurance and decisions on penalties and imposition of a fine approved by the order of the Ministry of Finance of Ukraine dated 09.12.2015 №1124, registered in the Ministry of Justice of Ukraine on 03.02.2016 for №178 / 28308, decided to cancel the requirement to pay the debt (arrears) of the lower level supervisory authority and consider revoked from the date of this decision , and the complaint - to satisfy, to oblige the controlling body of the lower level to bring into compliance the accounting data of the information system of the body of revenues and fees and the integrated card of the payer, taking into account the above, according to current legislation.

Roman Truskavetsky

Translated from Ukrainian using Google translator