The unreliability of the data of the information system became the basis for recognizing illegal inaction, annulment of decisions and the obligation to register tax invoices on the day of submission for registration

Determination of the ways of appeal against illegal inactions and decisions of the controlling body

The agricultural producer turned to LegalHelp for professional help in appealing to the court the decisions of tax officials blocking (in the sense of stopping) and refusing to register tax invoices after their independent unsuccessful appeal to the DPS of Ukraine in an administrative procedure.

The situation was complicated by the omission of the three-month period for applying to the court from the moment of receiving decisions on refusal to satisfy complaints.

However, the inaction to take into account in the automatic mode and the decision to refuse to take into account the Table of Data were not appealed and the six-month period of appeal to the court did not expire, which made it possible to legally oblige the DPS of Ukraine to register the tax invoices with the dates of their submission for registration (derivative claims) in the event of recognition illegal inaction to take into account in automatic mode and illegal decision to refuse to take into account the Table of Data and cancellation of such (basic requirements).

The Code of Administrative Procedure of Ukraine provides for, and judicial practice supports, the satisfaction of derivatives from the main requirement in case of satisfaction of the main requirement.

On the basis of available documents, other information and personal calculations made by lawyer Roman Truskavetskyi, it was established that the Company belonged to tax payers - agricultural producers who meet the conditions of clause 18 of the Procedure for stopping the registration of a tax invoice/calculation of adjustments in the Unified Register of Tax Invoices approved by a resolution of the Cabinet of Ministers of Ukraine dated 11.12.2019 No. 1165 (hereinafter Order No. 1165) and exercised the right provided for in Clause 12 of Order No. 1165 and, in accordance with Clause 23, submitted to the DPS a table of taxpayer data according to the form set out in Appendix 5, in which, in accordance with Clause 13 the types of economic activity are indicated in accordance with the KVED; codes of goods according to UKTZED supplied and/or purchased (received) by the taxpayer, imported into the customs territory of Ukraine; service codes according to the State Classifier of products and services supplied and/or purchased (received) by the taxpayer are imported into the customs territory of Ukraine.

At the time of submission by the Company of the data table, the controlling authorities, from information and telecommunication systems and other sources, already possessed all the necessary tax information specified in the Data Tables, for use during the performance of their official (official) duties within the limits of their functions (clause 19 - 1.1.46 clause 19-1.1. article 19-1 of the PKU), in particular from relevant registers, tax invoices on the purchase of seed materials, fertilizers, fuel and lubricants, fixed assets, etc., on the sale of self-grown agricultural products, from tax reporting about the area of land plots, etc. The volume of supply according to the tax invoices/calculations of adjustment registered for the last 12 calendar months in the Register was 90.32%, which is more than 25 percent of the total volume of supply transactions for the last 12 calendar months, and the values of the indicators were: D=0.12; P=0.00 (less than Pm*1.4).

The received information and calculations prove that the Table of Data submitted by the Enterprise met the conditions of Clause 18 of Order No. 1165 for taking into account DPS in automatic mode, and the tax invoices met the condition of their unconditional registration provided for in Clause 3 of Clause 3 of Order No. 1165, in particular, among simultaneously executed conditions, the values of indicators D and P were displayed in the taxpayer's electronic account.

However, the value of the indicator D=0.01 (less than 0.02) ["error"] displayed by the tax authorities in the electronic office did not correspond to the actual value of the indicator D=0.12 (more than 0.02) calculated by the lawyer.

Probably, there were errors in the calculation algorithms of the relevant software product of tax officials or, more likely, unauthorized or authorized interference in its work with the purpose of creating conditions for making impossible the automated monitoring of compliance with the following characteristics: taking into account the data table in automatic mode; by making a decision to take into account data tables, and tax invoices/adjustment calculations - signs of unconditional registration.

Armed with the "error" of indicator D, tax officials continued to make "errors" in order to prevent the taxpayer from exercising his rights and fulfilling his duties.

Appeal of failure to take into account the Table of Data in automatic mode and decision not to take into account the Table of Data

Taking into account the DPS of the Data Table of the Enterprise in automatic mode in accordance with clause 18 of Order No. 1165 did not take place [the second "error"]. The reason for such inactivity is that the controlling body noted in receipt #1 that the document is stored at the central level and instructed to take care of receipt of receipt #2 regarding the results of verification and acceptance/rejection of the electronic document [the third "error"].

The current legislation does not provide instructions to take care of receipts, and the tax authority did not indicate the real reason for non-compliance with the conditions of clause 18 of Order No. 1165, in particular, that the indicator D is less than 0.02. After all, with this, he could draw attention to an erroneous or fake indicator and receive a timely response from the Enterprise.

Receipt No. 2 states that the information in the Value Added Tax Payer's Data Table registered with the supervisory body was not taken into account in accordance with the decision of the commission on stopping the registration of the tax invoice/calculation of the adjustment in the Unified Register of Tax Invoices.

This decision, adopted in the form of Appendix 6 of Order No. 1165 [fourth "error"], states that: according to the results of the review of the data table, it was not taken into account due to the identification of inconsistency of the types of activities specified by the taxpayer in the data table with the taxpayer's fixed assets [p 'yata "error"].

According to the provisions of clause 20 of Order No. 1165, if the table of data of the taxpayer is taken into account in accordance with paragraph 18 of this Order, after the decision of the commission of the controlling body not to take into account the table of data of the taxpayer, such a table is subject to consideration in accordance with paragraph 15 of this Order.

That is, the adoption of the decision in the form of appendix 6 should have been preceded by the circumstances of taking into account the data table in automatic mode after the decision to disregard the data table.

At the time of issuing the decision in the form of appendix 6, the circumstances that should have preceded such a decision had not occurred, and information about the Enterprise's fixed assets was already contained in the relevant information bases of the controlling body from Notifications on Taxable Objects (form 20-OPP).

The decision in the form of Appendix 6 was made prematurely, and also contains inaccurate information, since the fixed assets available at the Enterprise cannot be used in any other activity, except for agricultural activities.

This decision, as well as the unlawful inaction and actions that preceded it, violated the right of the Enterprise to take into account the data table in automatic mode in accordance with clause 18 of Order No. 1165 and the right, in particular, but not exclusively, not to meet clause 1 criteria for the riskiness of transactions , as one of the reasons for stopping the registration of tax invoices and the right to meet the requirements of clauses 3 and 4 of clause 3 of Order No. 1165, as one of the signs of unconditional registration of tax invoices, for which the registration of such tax invoices/calculations of adjustments is not stopped in the Register.

Appeal against the suspension of registration of tax invoices

The tax invoices submitted by the Enterprise for registration corresponded to the condition of unconditional registration provided for in Clause 3 Clause 3 of Order No. 1165.

Clause 4 of Order No. 1165 specifies that in the case when, according to the results of the tax invoice/adjustment calculation, the tax invoice/adjustment calculation corresponds to one of the signs of unconditional registration defined in Clause 3 of this Order, the registration of such tax invoice/adjustment calculation in the Register is not stopped.

The controlling body, in violation of Clause 4 of Order No. 1165, did not check tax invoices submitted for registration for compliance with the condition of unconditional registration under Clause 3 Clause 3 of Order No. 1165 [sixth "error"], but stopped the registration of tax invoices on the basis of distorted ( distorted) indicators obtained not in the order and manner specified by the PKU occurred in violation of paragraphs 19-1.1.46 paragraph 19-1.1. Art. 19-1 and paragraphs 20.1.43. clause 20.1. Article 20 of the PKU.

Among the four available in clause 3 of Order No. 1165 of the signs of unconditional registration of a tax invoice, sub-clause 4 states: the tax invoice/adjustment calculation reflects a transaction with a product by code according to the UKKTZED and/or service by a code according to the State Classifier of Products and Services, which are specified in data table of the taxpayer, taken into account by the controlling authority.

The data table was not taken into account in the automatic mode and the decision not to take it into account made it impossible to apply clause 4 of clause 3 as one of the signs of unconditional registration of tax invoices, in the presence of which the registration of such tax invoices does not stop in the Register according to the prescriptions of clause 4 of Order No. 1165.

However, the registration of the Company's tax invoices was stopped due to the lack of product codes in the Data Table according to the criteria of the riskiness of transactions stipulated in clause 1 [seventh "error"] and it was proposed to provide explanations and copies of documents to confirm the information specified in the tax invoices [eighth "error" ].

This point of the criteria allows for the suspension of registration of tax invoices, provided that the data table of the goods indicated in it is not included in the DPS account, which is supplied on an ongoing basis, and the volume of the supply of the goods specified in the tax invoice is equal to or exceeds the amount of the balance, which is defined as the difference between the volume the purchase of such goods in the customs territory of Ukraine and/or the importation into the customs territory of Ukraine of such goods, specified from January 1, 2017 in the received tax invoices/adjustment calculations, registered in the Register, and customs declarations increased by 1.5 times. It, and Order No. 1165 in general, does not determine the riskiness of transactions involving the supply of self-grown agricultural products.

The table of data is not taken into account, and the self-grown agricultural products indicated by the Enterprise in the tax invoices were not purchased and were not imported as goods into the customs territory of Ukraine, therefore, the value of the balance cannot be determined as the difference between the volume of purchase of such goods and/or import into the customs territory of Ukraine increased by 1 ,5 times. The controlling body came to the wrong conclusion of the compliance of the tax invoices of the Enterprise for the supply of home-grown products, item 1 of the Riskiness Criteria of the implementation of operations, which is not a criterion for assessing the degree of risks according to the definition of paragraph 6, item 2 of Order No. 1165 and, in violation of item 3, item 11 of Order No. 1165, instead of indicating in the proposal copies of documents necessary for considering the issue of decision-making, indicated copies of documents to confirm the information specified in the PN at the discretion of the Enterprise.

Therefore, in violation of clause 201.16. Article 201 of the Civil Code, the registration of tax invoices/adjustment calculations in the Unified Register of Tax Invoices was stopped NOT according to the order and NOT on the grounds determined by the Cabinet of Ministers of Ukraine.

Appeal against the refusal to register tax invoices

All tax invoices contained information about the supply of goods and the Company, to confirm the information in them, along with explanations, provided copies of the original documents on the facts of business transactions offered in the receipt, as the basis for these tax invoices, which fully correspond to the prescriptions and requirements for them , set forth in Part 2. Article 9 of the Law of Ukraine "On Accounting and Financial Reporting in Ukraine and Clause 2.4. Art. 2 "Provisions on documentary support of records in accounting, and therefore contain information on real economic transactions of the taxpayer.

Receipts were not offered to provide documents confirming the origin of the goods sold.

Decisions were made by the controlling authority to refuse registration of tax invoices in connection with the provision of copies of documents drawn up in violation of the law and additional information (specify specific documents) [ninth "error": involved in the distribution of a presumably scheme tax credit [children " error"].

In accordance with clause 11 of the Procedure for making decisions on registration/refusal of registration of tax invoices/adjustment calculations in the Unified register of tax invoices approved by the Order of the Ministry of Finance of Ukraine on 12.12.2019 No. 520 and registered in the Ministry of Justice of Ukraine on 13.12.2019 under No. 1245/34216 (hereinafter - Order No. 520), the regional level commission makes a decision on refusal to register a tax invoice/calculation of adjustment in the Register in the event: the taxpayer provides copies of documents drawn up/issued in violation of the law (par. 4).

Clause 5 of Order No. 520 contains a list of possible documents for making a decision on registration of tax invoices.

In accordance with clause 10 of Order No. 520, the regional level commission makes a decision on registration/refusal to register tax invoices/adjustment calculations in the Register using the form in accordance with the appendix to this Order.

The Annex to Order No. 520 approved the form of the decision on registration/refusal to register tax invoices, which contains a requirement to indicate specific documents in the additional information on the refusal to register a tax invoice in connection with the taxpayer's provision of copies of documents drawn up in violation of the law.

However, none of the decisions on the refusal to register tax invoices contain the indication of specific documents among those possible according to the provisions of clause 5 of Order No. 520, and the phrases indicated in the fields designated for the list of documents: "involved in the distribution of a probably scheme tax credit" are not such and in general are documents.

According to the essence of such decisions, the Company was refused registration of tax invoices in connection with the provision of documents of involvement in the distribution of a likely scheme tax credit (!)

Appealing decisions on refusal to register tax invoices

The company appealed the decision to refuse registration of tax invoices in an administrative procedure. According to the results of the review of complaints, all decisions on refusal to register tax invoices were left unchanged, and complaints were not satisfied on the grounds of failure to provide copies of primary documents regarding the supply/purchase of goods/services, storage and transportation, loading and unloading of products, warehouse documents (inventory descriptions), including invoices [the eleventh "mistake"].

However, the Enterprise did not purchase the goods specified by the tax invoices, it is their producer, therefore it sold self-grown agricultural products.

The inaction of the controlling authorities to take into account the data table and the decision not to take into account the data table became the reason for not considering the Enterprise a producer, and the lack of documents for the purchase of agricultural products - the reason for stopping and refusing to register tax invoices and leaving complaints unsatisfied.

Therefore, in violation of Part 2 of Article 19, Article 68 of the Constitution of Ukraine, paragraphs 21.1.1.- 21.1.4. Clause 21.1 of Art. 21 of the Tax Code of Ukraine, tax officials did NOT comply with the Constitution of Ukraine and did NOT act exclusively in accordance with this Code and other laws of Ukraine, other regulatory acts; did NOT ensure the conscientious performance of the functions assigned to the controlling bodies; They did NOT ensure the effective work and performance of the tasks of the controlling bodies in accordance with their powers; violated the rights and legally protected interests of the Enterprise.

Obligation to take into account the Data Table and register tax invoices by the dates of submission for registration

By the court decision in case No. 620/6655/20, which was left unchanged by the appellate instance, the claim was satisfied in full, the court recognized as illegal the failure to take into account the data table in automatic mode, recognized it as illegal and canceled the Decision on not taking into account the data table, obliged to take into account the table in automatic mode data, recognized as illegal the actions of stopping the registration of tax invoices, recognized as illegal and canceled the decision to refuse registration of tax invoices, obliged to register tax invoices by the dates of their actual submission for registration.

Roman Truskavetsky

Translated from Ukrainian using Google translator