In the publication the explanation of legitimacy of the requirement of GNAU (after the letter No. 22539 edition) about transfer of supply of milk and meat is given to pererabotchik from the general declaration in special and to return received compensation to the budget.
The agricultural enterprise realizes milk and meat to the processing enterprises. Such operation was reflected in the general declaration on the VAT. As operation is assessed on a rate of 0 %, the enterprise declared the budgetary compensation which part was received on a current account.
After the edition of the Letter of No. of 22539 GNAU demands to make adjustments: to transfer the sums of the tax credit on the specified operations since March, 2007 from the general declaration in special and to return received compensation to the budget. Whether GNAU requirement is lawful? How to arrive to the enterprise in this case?
We consider that the requirement tax is wrongful.
Let’s explain why.
To declaring of operations on supply of milk and meat to the processing enterprises our edition addressed more than once (see "Balans-Agro", 2007, No. 16, page 24 – 25; 2007, No. 22, page 11 – 12 – the Letter No. 22539 and edition comments to it).
In our opinion, in the mentioned letter of GNAU neyoverno treats standards of the legislation and to reflect the sums of the specified operations follows in the general declaration. Our arguments are as follows:
• The order No. 805 doesn’t regulate questions of reflection of operations in the declaration on the VAT, but only ustanavlivaet the mechanism of charge and payment of grants to selyyoskokhozyaystvenny producers therefore the exception from it of the norm concerning a deklarayotsiya on the VAT (changes are brought by the Resolution No. 596), at all doesn’t mean that the order of declaring of this tax on considered operation changed;
• Order No. 166 which regulates otrazheyony operations in the declaration on the VAT, it is provided (item 1.2) that the reduced declaration joins only those operations which concern specrezhimov, established subitems 11.21 and 11.29 Laws on the VAT. And at meat and milk realization the processing enterprises should be guided not by these subparagraphs, and subitem 6.2.6.
Let’s notice also that the aforementioned letter of GNAU isn’t the normative legal act therefore it is not obligatory for application. Any changes in
the legislation in connection with its publication didn’t occur, therefore, there are no legal grounds for updating of the declaration on the VAT.
What to do to the enterprise in the created situation? Here options are possible.
Option 1. If the requirement about adjustment postupilo from workers BEND orally, to do in general it is necessary nothing. After all for default of oral rasyoporyazheniye of taxing authorities of any responsibility it is not provided.
Option 2. The fact of reflection of operation in the general deyoklaratsiya is established during check by bodies BEND, and, according to checking, the enterprise allowed a naruyosheniye therefore the taxing authority passed the decision on application of penalties. In that case you have the right to appeal against the decision BEND in an administrative or judicial order. Taking into account opinion of taxing authorities on the matter the second option (arguments at the appeal are listed above) is more preferable.
Besides, pay attention to the next moment. If check of the taxpayer already provedena because he declared the budgetary vozyomeshcheniye on the VAT for the sum more than 100 thousand UAH. (item 9 of Art. 111 of the Law No. 509), repeated check can be initiated by a higher body of GNS only if concerning public officials of niyozhestoyashchy body of GNS which were carrying out planned or unplanned exit inspection, office investigation is begun or criminal case (by Art. 11 item 8′ the Law No. 509) is brought.
List of documents
1. The law No. 509 – the Law of Ukraine from 04.12.90 of No. 509-HI About national tax service in Ukraine.
2. The resolution No. 596 – the resolution KMU from 28.03.07 of No. 596 About modification of resolutions of Cabinet council of Ukraine from February 26, 1999 of No. 271 and from May 12, 1999 of No. 805 ("Balans-Agro", 2007, No. 8).
3. An order No. 166 – the Order of filling and submission of the tax declaration on a value added tax, approved by the order GNAU from 30.05.97 of No. 166.
4. An order No. 805 – the Order of charge, payments and use of the means directed for payment of grants to selskokhoyozyaystvenny producers for put by them to the processing enterprises milk and meat in live weight, approved by the resolution KMU from 12.05.99 of No. 805.
5. The letter No. 22539 – GNAU letter from 06.11.07 of No. 22539/7/16-1517-23.