Article contains a conclusion concerning appeal limitation periods in a judicial order of taxing authorities about charge of the tax obligations.
The letter of the Ministry of Justice of Ukraine from 06.06.08 of No. 239-0-2-08-20
In the letter published below the Ministry of Justice does absolutely fair vyvod concerning appeal limitation periods in a judicial order of decisions of taxing authorities about charge of the tax obligations. Really, Law Art. 15 from 21.12.2000 of No. 2181-III doesn’t extend on the judicial appeal. In this case it is necessary to be guided by the Code of administrative legal proceedings of Ukraine from 06.07.05 of No. 2747-VI. According to h. 2 Art. 99 of the Code term of the appeal of decisions of bodies of tax service are made by one year from the moment of a poluyocheniye of such decision.
According to the address <…> in the Ministry of Justice it is considered <…> letter <…> about an explanation predoyostavleniye concerning a limitation period of the appeal of the decision of taxing authority about charge of the tax obligation and within competence it is reported.
The law of Ukraine 0 order of repayment of obligations of taxpayers before budgets and gosudaryostvenny specialized funds (further – the Law) yavlyaetsya the ad hoc act concerning a nalogoyooblozheniye which establishes an order of repayment of obligations legal or individuals before budgets and state target fondami on taxes and fees (obligatory payments), including collecting on obligatory state penyosionny insurance and contributions to obligatory state social insurance, charges and payments of a fine and the penalties applied to taxpayers by supervisory authorities, including for violations in the sphere of vneshneekonomicheyosky activity, and defines procedure of an obzhaloyovaniye of actions of bodies of collecting.
The question of appeal coordination of a tax obyazayotelstvo is settled by point 5.2 of article 5 of the Law.
Thus appeal coordination – this soglayosovaniye of the tax obligation in an order and the terms defined by this Law on procedures of the administyorativny or judicial appeal (point 1.20 of article 1 of the Law).
Subparagraphs 5.2.1 – 5.2.4 points 5.2 of specified article of the Law defined procedure, including terms of the admiyonistrativny appeal of decisions of supervisory authority of rather tax obligation.
Thus according to the paragraph to the first subparagraph 5.2.5 of point 5.2 of article 5 of the Law taking into account limitation periods the taxpayer has the right to appeal in court against the decision of supervisory authority on charge of the tax obligation at any time after obtaining the corresponding tax notice. In this case the specified decision of kontyoroliruyushchy body isn’t subject to the administrative appeal.
Article 15 of the Law settled an order of application of limitation periods.
So, subparagraph 15.1.1 of point 15.1 of this article preduyosmotreno that except for the cases defined by subparagraph 15.1.2 of this point, the taxing authority has the right to define independently summu the tax obligations of the taxpayer in the cases defined by this Law, no later than the termination of 1 095 day following behind the last day of a deadline of submission of the nalogoyovy declaration, and in a case when such tax declaration was provided later – behind day of its actual representation. If during the specified term the taxing authority doesn’t define the sum of the tax obligations, the taxpayer is considered free from such tax obligation, and dispute otnosiyotelno to such declaration isn’t subject to consideration in an administrative or judicial order.
According to subparagraph 15.1.2 of the above-stated point the tax obligation can be added or the proceeding of collecting such tax can be begun without term observance davnosti, this point defined in subparagraph 15.1.1, in a case when:
a) the tax declaration during the period when there was a tax obligation, wasn’t presented;
b) the court established crime execution by dolzhyonostny faces of the taxpayer or the individual – the taxpayer of rather prednayomerenny evasion from payment of the specified tax obligation.
According to subparagraph 15.2.1 of point 15.2 and podyopunkty 15.3.1 point 15.3 of specified article of the Law, in a case when the tax obligation was nachisleyono taxing authority before the termination of the limitation period defined in point 15.1 of this article, the tax duty which has arisen in connection with refusal in independent repayment of the tax obligation, can be collected during the next 1 095 calendar days from day of coordination of the tax obligation. If payment is collected by a court decision, terms of a vzysyokaniye are established before complete repayment of such payment or before recognition of a duty hopeless.
Applications for return of unduly paid taxes, collecting (obligatory payments) or on their compensation in the cases provided by tax laws, can be submitted no later than 1 095 day, sleduyuyoshchy implementation behind day of such overpayment or receiving the right to such compensation.
Taking into account the Law stated article 15 defines the limitation periods connected with:
• independent definition by taxing authority of the tax obligations of the payer in the cases defined by the Law;
• deadlines of collecting a tax duty;
• deadlines for submission of applications for return of unduly paid or not compensated taxes and fees (obligatory payments).
Thus, standards of the Law of Ukraine About an order of repayment of obligations of taxpayers before budgets and the state specialized funds, in our opinion, don’t establish limitation periods for a reference to the court of taxpayers otnositelyyono the appeal of the decision of supervisory authority about charge of the tax obligation.
In this connection in case of a reference to the court otnosiyotelno the appeal of the specified decisions it is necessary to be guided by a procedural zakonodayotelstvo of Ukraine, including concerning reference to the court limitation periods.
Together with it we note that according to stayoty 2 Laws of Ukraine About national tax service in Ukraine one of tasks of bodies of gosudaryostvenny tax service is the legislation explanation on the tax matters among taxpayers.
Deputy minister L. EFIMENKO