Consultations are published:
– concerning responsibility of FH for the allowed mistake at calculation of the sum of the land tax;
– whether join in calculation of the sum of FSH Square under rented buildings and as for these areas payment is made.
The farm which specializes on cultivation of commodity agricultural production, carries out the activity on the general system of the taxation. FH carried out understating of the sum of the land tax through erroneous application of standards of the tax legislation. Whether bears in this regard responsibility such economy and than it can be confirmed?
According to Art. 2 of the law of Ukraine from 04.12.90 No. of the 509th II About national tax service in Ukraine (in edition of the law of Ukraine from 24.12.93 No. 3813-HP with changes and additions, further – the Law No. of the 509th II), tasks of bodies of national tax service is control of observance of the tax legislation, correctness of charge, completeness and timeliness of payment in budgets, to the state specialized funds of taxes and fees (obligatory payments), and also not the taxable income established by the legislation.
By article 26 of the Law No. 2535-XII it is established that payers bear the responsibility provided by the Land code of Ukraine (Art. 211 of the Land code) for violation of standards of this Law and laws of Ukraine, in particular, the law of Ukraine from 21.12.00 No. 2181-III About an order of repayment of obligations of taxpayers before budgets and the state specialized funds (with changes and additions, further – 3akon No. 2181-III).
That is legal entities bear responsibility for completeness and timeliness of payment of the land tax, reliability of the data provided in calculation, and also for timeliness of its representation to bodies of national tax service.
According to an explanation of the Supreme Arbitration Court of Ukraine from 12.05.95 No. 02-5/451 About some questions of practice of the solution of disputes with the assistance of bodies of national tax service (with changes and additions) the bases for application concerning the taxpayers of measures of responsibility provided by acts, in particular, by the Law No. 2181-III, is concealment (understating) or failure to pay by payers of the sums of taxes, other obligatory payments in budgets irrespective of the reasons on which it occurred. Has no values and existence or absence of intention in actions of the corresponding employees of the organization – the taxpayer. Such responsibility comes and in case violation resulted from erroneous application of the legislation on the taxation, negligence, inexperience or a settlement mistake. As the financial and economic condition of the enterprise, establishment, the organization can’t undertake in attention.
The enterprise payer of the fixed agricultural tax has in using of the earth of agricultural holdings (an arable land, long-term plantings, haymakings, pastures). Besides, the enterprise rents at owners of property shares economic buildings. Whether can join in calculation of the sum of FSN Square under such objects the enterprise and how payment is made for them?
As the taxation object for payers of the fixed agricultural tax (FSP) according to requirements of the Law of Ukraine from 17.12.98 No. 320-XV About the fixed agricultural tax (with changes and additions, further – the Law No. 320-XIV) is the area of agricultural holdings (the arable land, long-term plantings, haymakings, pastures), transferred to the possession an agricultural producer or provided to it in using, including under lease, to calculation of the sum of FSN can join only the areas of agricultural holdings.
The rate of the fixed agricultural tax on one hectare of agricultural holdings is established as a percentage to their monetary assessment which has been carried out as of July 1, 1995, according to a Technique approved by Cabinet council of Ukraine, in such sizes, in particular:
– for an arable land, haymakings and pastures – 0,15;
– for long-term plantings – 0,9.
Considering that the land tax is included in structure of taxes and fees which are paid on account of FSN (Law No. 320-XIV article 1), and according to a part of the fourth article 9 of this Law action of the Law of Ukraine About a payment for the earth for agricultural producers – payers of FSN is stopped, the land lots under economic buildings can’t be included in calculation of the sum of FSN.
That is the land lots on which there are economic constructions – such land lots are under property which according to the legislation belongs to property shares.
According to the Presidential decree of Ukraine from 03.12.99 1529/99 About urgent measures for acceleration of reforming of agrarian sector of economy the obligatory conclusion was introduced by the enterprises, establishments, the organizations which use the earth for agricultural needs, lease contracts of a ground share (share), a property share with owners of these shares, shares with rent payment in a natural or monetary form. Besides, the simplified order of registration of lease contracts of a ground share (share) and a property share is introduced by local government bodies.
The order of distribution and use of property of the reorganized agricultural enterprises are approved by the order of the Ministry of an agrarian policy of Ukraine from 14.03.01 to No. 62 registered in Minjyusta Ukrainy of 04.04.01 for No. 305/5496. Point 3 of the present order obliges the AR Crimea agro-industrial complex Ministry, head departments of agricultural industry and the food of regional public administrations to use the approved Order at the organization of the solution of property questions which arise in the course of reforming of agrarian sector of economy.
So, the enterprise – the payer of the fixed agricultural tax pays the fixed agricultural tax for agricultural holdings (on aforementioned rates), and also a rent for the land lots under the economic constructions which lessors are owners of property shares and only under condition of their rent.
The contract on a ground lease is the basis for payment of a rent for the earth.
The lease contract of the earth consists in writing and at will of one of the parties can be certified notarially (article 14 of the Law of Ukraine About a ground lease).
As on an agricultural producer – the payer of FSN the standard of the Law of Ukraine from 03.07.92 of No. 2535-XII About a payment for the earth (in edition of the Law of Ukraine from 19.09.96 No. 378/96-VR with changes and additions, further – the Law No. of the 2535th II), regarding payment of the land tax for the land lots on which there are economic constructions doesn’t extend, he isn’t the payer of the land tax but provided that these objects are on its balance.
(On newspaper materials To Fermerska a hospodariate).