Earlier we talked about why the tax authorities stop the registration of tax invoices and how can you unlock them without trial. Now let's try to understand the peculiarities of the trial and the main positions of the courts in this category of cases.
Deadline for filing a lawsuit
If you decide to go to court immediately after receiving the decision to suspend the registration of the tax invoice, you have six months from the date of such decision.
If before filing a statement of claim you appealed against the decision to suspend registration with the State Tax Service, this period is reduced to three months from the date of receipt of the State Tax Service's refusal to satisfy your complaint.
For a long time, there was a common position that you can go to court within 1095 days, because such a period is specified in the Tax Code. However, the Supreme Court ruled that the Tax Code of Ukraine does not set a special deadline for appealing to the court to declare illegal the decisions of the State Tax Service to refuse to register tax invoices. Therefore, when determining the terms of appeal to the court, the general terms provided by the Code of Administrative Procedure are applied.
This position is set out in the rulings of the Supreme Court №1.380.2019.006517, №520 / 3902/2020 and №640 / 20468/18.
Court fee. How much to pay?
There was no consensus among judges on how to calculate the amount of the court fee when filing a claim for registration of a tax invoice. As a result, taxpayers were forced to either overpay the court fee for their case to be heard or to appeal the decision to leave the claim without action, which took months.
The Supreme Court decided this decision, which finally formed its position on this issue:
- recognition of the decision of the State Tax Service illegal and the obligation to register a tax invoice is one non-pecuniary claim;
- claims for revocation of several decisions of the subject the power to refuse to register a tax invoice cannot be considered as a single claim.
Thus, if we appeal against the decision to suspend the registration of three tax invoices, we must pay 6810 UAH - for UAH 2,270 for each invoice.
This position is set out in the rulings of the Supreme Court №160 / 7601/18, №280 / 5161/19, №520 / 10578/19.
Regarding the formulation of claims
In accordance with the Procedure for Maintaining the Unified Register of Tax Invoices, the date of entering information into the Register shall be the day specified in the court decision or the day of entry into force of such decision.
At the same time, it is worth mentioning the consequences of the lack of registration in the ERPN of tax invoices / adjustment calculations or their registration in violation of the deadline set by the PC of Ukraine.
In case of violation of the registration deadline, the taxpayer is subject to penalties provided by the Tax Code, and the absence of registration of the taxpayer - seller of goods / services tax invoices in ERPN does not entitle the buyer to include VAT in the tax credit and does not release the seller inclusion of the amount of VAT specified in the tax invoice in the amount of tax liabilities for the relevant reporting period.
Thus, in the claim “register the tax invoice” it is necessary to add the phrase “date of its submission”, “date of its actual receipt to the controlling body” and indicate the relevant date.
Litigation: what to look for
For a long time, during the consideration of cases concerning the registration of a tax invoice, the courts investigated the issue of the reality of the business transaction in respect of which the tax invoice was drawn up, and not the legality of the taxpayers' actions.
However, back in 2019, the Supreme Court in case №826 / 8693/18 formed a position according to which the primary object of judicial investigation in this category of cases are the circumstances under which the State Tax Service took action to suspend the registration of a tax invoice and decided to refuse it. registration.
In the same decision, the court noted that the basis for such actions should be:
- clear criteria for assessing the degree of risk relevant business transactions;
- specific list of documents, established by the tax legislation, which was subject to submission to the controlling body for investigation when making the disputed decisions.
As practice and court decisions in these cases show, the State Tax Service does not always make decisions on these grounds. This is the main reason for the successful appeal of such decisions.
What are the common mistakes made by controllers that lead to the cancellation of their decisions?
- failure to indicate in the receipt the reasons for suspension of registration of the tax invoice;
- failure to indicate in the receipt the list of documents that must be provided;
- failure to indicate in the decision the reasons for refusal to register the tax invoice.
A common practice among taxpayers is only to quote in the receipt of the suspension of registration of the tax invoice item from the list of risk criteria of the value added taxpayer or the risk criteria of transactions. At the same time, the lack of specifics in what exactly the payer's compliance with this or that item is is the basis for further reversal of the decisions of the State Tax Service, as happened in the Supreme Court Decision in case №819 / 330/18.
In their decisions, the tax authorities often come to erroneous conclusions about the reality of business transactions. In their opinion, it is impossible to confirm the reality of the transaction if one of the parties does not have a TTN, powers of attorney or other supporting documents. Therefore, during the trial it is important to pay attention to refuting such conclusions
The tax authority often points to the failure to provide bank statements and payment orders as a ground for refusing registration. According to the judges, such documents do not in any way affect the occurrence of VAT tax liabilities and are not a mandatory basis for drawing up and submitting a tax invoice for registration. This position is stated in the decision of the Sixth Administrative Court of Appeal from in the case №640 / 16169/20.
In conclusion, we can say that the courts mostly take the position of business in disputes over the suspension of registration of tax invoices. At the same time, the key to success in court is not only a statement of claim, but also careful preparation at the pre-trial stage.
Therefore, from the moment of receipt of the receipt of suspension of registration it is necessary to begin the process of collecting all the necessary evidence to prove the reality of transactions and the illegality of tax decisions.
