The decision to freeze the tax bill, which increases the actual VAT liability, takes not a head tax or GU DFS regional level, and the computer algorithm of unknown origin
Blocking tax bills. We live in an exciting time of the 80th anniversary of the Great cleansing of the terror in 1937. This remarkable event still requires a detailed understanding. But, against the background of recent events, it is possible to identify the main historical significance of 1937, our country is the fight against red tape during the mass repressions.
Judge for yourself: it is very difficult to pass through purgatory punitive organs large flow of people, when operatives, investigators and prosecutors are bound hand and foot by the shackles of procedural law. The continuing importance of people's Commissar of internal Affairs of the USSR Nikolai Ivanovich Yezhov as an outstanding historical figure is that he first raised the question of the inadmissibility of the use of the ordinary legislative procedures in the organization of the massacres of the target audience.
Under the motto "Down with red tape!" was introduced emergency methods of criminal adjudication, the Special meeting or the "Troika" of the NKVD. And rightly so: why waste time on procedural casuistry, when the fate of man was decided by some "Commission", in which the sentencing lasted 5 to 15 minutes, without unnecessary bureaucratic chicanery.
Don't want to keep up with the young Iovcev and employees of the State fiscal service. Judge for yourself: in order to "zakoshmarit" the Kiev shopping center "Gulliver", I had to spend a whole military operation. This is all very troublesome and costly. Imagine that you need to "bend" not a single firm, and, for example, one hundred thousand VAT payers? Where to get so many helicopters? But where to get so many APCS? In addition, there is a purely procedural problem.
To get into the pocket of the taxpayer, it is necessary to go a long way: first assign the tax inspection legally, then properly execute the documents to the auditors for review and to "go" to the firm for verification. Then draw up a tax audit, to stoop to in order to answer possible objections of the taxpayer to the act, and only after that to produce the assessment in the context of individual taxes is to prescribe the so-called NUR (the tax notice-decision), which must be signed by the head of the tax, which conducted the test.
But that's not all, because the tax accrual will take effect only after the period of appeal.
A complaint system NUR is quite complicated and multi-step: first, the taxpayer has the right to file a complaint in the 10-day period in the administrative procedure according to article 56.3 of the Tax code in the DFS on the highest level. This means that the decision of the district tax may be appealed to GU DFS region (or GU DFS Kiev), and then, if not satisfied with the answer, directly to the SFS of Ukraine.
After the procedure of administrative appeal, if results do not satisfy the taxpayer, he has the right to file an administrative lawsuit in accordance with article 56.18 of the Tax code and shift the front against the offices of DFS halls of the administrative courts. Where, again, the additional tax will take effect only after the deadline to appeal the decision of the court of first instance, or after the decision of the administrative court of appeal. But after two courts, you can file an appeal to the Supreme administrative court, where asking for temporary suspension of tax penalties. While SACU often meet the taxpayers at the time of submission of a reasoned motion.
As you can see, the distance between "tax shakedown" and the entry into force of the court decision may take many months or even years. Does not fit!
Not only that, DFS must go through a long legal battle to get into the pocket of the businessman, and forced to prove in every court his innocence, because the norm of part 2 of article 71 of the Code of administrative procedure (CAS), the rule of presumption of innocence of private individuals:
2. In the administrative Affairs of the wrongfulness of decisions, actions or inaction of the authority regarding the obligation of proving the legality of its decision, action or inaction lies on the defendant, if he objects to an administrative claim.
Of course, for DFS such conditions are humiliating. "This is who am I going to prove?" the immortal phrase from the film "Live till Monday" as relevant as ever.
Much has been made by the state in order to discourage recourse to the administrative courts: the terms of the treatment in article 99 CASS repeatedly cut up to 6 months in non-property disputes and up to 30 days in disputes where a monetary penalty by the decision of the authority (part 5, article 99 CASS); draconian the court fees entered, such that small fines simply unprofitable to appeal in court. And they all write and write...
Not having the strength to accept the principle of the presumption of innocence, the government and DFS decided to turn the lives of the VAT payers from the inside out by the principle: let's do the opposite — let the taxpayer goes and proves his innocence, but all this time, while the appeal goes, the additional tax will have the force of law. And let suing a hundred years — it's his loss...
"Kapets" snuck up on me in the form of p. 201.16 article 201 of the Tax code, enacted before 2017 in accordance with act No. 1797-VIII from December 21, 2016. This grey and featureless at first glance, the paragraph of the Tax code of the business has twisted the classic combination of three fingers of such content:
201.16. Registration tax invoice/adjustment calculation in the Unified register of tax invoices can be stopped in the order specified by the Cabinet of Ministers of Ukraine, in the case of matching a tax invoice/adjustment calculation set of criteria for risk assessment sufficient to stop the registration of the tax invoice/adjustment calculation in the Unified register of tax invoices established in accordance with paragraph 74.2 of article 74 of this Code.
Here we should digress. First, when it introduced compulsory registration of tax invoices in the unified register, no one thought that a simple administration of the invoice register can be considered a cameral inspection of VAT. The business was then said that all this is done for the benefit of law-abiding taxpayers to cut tax loopholes, which issue tax invoices left and right, as if unwound a roll of toilet paper — is irresponsible to the buyer, often without making the tax reporting. Sometimes without the presentation of such...
Honest business then just shrugged: if it is necessary — means it is necessary. Just the cost of bookkeeping greatly increased, for where before there was enough of an accountant who comes part-time, after the introduction of URTI needed accountant for a full day, and even with the skills of IT specialists, because all our single registers are working, to put it mildly unstablehang out, they have all the time someone carries out any maintenance work, etc. in a word, they were made by the feet in one place...
But no one expected that it will replace: the right to a tax credit will be delivered in dependence upon the events specified in paragraph 198.2 of the Tax code (which has not been canceled!), and from the date of registration of tax invoices in the URTI, which is not the same thing.
Most shocking in this situation — not even the criteria for assessing the degree of risk, which we will discuss below. Shaped mockery looks 201.16.1 subparagraph of article 201 of the Tax code:
201.16.1. In the case of suspension of registration of tax invoices/adjustment calculation in the Unified register of tax invoices to the payer of tax within the operating day the Supervisory authority in automatic mode sends(in electronic form in text format) on the receipt suspension of registration a tax invoice/adjustment calculation. This receipt is a confirmation of suspension of such registration.
Practically a receipt for the lock looks like this (example):
Receipt No. 1
Company — Seller: XXXXXXXX KHKHKH, OOO
The company — Buyer: XXXXXXXX KHKHKH, OOO
Document: xxxxxxxx Tax invoice no. xxx from XX.XX.2017
The date of issuance of the tax invoice: XX.XX.2017
The number of the tax invoice: xxx
Registration number: xxxxxxxx
The document is delivered to the Central level of the State tax service of Ukraine in the twentieth.XX.2017 17:01:27
THE DOCUMENT WAS ADOPTED. REGISTRATION IS STOPPED.
According to section 201.16 of article 201 of the TCU registration NN/RK stopped. NN/RK corresponds to criteria of an estimation of degree of risk defined by paragraph 6 of the Criteria for assessing the degree of risk sufficient to suspend the registration of NN/RK in URTI approved by the order MFP from 13.06.2017 No. 567. The results of processing SEMCOR identified discrepancies in the volume of delivery the volume of purchase of goods according to the UCC FEA: XX.XX Proposed to provide explanations and/or copies of documents sufficient for the adoption of the decision on registration NN/RK in ernn in accordance with paragraph "in the" p. p. p. 201.16.1 201.16 article 201 of the TCU, an exhaustive list of which is set by the order MFP from 13.06.2017 No. 567 and/or Table data of the taxpayer. provided for in paragraph 4 of this order.
Sender: Automated system "Single window of submission of electronic documents" of the SFS of Ukraine. Version 22.13.13.
Thus, we can say: fulfilled a dream of science fiction. Computer viruses take over a VAT payer and be heard by their fate in automatic mode! Just think: the decision to freeze the tax bill, which increases the actual VAT liability, takes not a head tax or GU DFS regional level, and the computer algorithm of unknown origin.
Moreover, the decision of this computer virus takes effect immediately, and the taxpayer needs to justify himself, to prove his innocence, filing in order to claim 201.16.2 article 201 of the Tax code, their explanations and additional documents within 365 days from the date of blocking, after which a certain Commission (special meeting with GU DFS) in absentia will consider the petition of the taxpayer and accept one of decisions: about registration or refusal in registration of the tax invoice.
And here it is not even specific risk criteria, approved the Ministry of Finance order №567 from June 13, 2017 where to find a reasonable logic as difficult as life on Mars. The question here is fundamental: many of the representatives of homo sapiens is not prepared for the fact that the decision on its rights and obligations accepted computer viruses on the basis of the preventive criteria of suspicion.
Just to illustrate the situation with an example from another sphere.
Imagine that in addition to virus Petya bred Arsen virus or a virus Yura, which will send citizens to their e-mail message to the following: "Your criminal case is considered. On the basis of risk criteria fthenaki you found guilty of robbery at the savings Bank and sentenced to 10 years in prison. But you can present proof of his innocence before the special meeting at the interior Ministry".
Moreover, the fate of the people work, and a key criterion by which the block occurs, genocidal medium business production orientation.
In the vast majority of cases of VAT payers "mow" mocking charges: "revealed the discrepancy of volumes of delivery volumes of purchase of goods".
We are talking about the fact that the key criterion of "rejection" is a pretty flimsy ratio — the amount of the sold goods of a single commodity code uktzed shall not exceed more than one and a half times the amount of the purchase of the same product code UKT VED — it is so stated in the p. p. 1 p. 6 the Ministry of Finance order No. 567 as of June 13, 2017.
This is called the criterion of conditional composition. The method of monitoring is that from the point of view of the Ministry of Finance all companies should engage in simple resale of the goods, but not too expensive — not more than 1.5 times. The idea that a firm can create not formally, but in fact the added value, i.e. to produce new goods or services — probably did not fit into the consciousness the authors of order No. 567.
To finally confuse gyrus was an additional factor for blocking by the method of conditional composition it is necessary that more than 75% of the product was at risk, in accordance with the order of DFS No. 461 of June 30, 2017. You can just "good news": the order rewrote almost all the major commodity positions according to the UCC FEA — from live pigs to sanitary pads. Why more interest is not what is put on there, and for whom and why (how much?) I made an exception.
How does the criterion of conditional composition in practice. Take, for example, the transport industry. Vehicles and machinery buys at the warehouse of combustive-lubricating materials (UKT zed 2710), tire (uktzed 4011), and sells services in transportation of loads a motor vehicle (NACE 49.41). Naturally, the tax monitoring composition will disperse in different directions, because one firm buys goods, and sells a fundamentally different service. Given a correctly designed monitoring criteria, in this situation, there is that to shoot myself or the computer of the DFS, or an accountant firm...
Another example. Agriculture. The firm buys of fertilizer (UKT VED 3102), fuel (uktzed 2710), hires harvest equipment tractor and combine operators (NACE 0161), but grows and sells wheat (uktzed 1001). People who grew up on the asphalt, and computer programs are very difficult to explain why buried in the ground fertilizer and growing wheat. Now, if the wheat was bought, buried in the ground for safekeeping, and then dug up and sold, then there would be no complaints!
All this nonsense has already become a reality and a nightmare for the real sector of the economy, which may soon result in mass protests of small and medium business and the further strengthening of the shadow economy.
Puzzling: why did the government Poroshenko, Groisman decided to make business in 1937? After all, their affiliated firms will similarly suffer? But, no!
In order No. 567 has been done in advance, "hole": the monitoring will not affect the "little things" — companies with sales of up to 500 thousand UAH, or "majors" — those who paid into the budget of 2016 is more than 5 million UAH.
It turns out that order No. 567 artificially confined to the destruction of those who are only just getting to his feet. He is not a shopkeeper behind the counter at the Bazaar, but not a shark of capitalism. That's all of them and have to destroy up to 80-anniversary of the glorious 1937. To next year to take up other...
What should I do given the slaughter entrepreneurs? My first thought was to try to appeal to anonymous "the receipt of happiness" the "special meeting" with DFS — in the Commission of the DFS by making decisions on registration or refusal of registration) in the order PP 201.16.3 of the Tax code, subject to the specifics established by decrees of Cabinet of Ministers No. 190, dated 29 March 2017, No. 485 of July 4, 2017 and Ministry of Finance order No. 566 dated June 13, 2017.
Unfortunately, this path is quite thorny and full legislative guile, for filing such complaint receipt No. 1 of the computer program DFS, we thereby recognize its legitimacy and give yourself over wholly to the mercy of so-called commissions, as a matter of fact — special meetings of the DFS.
So as not to create false illusions on the working methods of these commissions, it is enough to explore the grounds through which the Commission will deny taxpayers registration.
According to the above resolution of the CMU No. 190 provides as follows:
The grounds for the adoption by the Commission of the DFS decision to refuse to register a tax invoice/adjustment calculation:
— failure to provide the taxpayer a written explanation regarding the confirmation of the information specified in the tax invoice/adjustment calculation, which applied the procedure of suspension of registration in accordance with paragraph 201.16 of article 201 of this Code;
— failure to provide the taxpayer copies of the documents in accordance with subparagraph "to" subparagraph 201.16.1 201.16 paragraph of article 201 of this Code;
— provide the taxpayer copies of the documents that made in violation of law and/or are not sufficient for adoption by the Commission of the DFS solution on the registration of tax invoices/calculation of adjustments.
How do you do? If the documents are insufficient for decision — refusal. It's classic Soviet satire: was this scene in "Zucchini 13 chairs" where a bureaucrat requires a citizen Himalayan a certificate that he is not a camel Himalayan...
But there is no exhaustive list of documents on which to draw the line and say: enough! No longer have the right! Unfortunately, have and we and right, and how...
According to the order No. 567 was approved by the Exhaustive list of documents sufficient for the adoption of the decision on registration of the tax invoice / adjustment calculation in the Unified register of tax invoices.
Now listen to how it sounds mocking in the context of applying the method of "conditional membership":
1) for the criterion specified in subparagraph 1 of paragraph 6 Criteria:
contracts, including foreign trade contracts, applications, correspondence with contractors;
contracts, powers of attorney, acts of the governing body of the taxpayer, which the credentials of individuals who receive products in the interest of the taxpayer for the economic operations;
the primary documents for the supply/acquisition of goods/services storage and transportation, loading, unloading of goods, inventory documents (inventory list), including the invoice/invoices, acts of acceptance-transfer of goods (works, services) subject to the availability of certain standard forms and industry-specific, patch;
settlement documents, Bank statements and accounts;
documents on conformity of the products (Declaration of conformity, certificates of quality, certificates of conformity), the presence of which is stipulated in the contract and/or legislation.
Now imagine that you just refueled the truck or a combine harvester during harvest, when every hour is expensive. Or run you over 100 gallons of diesel correspondence to the gas station? In the verses?! Who will give you real inventory and other documents of the gas station, if you are just a single buyer, which thousands. Of course, you the consumer, but not to such an extent that you so easily opened closed doors in someone else's business...
In short, it all comes down to the mercy of the Commission: to appease their pardon, saying that do not give bribes — prepare the certificate that you not a camel...
More corrupt and meaningless at the same time a monitoring mechanism it is difficult to imagine!
"What?" — wrote Chernyshevsky. The solution usually is in the same place and the entrance. Therefore, the most desperately courageous and I want to offer a recipe of self-defense. But for this we must again return to the starting point — to the provisions of clause 201.16.1 article 201 of the Tax code, which literally says the following:
In case of suspension of the registration of <...> the Supervisory authority in automatic mode guides (in electronic form in text format) on the receipt suspension of registration a tax invoice/adjustment calculation. This receipt is a confirmation of suspension of such registration.
Now let's break this paragraph into atoms.
First, we can state a substitution of concepts: the law, the regulatory authority of the DFS, but in practice comes to an anonymous receipt, without specifying the names of the officials who signed as follows:
Sender: Automated system "Single window of submission of electronic documents" of the SFS of Ukraine. Version 22.13.13.
However, an automated system DFS cannot be identified with the authority of DFS as the subject of power, since the computer programs are not yet pravastatine.
In addition, the 201.16.1 paragraph of article 201 of the Tax code imply that the receipt is only a confirmation of the lock — operation, which is done separately from registration of the receipt.
The above gives us the full right to make fun of the SFS of Ukraine by submitting a written appeal to the right of access to public information with such questions:
1. Yes block tax invoice decision or action of the authorized body of the DFS, and what specific officer it is accepted?
2. Someone from the officials of DFS, signed the receipt on the invoice blocking?
3. Has a "Automated system "Single window of submission of electronic documents" of the SFS of Ukraine. Version 22.13.13" the right to sign documents on behalf of DFS?
4. Is it possible to appeal against the primary block tax invoice directly in court, bypassing the various commissions of DFS?
Now a few words why the correct answers to these questions exist.
First, one should not confuse the indication that a receipt is sent automatically in text mode. A telegram is also sent in the form of the text which clearly bears the name and surname of the person that signed the Charter. On the receipt there is no signature even for the fact that it was impossible to block its action by the filing of an administrative claim. After all, in the administrative court the first question that must determine the court, — the decision was made or action made by the proper person (part 3. 2 cacu).
What do we have? The signature of the so-called automated system is no better than a signature cat Matroskin and the dog Sharik. Thus, DFS bearish bets, pretending to a receipt, and lock is not a solution and not an action, and informing. Because their main problem — the inability to describe the legal nature of the disgrace that is called the lock VAT invoices.
That's when you send the Talmud invoices, contracts, certificates and accounts to the Commission — there will be quite competent officials who will have the right to make any tax decision. But up to this point and lock, and a receipt is virtual reality which has no legal force, and therefore does not constitute any effect. It seems like you are themselves locked...
Through various queries you need to force DFS to occupy one of two positions: that receipt of the lock is or is not a legally significant document and therefore unsigned, or that it is a tax action (a solution), but without the signature of the official. Both good options.
Still need to get response — whether it is possible to appeal against a receipt and lock in court and who the defendant. If only DFS would dare to say that it is not subject to appeal to the court, but only in the administrative procedure in the Commission of DFS — all jackpot! Here you can at least go to the European court of human rights, although our LCP, because it's unheard of to public legal dispute was decided by the administrative authorities but not by the court! This is nothing but denial access to justice — that is a gross violation of article 6 of the European Convention for the protection of human rights and fundamental freedoms.
As soon as enough evidence of the nullity of a locked invoice, you can feel free to remind tax on the rule of "first event" in accordance with paragraph 198.2 of the Tax code, which has not been canceled:
198.2. The date of assignment of tax amounts to tax credit shall be the date of the event that took place earlier:
date of debiting from the Bank account of the taxpayer for payment of goods/services;
date of receipt by the taxpayer of goods/services.
The idea is that the right to a tax credit arises under the material transaction of purchase of goods or services according to section 198.1 of the Tax code, not based on the fact that someone is tinkering with the database URTI DFS.
By itself, the administration cannot create legal consequences and affect the amount of tax owed, because this issue is regulated in a different manner — in accordance with article 54 of the Tax code.
Because the tax bill was sent for registration in ernn the taxpayer of its duty fulfilled. And for some reason it was not conducted registration — no light, broken computer or program generated error in the input data is already a problem for the DFS. In this clause 54.3.2. contains no direct ban on the use of electronic data checks for the purpose of additional taxes:
54.3. The Supervisory authority is obliged to determine the amount of monetary obligations <...> if:
54.3.2. the evaluation of the results of operations of the taxpayer, in addition to electronic checks indicate understating or overstating the amount of his tax liabilities, the amount of budgetary compensation and/or negative value of object of taxation to income tax or negative tax amounts on the value added tax declared in the tax (customs) declarations clarifying the calculations.
Don't like tax invoice — do not eat! Assign an unscheduled inspection, constitutes an act, discharge of PPR, and we will go to court and it will dot the i...
And one more stroke. The situation when work decide on the rights and responsibilities of productive citizens, so outrageous that requires the intervention of the constitutional court. The trial of the century "Humans vs robots" will be loud milestone in the history of Ukrainian justice.