The attempt of tax authorities to perform second field audit of
the period, that has already been checked, was considered by
court.
Based on Paragraph 8, Part 6, Article 11-1 of the Law of
Ukraine "On State Tax Service of Ukraine" tax authorities
were not allowed to perform second unscheduled field check, and
when tax authorities applied to the court, the court agreed with
legal arguments introduced by the company that there was no grounds
for second field audit.
The attempt of tax authorities to perform second field audit of
the period, that has already been checked, was considered by
court.
Based on Paragraph 8, Part 6, Article 11-1 of the Law of
Ukraine "On State Tax Service of Ukraine" tax authorities
were not allowed to perform second unscheduled field check, and
when tax authorities applied to the court, the court agreed with
legal arguments introduced by the company that there was no grounds
for second field audit.
In court decision dated March 22, 2010 in the case № 2а-277/10/2670
it is particularly stated, that: “… for initiation of carrying out
an off-schedule field audit in accordance with specified paragraph
the simultaneous presence of following conditions is
necessary:
while carrying out the
control of the accuracy of conclusions of inferior state tax body
the superior state tax body has carried out the verification of
documents of obligatory accounting of taxpayer or of the
conclusions of act of audit, adopted by inferior tax body;
as a result of carrying
out the control the non-compliance of conclusions of act of
audit with the provisions of laws is established, what has caused
the non-payment of amounts of taxes and charges (obligatory
payments) to the budget;
against officers or
officials of inferior tax body, who carried out the off-schedule
field audit of specified taxpayer, an official inquiry is ordered
or criminal proceeding is instituted.
In the discussed
case the court agrees with the enterprise … on the absence of all
envisaged by that para. conditions for audit…”
“…the necessity of carrying out of the off-schedule field audit
is explained in this case by the necessity of additional check of
defendant’s enterprise in order to reveal the possible breaches of
tax legislation…”
“…Meanwhile para. 8 of part 6 of Art. 11-1 of the Law envisages
that the conclusion regarding leading to non-payment of
amounts of taxes and charges (obligatory payments) to the budget
should be specific and based on particular facts rather than
assumptions…”
Thus, the court practice confirms that recognition of
conclusions of the act of tax audit to be in contradiction with
legislation and institution of inquiry against the auditors, as
such, does not provide grounds to carry out re-audit. Re-audit
shall be grounded on specific facts, confirming that non-compliance
of conclusions of the act of field audit to legislation resulted in
underpayment of taxes to the budget.
*highlighted by KM Partners
