ORDER OF THE MINISTRY OF FINANCE OF UKRAINE

of November 19, 2012 No. 1203

About approval of the Regulations on procedure for giving and consideration of claims of taxpayers by bodies of the State Tax Administration

According to Article 19-1 of the Section I, Articles 55 and 56 of Chapter 4 of the Section II of the Tax code of Ukraine and the subitem 64 of item 4 of the Regulations on the Ministry of Finance of Ukraine approved by the Presidential decree of Ukraine of April 08, 2011 No. 446, I ORDER:

1. Approve Regulations on procedure for giving and consideration of claims of taxpayers by bodies of the State Tax Service which are applied.

2. Declare invalid the order of State Tax Administration of Ukraine of December 23, 2010 No. 1001 "About approval of the Regulations on procedure for giving and consideration of claims of taxpayers by bodies of the State Tax Service", registered in the Ministry of Justice of Ukraine on January 06, 2011 for No. 10/18748.

3. To department of tax, customs policy and methodology of financial accounting of the Ministry of Finance of Ukraine (Chmeruk M. O.), to Department of legal work of the State Tax Administration of Ukraine (Kochkarov V. V.) in accordance with the established procedure to provide:

provision of this order on state registration in the Ministry of Justice of Ukraine;

promulgation of this order.

4. This order becomes effective from the date of its official publication.

5. To impose control over the implementation of this order on the First Deputy Minister of Finance of Ukraine Myarkovsky A. I. and Chairman of the State Tax Administration of Ukraine Klimenko O. V.

 

Minister

Yu. Kolobov

IT IS APPROVED Chairman State Tax Service Ukraine O. V. Klimenko

Approved by the Order of the Ministry of Finance of Ukraine of November 19, 2012 No. 1203

Regulations on procedure for giving and consideration of claims of taxpayers by bodies of the State Tax Service

1. This Provision is developed according to Article 19-1 of the Section I, Articles 55 and 56 of Chapter 4 of the Section II of the Tax code of Ukraine, Articles 6 - 8, 18 Laws of Ukraine "About the address of citizens" and determines procedure for giving and consideration by bodies of the State Tax Service of claims of taxpayers in case of appeal administratively of tax messages decisions on determination of the amounts of monetary commitments of the taxpayer or any other decisions of bodies of the State Tax Service.

2. Bodies of the State Tax Service consider claims of taxpayers to tax messages decisions on determination of the amounts of monetary commitments of the taxpayer or any other decisions of bodies of the State Tax Service concerning taxes, charges which are levied in budgets and the state trust funds, and also concerning the legislation, control of which observance is imposed on bodies of the State Tax Service, except duty, the excise tax, the value added tax and other taxes, charges which according to the tax legislation are levied in case of import (transfer) of goods and objects to customs area of Ukraine or the territory of free customs zone or export (transfer) of goods and objects from customs area of Ukraine or from the territory of free customs zone.

The tax liability which is independently determined by the taxpayer in the tax declaration (calculation) is not subject to appeal by the taxpayer.

3. Action of this provision does not extend to consideration of claims of taxpayers to the tax messages decisions and decisions specified in Items 1 and 2 of this Provision, appealed judicially.

The refusal in acceptance of the claim of the taxpayer is forbidden. Registration of the claim shall happen in day of its giving or receipt in body of the State Tax Service.

The taxpayer along with submission of the claim to monitoring body of the highest level shall inform in writing monitoring body which determines the amount of monetary commitment or other decision on appeal of its tax message decision or any other decision is made.

4. In the claim shall be specified:

a) surname, name, middle name, the residence of physical litsanalogoplatelshchik, for the legal entity - the taxpayer - the name, the location, and also the address to which it is necessary to send the decision according to the claim;

b) the name of body of the State Tax Service to which the tax message decision on determination of the amount of monetary commitment of the taxpayer or any other decision of body of the State Tax Service which is appealed date and number, the name of tax, collection or the penal (financial) sanction and the amount is issued;

c) essence of the raised question, requests or requirements and reasons for disagreement of the taxpayer with the amount of monetary commitment determined by body of the State Tax Service in the tax message decision or disagreement with other decision of body of the State Tax Service;

d) data on the notice or not notice of relevant organ of the State Tax Service on submission of the claim of body of the State Tax Service of the highest level;

ґ) the signature of the physical person - the taxpayer, for legal litsanalogoplatelshchik - the signature of the head or person, acting as the head of the legal entity - the taxpayer. If the claim for the benefit of the physical person - the taxpayer or the legal entity - the taxpayer moves his representative, then the copy of the power of attorney which is drawn up according to requirements of the legislation is attached to the claim;

e) the list of documents and calculations which are applied to the claim. In case of the message of the claim the inventory of investment and the message on delivery is by mail attached.

5. The claim which is drawn up without observance of the requirements specified in the subitem "ґ" Item 4, or drawn up without observance of the requirements specified in subitems of "a"-"g" of item 4 of this provision that does not give the chance to consider the claim in essence, returns to person who gave it (sent), with the corresponding explanations no later than five days from the date of receipt of such claim.

6. If the questions raised in the complaint received by body of the State Tax Service are not within the competence of bodies of the State Tax Service, then such claim in time no more than five days is sent on accessory to relevant organ or the official about what it is reported to person who made the complaint. The complaint made with violation of the procedure established by this Provision is not subject to consideration on the merits and returns to person who made the complaint with explanation of procedure and terms of appeal of tax messages decisions or any other decisions of bodies of the State Tax Service.

Repeated appeals to the same body of the State Tax Service from the same person on the same question are not considered if the first is solved in essence.

7. Day of submission of the claim day of the actual receipt of the claim by relevant organ of the State Tax Service, and in case of the message of the claim by mail - the date of receipt by department of mail service from the taxpayer of the mailing with the claim specified by department of mail service in the assurance of receipt of the mailing or on envelope is considered.

In case of lack of the assurance of receipt and the inventory of investment of the mailing and print of calendar stamp of department of mail service on the mailing (envelope, parcel post) that excludes possibility of clarification of the date of receipt by department of mail service of the claim, is considered date of submission of the claim receipt date of the claim in body of the State Tax Service.

8. Submission of primary claim.

8.1. If the taxpayer considers that the body of the State Tax Service incorrectly determined the amount of monetary commitment or made any other decision which is contradicting the legislation or going beyond powers of the bodies of the State Tax Service established by the Tax code of Ukraine or other laws of Ukraine, such taxpayer has the right to address to body of the State Tax Service of the highest level with the claim about review of this decision which moves in writing with properly attested copies of documents, calculations and proofs which the taxpayer considers it necessary to provide.

8.2. The claim is submitted in body of the State Tax Service within ten calendar days coming behind day of receipt by the taxpayer of the tax message decision or any other decision of body of the State Tax Service which is appealed.

Claims to decisions of bodies of the State Tax Service of district level are submitted in bodies of the State Tax Service in the Autonomous Republic of Crimea, areas, the cities of Kiev and Sevastopol.

Claims to decisions of specialized bodies of the State Tax Service are submitted in bodies of the State Tax Service in districts.

Claims to decisions of bodies of the State Tax Service of districts are submitted in the central executive body realizing the state tax policy.

Claims to decisions of regional governments of Inspection department behind production and the address of alcohol, alcoholic beverages and tobacco products, move in Inspection department behind production and the address of alcohol, alcoholic beverages and tobacco products of the central executive body realizing the state tax policy.

Claims to decisions of Inspection department behind production and the address of alcohol, alcoholic beverages and tobacco products, move in the central executive body realizing the state tax policy.

8.3. If according to the Tax code of Ukraine the body of the State Tax Service independently determines monetary commitment of the taxpayer by the reasons which are not connected with violation of the tax legislation, such taxpayer has the right to administrative appeal of decisions of body of the State Tax Service within thirty calendar days coming behind day of receipt of the tax message decision (decision) of body of the State Tax Service.

8.4. The 30-days term specified in subitem 8.3 of this Item for appeal extends, including on:

a) the monetary commitment amounts on payment for the earth added by bodies of the State Tax Service to physical persons;

b) the decision about:

distribution of the amount of the monetary commitments or tax debt between taxpayers resulting from reorganization;

repayment of the monetary commitments or tax debt provided with tax pledge before carrying out such reorganization;

establishment of joint liability for payment of monetary commitments of the taxpayer who will be reorganized, concerning all faces formed in the course of reorganization that involves application of the mode of tax pledge concerning all property of such persons;

distribution of the right of tax pledge to property of the taxpayer who is created by consolidation of other taxpayers if monetary commitments or the tax debt provided with tax pledge had one or more of them.

9. Submission of the repeated claim.

9.1. If the body of the State Tax Service makes the decision on complete or partial dissatisfaction of the claim, the taxpayer has the right to address within ten calendar days coming behind day of receipt of the decision on results of consideration of the claim with the repeated claim to body of the State Tax Service of the highest level.

Claims to decisions of the State Tax Service in the Autonomous Republic of Crimea, areas, the cities of Kiev and Sevastopol, districts move in the central executive body realizing the state tax policy.

Claims to decisions of Inspection department behind production and the address of alcohol, alcoholic beverages and tobacco products, move in the central executive body realizing the state tax policy.

9.2. Taxpayers can attach properly attested copies of documents, calculations and proofs which the taxpayer considers it necessary to provide to the claim.

9.3. If the taxpayer did not attach the copy of the documents specified in subitem 9.2 of this Item, body of the State Tax Service of the highest level to the claim authorized to consider the claim, will request from photocopies of the specified documents body of the State Tax Service which decision is appealed.

10. The obligation of the proof that any charge performed by body of the State Tax Service in the cases determined by the Tax code of Ukraine or any other decision of body of the State Tax Service is lawful is assigned to bodies of the State Tax Service.

11. The complaint made with observance of procedure and the terms determined by subitems 8.2 and 8.3 of Item 8 and subitem 9.1 of Item 9 of this provision stops accomplishment by the taxpayer of the monetary commitments determined in the tax message decision (decision) for term from the date of submission of such claim in body of the State Tax Service about day of the end of procedure of administrative appeal.

During the specified term the tax claims on tax which are appealed are not sent, and the amount of monetary commitment which is appealed is considered uncoordinated.

In case when the last day of the terms specified in subitems 8.2 and 8.3 of Item 8, subitem 9.1 of Item 9, Item 13 of this Provision is the share of day off or holiday, the first working day coming behind day off or in the holiday is considered last afternoon of such terms.

12. The complaint made with violation of procedure and the terms determined by subitems 8.2 and 8.3 of Item 8 and subitem 9.1 of Item 9 of this Provision is not subject to consideration by bodies of the State Tax Service.

Submission due dates of statements for review of decisions of bodies of the State Tax Service are subject to prolongation by the head of body of the State Tax Service (deputy manager) by the written request of the taxpayer if such taxpayer during the specified terms:

1) was outside Ukraine;

2) was located in swimming on ocean ships abroad of Ukraine in line-up of the team (crew) of such courts;

3) was in places of detention according to the court verdict;

4) had limited freedom of travel in connection with the conclusion or captivity in the territory of other states or owing to other force majeure circumstances documented;

5) it was acknowledged by a court decision it is unknown absent or was wanted in the cases provided by the law.

Prolongation of deadlines for filing of applications about review of decisions of bodies of the State Tax Service on the specified bases is performed for taxpayers - physical persons, and also for officials of the legal entity - the taxpayer if during the deadlines determined in subitems 8.2 and 8.3 of Item 8 and subitem 9.1 of Item 9 of this Provision, such legal entity - the taxpayer had no other officials authorized according to the legislation to charge, levy and bring taxes, charges in the budget and also to keep financial accounting, to constitute and submit tax statements.

13. The body of the State Tax Service shall make the motivated decision and send it within twenty calendar days coming behind day of receipt of the claim of the taxpayer to the address of the taxpayer by mail with the assurance of receipt or to provide to it on receipt.

The head of body of the State Tax Service (deputy manager) can make the decision on prolongation of term of consideration of the claim of the taxpayer over the term determined in paragraph one of this Item, but no more than sixty calendar days and report in writing about it to the taxpayer before the termination of the term determined in paragraph one of this Item.

If the head of body of the State Tax Service (deputy manager) according to the procedure of administrative appeal makes the decision on prolongation of terms of consideration of the claim of the taxpayer over the terms determined in paragraph one of this Item, the penalty fee is not charged during such additional terms irrespective of results of administrative appeal.

14. The body of the State Tax Service by consideration of the claim of the taxpayer checks legitimacy of the charge performed by body of the State Tax Service in the cases determined by the Tax code of Ukraine, or adoption of any decision of body of the State Tax Service which is appealed, and accepts one of such decisions:

a) leaves the tax message decision on determination of the amount of monetary commitment of the taxpayer or any other decision of body of the State Tax Service which is appealed, without changes, and the claim without satisfaction;

b) cancels the tax message decision on determination of the amount of monetary commitment of the taxpayer or any other decision of body of the State Tax Service which is appealed in certain part, and does not satisfy the claim of the taxpayer in certain part;

c) cancels the tax message decision on determination of the amount of monetary commitment of the taxpayer or any other decision of body of the State Tax Service which is appealed, and satisfies the claim of the taxpayer completely;

d) increases the amount of monetary commitment or tax debt;

ґ) leaves in cases, the stipulated in Article 8 Laws of Ukraine "About the address of citizens", and returns the claim without consideration to the author.

In case when regulations of the Tax code of Ukraine or other normative legal act issued based on this Code or when regulations of the different laws or different regulatory legal acts allow ambiguous (multiple) interpretation of the rights and obligations of taxpayers or monitoring bodies therefore there is opportunity to make the decision in interests as the taxpayer and monitoring body, the decision is made for the benefit of the taxpayer.

By consideration of the claim of the taxpayer during administrative appeal the tax consultations provided to such taxpayer by bodies of the State Tax Service taking into account provisions of Article 53 of Chapter 3 of the Section II of the Tax code of Ukraine can be considered.

The reduced or increased monetary commitment amount (tax debt) can be appealed by the taxpayer according to the procedure and the terms determined by this Provision.

15. On the results of the procedure of administrative appeal the decision which is drawn up according to requirements of the legislation on languages is made. Contents of the decision consist of introductory, descriptive, motivation and resolutive parts.

The decision is drawn up on the form of the body of the State Tax Service considering the claim.

In introductory part of the decision are specified full name of the legal entity who made the complaint, surname and initials of the official of nalogoplatelshchikayuridichesky person or physical person - the taxpayer, data on appeal subject, acceptance date of the claim to consideration (date and number are specified according to the magazine of registration of incoming correspondence).

Descriptive part of the decision shall contain list of documents which were taken into account by consideration of the claim, date and number of the tax message decision on determination of the amount of monetary commitment of the taxpayer or any other decision of body of the State Tax Service and the name of the body of the State Tax Service which issued the specified documents, and the compressed statement of requirements and petitions specified in the claim.

Results of research of materials of the claim and proof on which conclusions of the body of the State Tax Service considering the claim, and also the reference to specific Articles and Items of the Tax code of Ukraine and other normative legal acts which prove the answer to the claim are based shall be given in motivation part of the decision.

The substantive provisions of the decision shall contain conclusion about satisfaction or partial grievance settlement or about refusal in satisfaction of requirements or the petitions stated in the claim for increase in the amount of the tax liability or tax debt or leaving of the claim without consideration.

In the decision it is also specified that in case of disagreement of person who made the complaint with the made decision, such decision can be appealed in body of the State Tax Service of the highest level in the terms determined in this Provision, or judicially.

The decision following the results of consideration of the claim of the taxpayer is made by the head of body of the State Tax Service (deputy manager). The original of the decision after specifying of registration number of outgoing correspondence is sent it (is provided) to the taxpayer.

The decision is considered sent (provided) to legal litsunalogoplatelshchik if it is handed to the official or the authorized person of such legal entity - the taxpayer on receipt or is sent by mail with the assurance of receipt to the address specified by legal litsomnalogoplatelshchik directly in the claim as the address to which it is necessary to send the decision by results of consideration of the claim.

The decision is considered sent (provided) to physical litsunalogoplatelshchik if it is handed to personally physical person or his representative on receipt or is sent by mail with the assurance of receipt to the address specified by the physical person - the taxpayer in the claim as the address to which it is necessary to send the decision by results of consideration of the claim.

The copy of the decision made by body of the State Tax Service of the highest level by results of consideration of primary claim of the taxpayer is sent for execution to body of the State Tax Service for the place of acceptance to accounting of the taxpayer and stored in case with materials of consideration of the claim which are filed the taxpayer.

The copy of the decision made by body of the State Tax Service of the highest level by results of consideration of the repeated claim of the taxpayer is sent for accomplishment to body of the State Tax Service for the place of acceptance to accounting of the taxpayer and in the body of the State Tax Service of the highest level considering primary claim of the taxpayer.

The copy of the decision made by body of the State Tax Service of the highest level by results of consideration of the repeated claim of the taxpayer is stored in case with materials of consideration of the claim.

In case when mail cannot hand to the taxpayer the decision by results of consideration of the claim because of absence on the location of officials, their refusal to make the decision by results of consideration of the claim, not of finding of the actual location (location) of the taxpayer, or for other reasons, decisions by results of consideration of the claim are considered handed to the taxpayer in the day specified by postal service in the assurance of receipt with indication of not delivery reasons.

16. If the motivated decision according to the claim of the taxpayer is not sent to the taxpayer during twenty-day term or during the term extended according to the decision of the head of body of the State Tax Service (deputy manager), such claim is considered completely satisfied for the benefit of the taxpayer from the date of coming behind the last day of the specified terms. The claim is considered also completely satisfied for the benefit of the taxpayer if the decision of the head of body of the State Tax Service (deputy manager) on prolongation of terms of its consideration was not sent to the taxpayer before the termination of twenty-day term.

17. The procedure of administrative appeal comes to an end:

in the afternoon, coming behind the last day of the term provided for submission of the claim to the tax message decision or any other decision of relevant organ of the State Tax Service in case such complaint was not made in the specified time;

in the afternoon of receipt of body of the State Tax Service by the taxpayer of the decision on complete grievance settlement;

in the afternoon of obtaining by the taxpayer of the decision of the central executive body realizing the state tax policy;

in the afternoon of the appeal of the taxpayer to monitoring body with the statement for payment by installments, delay of the tax liabilities which were appealed.

The decision of the central executive body realizing the state tax policy, accepted by results of consideration of the claim of the taxpayer is final and is not subject to the subsequent administrative appeal, but can be appealed judicially.

Day of the end of procedure of administrative appeal is considered day of approval of monetary commitment of the taxpayer.

18. Appeal of the decrees on the case of administrative offense issued by bodies of the State Tax Service is performed according to the procedure, determined by the Code of Ukraine about administrative offenses and the Section IV of the Instruction for registration by bodies of the State Tax Service of materials about administrative offenses approved by the order of State Tax Administration of Ukraine of October 28, 2009 No. 585, of Ukraine registered in the Ministry of Justice on December 29, 2009 for No. 1262/17278.

19. Person who made the complaint to the tax message decision on determination of the amount of monetary commitment of the taxpayer or any other decision of body of the State Tax Service has the right:

to personally state arguments to person checking the claim and to take part in verification of the made complaint;

get acquainted with check materials;

give additional materials or insist on their request the body of the State Tax Service considering the claim;

be present at consideration of the claim;

use services of the lawyer or representative, having drawn up this power in the procedure established by the law;

receive the decision following the results of consideration of the claim;

express orally or in writing the requirement concerning observance of mystery of consideration of the claim;

require indemnification if they became result of illegal decisions;

withdraw the made complaint at any time before decision making by results of consideration of the claim. Withdrawal of the claim is carried out according to the written application of person who made the complaint.

 

 

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