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Tax Audits and Protection of Tax Payers' Interests Discussed by IFA Ukraine Members

24 june, 2015, Kyiv, Ukraine

June 24th, 2015, IFA Ukraine held its regular tax seminar "Tax Audits and Protection of Tax Payers' Interests: Latest Trends and Practical Recommendations". IFA Ukraine Members, experienced in appealing tax assessments within administrative and court proceedings, discussed with Seminar attendees latest trends in tax auditing, pre-court appealing of tax assessments, tax compromise procedure, role of tax audits in criminal proceedings, and protection of company's interests against accusation in tax evasion.

The Seminar panel was joined by Roman Blazhko, Lavrynovych & Partners, Andrii Fomichov, Juscutum, Serhii Grebeniuk, Egorov Puginsky Afanasiev & Partners, Iryna Kalnytska, Gvozdiy & Oberkovych, and Tetiana Lysovets, Sokolovsky & Partners.

IFA Ukraine President Olena Voznyuk, when opening the seminar, outlined the practical importance of the Seminar for the businesses, and invited both speakers and the audience to contribute to professional discussions and share practical experience with respect to the raised topics.

Andrii Fomichov provided his view on the results and outcome of the recently implemented tax compromise, as well as outlined the prospects of the possible second edition of the tax compromise. Speaking on the risks and failure aspects of tax compromise initiative, Andrii specified, among others, procedural risks, lack of financing, relations with sub-contractors, as well as criminal prosecution risks.

As long as illegal optimization seems not to have been ceased after implementation of the tax compromise, Andrii presented the summary of the two draft laws (2593 and 2593-1), introducing new progressive provisions on "principle of tacit agreement", the right to appeal the results of the audits without suspension of the tax compromise procedure, and spreading the results of the compromise also to the disputes in cassation instance.

Iryna Kalnytska in her presentation "Methods and perspective of appealing orders on conducting tax audits" presented typical SFSU approach to grounds for issuing order for tax audits (art. 78.1.1. of the Tax Code). According to Iryna, tax authorities often put general wording alleging doubtful reality of economic operations instead of indicating specific violations; do not indicate sources from which the information on alleged breaches is obtained; refer to general clauses of the TCU only; and do not duly notify the taxpayers before the tax audit starts.

In this respect Iryna illustrated different position of the courts, making a special focus on the recently introduced new practice of the Supreme Court of Ukraine (resolution dated 27.01.2015), which is favorable for tax payers and refers to appeals on cancelling the orders on conducting the tax audits.

Roman Blazhko explored the lessons of the court practice in order to understand the possibilities of lowering the risks of administrative arrest over the assets when tax authorities are not granted the access to conduct a tax audit.

According to Roman, it is important to know the techniques of not giving access for tax authorities, since in case the access has been granted the court will only consider the violations of the tax legislation, revealed by the tax authorities.

Roman discussed the terms of granting access for tax authorities to conduct the tax audit, as well as situations when the property may be arrested as a result of tax payer's refusal to allow the tax audit. Roman listed the recommendations, as well as emphasized the importance for a tax payer to have a properly concluded Act on Denial to Grant Access, since the latter would form the evidence of existence of the dispute about the right, and be treated by the court as a ground for refusing tax authorities in their appeal.

Tetiana Lysovets delivered the presentation on the role of tax audits in criminal proceedings. In particular, Tetiana briefed in general on the procedure of opening criminal proceedings, outlined the legal grounds and methods for access to documents and their withdrawal, the required actions to bring back the documents, etc.

Serhii Grebeniuk delivered the hands-on presentation on practical aspects of criminal liability in the event of tax evasion. Serhii outlined key problematic areas with respect to protection of companys' interests, as well as listed a number of reccomendations, designed to lower the risk of criminal proceedings, such as minimization of access to the most important documents, preliminary preparation of experts' conclusions with respect to problematic areas, immediate expertise after receiving official statement of accusation etc.

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