HOW TO APPEAL IN COURT OF ACTIONS BY THE TAX AUTHORITY IN DRAFTING AUDIT REPORTS
Unified judicial practice on this category of disputes is not formed. In most cases, the courts denied the commencement or close of proceedings on motions STI. The legal basis for this is the position expressed by the Supreme administrative court of Ukraine in paragraph 13 of the letter from 30.11.2009 No. 1619/10/13-09. To the question "If the subject of the claim is the abolition of the inspection report the subject of authority, the proceedings should be closed to consider the claim on the merits and deny the claim?" The Supreme administrative court of Ukraine explained:
"Acts of verification decisions are not the subject of authority, shall not entail the occurrence of any of the rights and duties of persons or entities of power, and therefore does not give rise to legal relations that may be in dispute. According to the article 124 of the Ukrainian Constitution, the jurisdiction of the courts extends to all legal relations that arise in the state. Consequently, the courts are concerned solely with disputes that arise between members of certain relationships. Based on the above, no legal relationship eliminates the possibility of going to court because there is no right that is subject to judicial protection. Therefore, the court should not hear a case if filed by plaintiff demands were not derived from certain relationships, and therefore, are not subject to judicial jurisdiction. Thus, if the subject of the claim is the abolition of the inspection report the subject of authority, courts should refuse to open the administrative proceedings under paragraph 1 of article 109 of the APC of Ukraine and open the proceedings should be closed in accordance with paragraph 1 the first paragraph of article 157 of the Code.
Given this position, the possibility of appeal (recognition illegal and invalid) verification acts in administrative proceedings is futile. The plaintiffs, who are familiar with this jurisprudence, refrain from such language of the claim. Instead, the subject of the claim note the requirement to recognise illegal actions of the tax authority committed during the inspection and the execution of the act. At first glance, the difference is not significant, but it can be decisive. Here, for example, as appreciated by the Higher administrative court of Ukraine:
"The court of first instance, closing the proceedings, explained his decision by the fact that the inspection report and the conclusions contained in this act, the record only the fact of the audit and its results and do not contain any power requirements and requirements and therefore do not fall under signs of the decision (normative legal acts or acts of individual action) the subject of authority in the sphere of public government relations in the understanding of the APC of Ukraine and cannot be subject to appeal in the administrative case. However, the court has not considered what a plaintiff challenges not only the decision the subject of authority, but the actual action of its officials during the audit and directly how the defendant was identified occupied by the enterprise area of the leased premises, and the conclusions which, in his view, violate his rights.
Given these circumstances, given that the actions or inaction of officials of the state control and revision service may be appealed in court, the alleged claims are subject to review in administrative proceedings". (The definition of YOU from 27.06.2010 R. case No. To-3945/10)
Therefore, unlike the inspection report, the actions of the Supervisory authority during verification, the validity of the findings, in principle, can be subject to appeal. Given this, the question of ownership of the dispute between the taxpayer and the tax authority regarding the legality of actions taken during the inspection, during the design of the inspection report, including the formulation of conclusions, is ambiguous and requires further justification. This can be used the following arguments.
According to part 1 of article 2 of the APC of Ukraine, the task of administrative proceedings is to protect the rights, freedoms and interests of physical persons, the rights and interests of legal entities in the sphere of public law relations from violations by public authorities in the exercise of power management functions on the basis of legislation.
In accordance with article 15 of the Civil code of Ukraine (hereinafter - CC of Ukraine) every person has the right to protection of their civil rights in case of violation, recognition or contestation. Every person has the right to protection of his interest, which did not contradict the General principles of civil law. In accordance with article 16 of the civil code of Ukraine, every person has the right to address in court for protection of his personal non-property or property rights and interest. Ways to protect civil rights and interests may be, in particular, a recognition illegal decisions, actions or inaction of a public authority, authority of the Autonomous Republic of Crimea or local self-government, their officials and officers.
The object of protection in administrative proceedings are disturbed by an authority on the rights, freedoms and interests of physical and legal persons. In a Decision dated 01.12.2004 R. No. 18-RP/2004 of the constitutional court of Ukraine explained that the concept of "protected interest" should be understood as a desire to use a specific tangible or intangible benefits, as determined by the General content of the objective and are not directly related to subjective law simple legitimate permission, which is an independent object of judicial protection and other legal remedies for the purpose meet individual and collective needs, which are not inconsistent with the Constitution and laws of Ukraine, the public interest, fairness, good faith, reasonableness and other General legal principles.
The object of protection in cases that are analyzed in this article, an interest of the plaintiff, which seeks to use tangible and intangible benefits, in particular, rights arising from contracts concluded with contractors. Since these contracts are the primary documents on which it was generated gross revenues and expenses, and the amount of the tax credit for the tax on value added, their assessment by the tax authority as insignificant indicates the recognition of the rights deriving from those treaties, and consequently give rise to the controversy, legal uncertainty in the relationship between the parties to the treaties and tax relationships. These interests of the plaintiff arose out of the statutory grounds are legal, and therefore can be an independent object of legal protection