PJSC “Ye” filed an administrative lawsuit with the Main Department of the State Fiscal Service of Ukraine (hereinafter – MD SFSU), requesting to recognize the actions of the defendant to initiate an unscheduled documentary on-site inspection of PJSC “Ye on the reliability of budget value added tax refunds (hereinafter – VAT) for September 2018 and the adoption of the order to conduct an inspection as illegal and to cancel such an order issued on the basis of sub-item 78.1.8 of the Tax Code of Ukraine (hereinafter – the Tax Code). How the court decided this case - further.
In deciding the case, the court was guided by the following:
- in accordance with sub-item 78.1.8 of the Tax Code the unscheduled documentary inspection is carried out if the payer has submitted a declaration in which applied for a refund from the VAT budget, if there are grounds for inspection, defined in chapter V of the tax Code, and/or with a negative value of VAT, which is more than 100 thousand UAH. A literal interpretation of the norm of this sub-item testifies to two separate cases of conducting an unscheduled documentary inspection: the first is the submission of a declaration in which the amount of VAT is claimed from the budget; the second - submission of a declaration with a negative value from value added tax, which is more than 100 thousand UAH. At the same time, in the first case, an unscheduled inspection is carried out if there are grounds for inspection, defined in chapter V of the Tax Code (item 200.11 of the Tax Code);
- use in the text of sub-item 78.1.8 and item 200.11 of the Tax Code of the phrases “reimbursement from the budget of value added tax”, “amount of budget reimbursement” together with “negative value from value added tax” indicate that the condition of exceeding UAH 100,000, established by sub-item 78.1.8 of the Tax Code as a basis for conducting an unscheduled documentary inspection concerns a negative value of VAT as a separate from the amount of budget reimbursement of the tax accounting indicator. In addition, the tax authority substantiates the evidence that there are grounds for an unscheduled documentary audit of PJSC “Ye” only by referring to the fact that the company in the declaration for September 2018 claimed VAT refund in the amount of UAH 3.5 million.
Judgements by the Supreme Court of March 19, 2020 in case No. 460/2939/18: the court agrees with the conclusions of the courts of previous instances on the absence of grounds for conducting an unscheduled documentary on-site inspection of the plaintiff, defined in sub-item 78.1, item 78.1 of Art. 78 grounds for conducting an unscheduled documentary on-site inspection of the plaintiff of the Tax Code, and hence the illegality of the disputed order.
