LLC “K” appealed to the court with an administrative lawsuit to the State Tax Service in Cherkasy region, asking to declare illegal and cancel Order of the State Tax Service in Cherkasy region No. 771 of May 12, 2017 “On conducting a documentary scheduled inspection of LLC “K”. The claims of LLC “K” are substantiated by the fact that the order to conduct an inspection may be issued only if there are legal grounds for such an inspection. The courts denied the claims. The plaintiff filed a cassation appeal.
Case resolution
In resolving the case, the court noted the following:
- a controversial issue in this case during the cassation proceedings is the legality of the order to conduct a documentary scheduled inspection in view of compliance with the requirements of item 77.1 of Art. 77 of the Tax Code of Ukraine (hereinafter – the Tax Code) in terms of non-publication on the official web portal of the State Tax Service of plan-schedule of inspections. But this is not true. The controlling body issued an order to inspect the plaintiff in accordance with the schedule approved in accordance with the law, which, as established by the courts of previous instances, is valid and published on the official web portal of the STSU;
- the courts, substantiating the groundlessness of the appeal against the order to conduct an inspection, concluded that the inspection is considered to be conducted as a legal fact in accordance with the admission to its conduct, which is the basis for the conclusion of refusal to satisfy claims. The Supreme Court of Ukraine considers that such an opinion of the courts of first and appellate instance contradicts the legal opinion set out in the decision of the Judicial Chamber on Taxes, Fees and Other Mandatory Payments of the Administrative Court of Cassation of the Supreme Court of Ukraine in Case No. 826/17123/18, according to which, regardless of the decision of the taxpayer on the admission (non-admission) of officials to the audit, further appealing the consequences of the inspection by the controlling authority in the form of tax notices-decisions and other decisions, the taxpayer is not deprived of the opportunity to refer to violations by the controlling authority conducting such an inspection, if it considers that they cause the illegality of such TND;
- in such circumstances, the correct motives for refusing to satisfy the claims in this case are the absence of violations and the legality of an order issued by the Main Department of STSU.
Resolution of the Supreme Court of Ukraine of July 21, 2021 in case No. 823/775/17: to amend the decision of the Administrative Court of Appeal and the decision of the District Administrative Court in part of the justification of the reasons on which the courts concluded the refusal to satisfy the claims.
