As you know, the road of civilization is paved with receipts for payment of taxes
Ukrainian legislator has the same opinion, introducing useless more and more of new requirements in the state tax system. Therefore, in life of every entrepreneur the good times associated with non-payment of taxes can not really come. In the case of such circumstances, the state under tax law has provided the right of taxpayer to request a statement of installment (deferred) tax liabilities or debt.
Not so long ago Minincomes in the Letter № 7017/7/99-99-11-02-03-17 sent to its territorial authorities the finalized Guidelines on establishing the threat of appearance, accumulation or non payment of outstanding tax debt and financial analysis of enterprises addressing to STS agencies for installment (deferral) of liabilities (tax debt).
Tax Code as the main fiscal document of the country in clause 100.2 art. 100 provides for right of taxpayer to appeal to the supervisory authority with request for installment and deferred tax liabilities or debt. It is considered that the taxpayer has agreed the amount of such liability. Features of this procedure in detail are specified in rules of Procedure of installments (deferred) tax liabilities or debts of taxpayers.
Ivanna Pogrebnyak
As a senior lawyer from law firm ILF Ivanna Pogrebnyak mentions, more detailed calculations and rules that govern the process of deciding by tax authorities are established by internal regulations, including guidelines.
«Until recently acted previous guidelines from 2010, which, in fact, are linked to the old laws that have no effect. Due to the need to bring recommendations to the new rules Minincomes renewed, including recommendations for installments (deferral) of liabilities (tax debt) for both businesses and for individuals», - informs I. Pogrebnyak.
Thus, the new guidelines stated that for installments (deferral) of liabilities (tax debt) the taxpayer appeals to subsequent taxpayer service (for Coordination of repayment of debts) of Minincomes authority at the place of registration or at the place of registration of monetary liabilities (tax debt) with a written statement (Annex 1 to the order N1261). It shall include the amount of taxes, fees, fines (financial) penalties, charges, payment of which the taxpayer requests for installments (delay) and the deferral period (delay) and periods of payment. Thus separately indicates the amount with payment period of which is not yet due and the maturity of which has expired.
According to a senior lawyer, base changes in these recommendations were adoption by the National Ministry of Finance Provision (Standard) 1 «General requirements for financial reporting». «Most likely this is due to those claims that MinJustice presented under old guidelines. Recommendations were approved by STA orders that have not been registered with the Ministry of Justice, in connection with which the MinJustice found that they were illegal (letter from 30.06.2010)», - said I. Pogrebnyak.
Since the letter of Minincomes is not a normative act, it can not set mandatory rules of conduct (ie norms). It was repeatedly emphasized by the Ministry of Justice. In the letter № 6785-0-26-11-8.2 department notes that «lists of ministries and other central government – are office correspondence, they are not regulations may only be expository in nature and should not contain new law affecting rights, freedoms and legitimate interests of citizens or have inter-department nature. When letters are installing the new law they are subject to recall from the field of application by authority that issued them and must be canceled».
According to Ms. Pogrebnyak, given the established practice, tax authorities in their work will be guided by those for internal use, and taxpayers should take them into account. «Only if tax authorities will put it forward as an argument to defend their position in rules set out in guidelines, you can appeal to their recommendation and an optional character that has no legitimate power» - justifies her position Ms. Pogrebnyak.
What about recommendations?
Let’s note that recommendations were developed to assess financial and economic situation of enterprises (individuals) for a decision on installments (deferral) of liabilities (tax debt).
Thus, according to norms of document, application is given with attachment of economic support, which consists of:
- List of circumstances that indicate a threat of appearance, accumulation or non-payment of outstanding tax debt, and evidence of such circumstances;
- Analysis of financial condition;
- Repayment schedule of installments (deferred) amounts;
- Calculations of income of taxpayer to guarantee the schedule.
The reason for installments (deferral) of liabilities (tax debt) is taxpayer giving sufficient evidence of circumstances, the list approved by the Cabinet of Ministers in Resolution № 1235 «On approval of the list of circumstances that indicate presence or threat of accumulating tax debt, and evidence of such circumstances».
In analyzing financial condition of taxpayer who applies for installments (deferred) of liabilities are calculated ratio threats of tax debt for taxpayer who applies for installments (deferred) tax debt, the threat factor accumulation or redemption of tax debt. All other coefficients are calculated for both cases in a general manner. After reviewing the documents and financial analysis of applicant company the director (deputy head) of Minincomes authority within 30 calendar days from the date of application decides to installments (delay) payment of sums of money obligations (tax debt) or denies the taxpayer in installments (deferment) in writing stating the reasons for refusal.
One of the most significant changes in recommendations is to implement provisions of hierarchical order of the payer's request for installments (deferred) tax liabilities (tax debt). Namely, taxpayer must first apply to the territorial authority of Minincomes. Also taxpayer has the right to appeal further to the regional office or directly of Minincomes.
«If the amount of liability (tax debt) or deferral period is beyond competence of Minincomes territorial authority, such authority forms an opinion and sends documents to regional authority which, in turn, with its conclusion sends documents to Minincomes. In general, the bureaucratic process is guaranteed» - concludes Ivanna Pogrebnyak.
