Court case №640 / 1800/19 (https://reyestr.court.gov.ua/Review/88500408)
Unfortunately, the well-known trend of unjustified blocking of taxpayers’ tax invoices by the
Controlling Authority does not disappear.
Not only does the supervisory authority not use any criteria, but it selectively, without any legal grounds, determines by blind “lottery” which tax invoice to register and which not. For example, the Taxpayer submitted for registration 66 MOs for business transactions with the Counterparty, 58 of which were registered by the Supervisory Authority without any comments, while only 8 of them were not registered. All of the above indicates that in the same legal relationship with the same counterparties, the Supervisory Authority allows the possibility of both registration and non-registration of PN (without any logical explanation).
The European Court of Human Rights in its judgment in Suominen v. Finland of 1 July 2003 stated that the authorities were obliged to justify their actions by giving reasons for their decisions.
According to the rules of subparagraph 17.1.7 of paragraph 17.1 of Article 17 of the Tax Code of Ukraine, the taxpayer has the right to appeal in the manner prescribed by this Code, decisions, actions (inaction) of regulatory authorities (officials), including individual tax advice provided to him, and also generalizing tax advice.
When legally assessing decisions to refuse to register a tax invoice, it should be noted that the receipt of suspension of registration of the tax invoice did not specify the list of documents required for its registration. Taking into account this circumstance, the inconsistency of the requirements of the controlling body in the receipt on suspension of registration of the tax invoice for providing legal certainty precluded the controlling body from making a negative decision for the plaintiff on the grounds of non-compliance.
The possibility for the taxpayer to fulfill the obligation to provide the documents necessary for making a decision on the registration of a tax invoice directly depends on the clear definition by the controlling body of a specific list of these documents. Although the list of documents required for the decision to register a tax invoice / calculation of adjustments in ERPN is defined by Procedure № 520, the specific list of such documents may depend, in particular, on the content of the supply transaction, the subject composition of its participants, their tax behavior.
The legal position of the same content on the application of the above substantive law has already been expressed by the Supreme Court, in particular in the decisions of 16 April 2019 cassation proceedings №K / 9901/4895/19 (case №826 / 10649/17), dated 28 October 2019 cassation proceedings №К / 9901/23858/19 (case №640 / 983/19).
Thanks to the work of our lawyers, the Taxpayer was able to convince the court of the illegality of the contested Decisions of the Supervisory Authority, as a result of which all Decisions were revoked and the court obliged the Supervisory Authority to register tax invoices on the date of their actual submission.
