NOVELTIES IN THE FIELD OF APPEALING A TAX NOTIFICATION DECISION

Abstract

The article reveals the issues of the implementation of justice in bankruptcy cases by economic courts in Ukraine in connection with a change in approaches to resolving issues of appealing the tax notification decisions. Special attention is paid to the analysis of the content and relevance for the enforcement of the ruling adopted by the Grand Chamber of the Supreme Court in case No. 905/2030/19, which significantly changes the rules for determining the jurisdiction of a part of such disputes from administrative to economic one. Attention is drawn to the fact that, according to Article 20 of the Economic Procedure Code of Ukraine, the cases on disputes on the determination and payment (collection) of monetary obligations (tax debt) determined in accordance with the Tax Code of Ukraine, as well as disputes on invalidating transactions for a claim by the controlling body in the exercise of its powers determined by the Tax Code of Ukraine are excluded from the jurisdiction of economic courts. It is noted that, according to the current practice of the Grand Chamber of the Supreme Court, it is determined that the dispute over the debtor’s claim on recognition as unlawful and cancellation of the tax notification decision has a property nature, since as a result of its consideration the tax authority may have the right to recover a certain amount of money from the debtor which is the property of the debtor, and therefore the claim by the person against whom there are initiated the cases on bankruptcy, recognition as unlawful and cancellation of the tax notification decision is subject to consideration within the framework of the bankruptcy proceedings by the economic court. The understanding in accordance with the practice of the European Court of Human Rights of the principle of legal certainty is revealed the violation of which entails risks of law enforcement, which is an integral part of the convention principle of the rule of law. Attention is drawn to the problems of its respect in the context of change in the approaches towards jurisdiction determining of issues on appealing tax notification decisions in bankruptcy cases. The position is supported that disputes on the cancellation of tax notification decisions are of a dual nature, associated both with the essence of tax obligations and the procedural component of the court fees payment. An emphasize is made on the accuracy of the remark that the studied category of disputes should be considered by the courts of administrative jurisdiction, since they arise within the framework of a public law dispute which reduces the dispute to checking the correctness of the actions of the controlling body and not to the protecting property. It was concluded that the position of the Grand Chamber of the Supreme Court set out in the ruling on September 21, 2021 in case № 905/2030/19 creates conditions when part of the disputes on the recognition as unlawful and cancellation of the tax notification decision in which there is no bankruptcy proceeding instituted against the applicant is subject to administrative courts, and part of the disputes in which bankruptcy proceedings have been instituted against the applicant is subject to economic courts, which deviates from the previously developed position that all these disputes on appealing the tax notification decisions are subject to administrative courts.