For the First Time in Ukraine the Court of Appeal Recognized Tax Inspections within Criminal Proceedings Illegal
As of today, there are widespread unscheduled tax audits as part of criminal proceedings on the basis of decisions by the investigating judge aimed to put pressure on businessmen. There are even cases of producing such decisions immediately on thousands of enterprises (https://goo.gl/JGQXZa) and calling inspections for a period of 18 years at a time (https://goo.gl/MJhnwU).
The legal basis for such actions is the paragraph 78.1.11 of the Tax Code of Ukraine, which establishes the right of the State Fiscal Service of Ukraine to conduct tax audits in cases where “a decision on holding inspection was produced by court (investigating judge) in accordance with the law”.
Through joint team work with the active participation of Mr Vitaly Nakonechniy (participant of Group 3 of Tomorrow’s Lawyer Program) for the first time in Ukrainian practice the Court of Appeal on 11 April 2017 cancelled one of these decisions (https://goo.gl/1JQdqA) because:
– The Criminal Code of Ukraine does NOT grant the right to a prosecutor or investigator to apply with a petition for appointment of a tax inspection;
– An investigating judge does not have the powers to decide upon these matters.
In addition, the Court of Appeal recognized the right of members to appeal proceedings following the decision of investigative judges, despite the fact that Article 309 of the Criminal Code of Ukraine contains an exhaustive list of decisions investigating judge may be challenged on appeal during the preliminary investigation.
The “Tomorrow’s Lawyer” team compliments Mr Vitaliy Nakonechniy with this uccess! We take this decision of the Court of Appeal in Kyiv as a positive step towards building a new legal practice, which will serve as a strong argument in protecting legitimate rights and interests of taxpayers. We are happy to witness that a representative of our Tomorrow’s Lawyer community has managed to achieve this important goal!
Dear participants, please be informed that the “Tomorrow’s Lawyer” Program is happy to receive and share your success stories and professional life events with the community of our Program.
