ENTRY INTO THE RISK OF TAX PAYERS APPEAL PRACTICE

  Suspension of registration of tax invoice / calculation of adjustment (PN / RC) in the Unified register of tax invoices (ERPN) is a derivative result of entering of the taxpayer in the list of risky.

  Therefore, an effective way to protect the infringed rights during a judicial appeal against suspension of the registration of the PN / RC is also to declare the decision of the DFS body unlawful on the listing of risk taxpayers as an act of individual action.

 The DFS has the view that the taxpayer does not suffer any negative consequences and that his rights are not violated due to his inclusion in the list of risk payers.

 Judicial position: The decision of the State Tax Service Commission, drawn up by the protocol, concerning the listing of risk taxpayers violates the rights of the plaintiff as a taxpayer, taken in the absence of legal grounds (case example 0340/1743/18, appeal).

 Formulation of claims:

- recognition as unlawful and the cancellation of the decision of the Commission of the Main Directorate of the State Fiscal Service (region), which makes the decision to register the payer in the list of risk taxpayers and the obligation to exclude the plaintiff from the list of risk taxpayers.

 Obtaining a copy of the statement of record:

- the current legislation of Ukraine does not provide the taxpayer with a copy of the decision on its inclusion or exclusion to / from the list of risky taxpayers, in connection with which the payer cannot independently submit a copy of the contested decision, which was not handed to him by the DFS. Therefore, when filing a lawsuit, it is necessary to file a request for the excerpt from the minutes of the meeting of the Commission and the materials on the basis of which the taxpayers are referred to the following list (example: court rulings in cases 826/16849/18, 0340/1743/18, 821/979 / 18).

  In the case of refusal to provide the SFS with an excerpt from the protocol, the courts consider that the decision to assign the plaintiff to the list of risky taxpayers was not made in accordance with the procedure established by law (example: case 821/979/18, appeal).
As a means of securing a claim, it is recommended to file an application for suspension of the decision of the DFS (Regional) Headquarters Commission, which decides on the registration of PN / RK in the ERPN, drawn up by the protocol, as regards the listing of risk taxpayers (example: case 0340/1743/18 ).

 The unlawfulness of the listing of risk payers of actions is considered by the court taking into account specific circumstances. The grounds for this are the unlawfulness of the Taxpayer's Risk Criteria themselves, which are defined only by letters from the GFS.

 As a result of consideration of the claim, the courts decide:
- declare the actions of the commission of the Main Directorate of the State Fiscal Service (in the region) unlawful for listing the claimant in the list of risky taxpayers;
- oblige the DFS (Regional) Commission to exclude the claimant from the list of risky taxpayers (example: cases dealt with by the appellate bodies 0340/1743/18, 821/979/18).