Penalty and fine to the payer from the ATO area for late payment of ERUs

The entrepreneur, who was registered with the tax authority in the territory of the ATO, in 2017 left this territory (has the status of an internally displaced person) and registered with the tax authority in the Kiev region. In 2018, independently accrued ERUs for 2015–2017 and paid it in full. The force majeure circumstances in force at that time are confirmed by the certificate of the Chamber of Commerce and Industry received in 2018. Now the tax authorities are demanding payment of a penalty and a penalty for late payment of ERUs. Is this legitimate and can something be done?

The Law on ERUs exempted economic entities located in the ATO zone from their ERU duties (payment of ERUs, filing reports, etc.) from 04.14.2014 until the end of the ATO or martial law or a state of emergency. It was also established that the penalties provided for by the Law on ERUs should not apply to such payers during the specified period.
In pursuance of this provision, the Cabinet of Ministers issued the Order of 10/30/2014 No. 1053-p approved the List of settlements in the territory of which the antiterrorist operation was carried out. This List acted in the period from 10/30/2014 to 11/04/2014, that is, literally 6 days, after which it was suspended by the decree of the Cabinet of Ministers of 05.11.2014, No. 1079-r. This led to the fact that the ERU-privilege for economic entities of the ATO, described in paragraph 9 of Sec. VIII of the Law on ERUs, in fact, did not act, since the territory of the ATO was not defined. The said economic entities received a chance to take advantage of this privilege from 02.12.2015, when the new List started to operate, approved by the Cabinet of Ministers of Ukraine dated 02.12.2015, No. 1275-r. From 01/01/2016, the legislators abolished Section 9 of Sec. VIII Law on ERUs and deprived of ERU-benefits of payers from the ATO area.
According to the tax authorities, for taxpayers who were registered in the bodies of revenues and fees in the territory of the ATO, the ERU-privilege actually did not work. Along with everyone, they were obliged to charge and pay ERUs, as well as submit ERU-reports in the usual manner. For late payment of ERUs, such taxpayers are liable on a general basis. What, in fact, is confirmed by the requirement to pay penalties and fines received by the entrepreneur in our case.
But not everything is so sad, the norm that exempts such taxpayers from penalties and penalties for non-fulfillment of ERU duties from 14.04.2014 until the end of the ATO or martial law or a state of emergency appeared in section VIII of the Law on ERUs from 10.15.2014 “thanks to” the Law of Ukraine of 02.09.2014 No. 1669-VII. Later, the Law of Ukraine of 12/24/2015, No. 911-VIII, the item that was set in sec. VIII Law on ERU, ERU-benefits for payers from the ATO area. But since no changes were made directly to the Law on ERUs, the court considers that paragraph 9 sect. VIII Law on ERU continues to operate now.
And what is important: the reason for not applying measures of influence and penalties for failure to fulfill the obligations of the ERU payer is the fact that such a taxpayer is registered with the income and tax authorities in the territories of the ATO. This is the result of the direct effect of the norms of the ERU Law, which is addressed primarily to fiscal authorities authorized to apply penalties in the ERUs.
No additional confirmation from the payer is required.
Thus, the court indicated that the filing of the CCI certificate in order to confirm the fact that the payer carried out activities in the territory of the ATO, as well as a condition for exemption from fines and / or penalties for untimely and / or not fully accrued, calculated or Payment of ERUs is an unreasonable demand from the tax authorities. The only grounds for exemption from the obligation to pay ERUs are specified in clause 9 of Sec. VIII of the Law on ERUs and the filing of such a certificate does not say anything there.
As for the statement referred to in para. 2 p. 9 sect. VIII of the Law on ERU, then, in the opinion of the court, it is necessary for the recognition of a hopeless arrears, which must be written off. The payer has the right to submit such an application within 30 days after the end of the ATO.
At the same time, the court considers that exemption from liability is provided for directly by the Law on ERUs and does not require additional treatment from the payer.
Payers who were registered in the bodies of income and fees on the territory of the settlements where the ATO was held are exempted from the late payment and / or incomplete payment of ERUs. Moreover, this exemption is valid without submission by the payer of the application and the certificate of the Chamber of Commerce and Industry.