RISK CRITERIA OF THE ENTERPRISE

The problem of stopping the registration of the tax invoice/calculation of adjustments has become particularly widespread in the last few months. The main reason for the blocking of tax invoices / registration adjustments is the classification of the enterprise on the list of risky ones.

Resolution № 1165 of the CMU stipulates 8 criteria for determining the riskiness of a value-added tax payer. Among them are, in particular, certain defects in the registration of the taxpayer (registration based on invalid or forged documents, for a deceased or missing person), also when the taxpayer does not have a bank account, when the taxpayer did not submit reports during the last two tax periods, the corporate income tax payer did not submit financial statements for the last reporting period.

The last and most non-specific criterion for defining a risky enterprise is clause 8 of such criteria, namely, the presence of tax information at the control body that determines the riskiness of the economic transaction in the tax invoices / registration adjustments submitted for registration. The analysis of the above norms leads to the conclusion that when applying such a criterion of riskiness, the tax authority must specify which risky transactions became the basis for making a decision, which points of the criteria of the riskiness of an economic transaction are applied and according to which grounds.

The consequence of classifying the enterprise as risky is the suspension of tax invoices / registration adjustments, as well as the inclusion of the payer in the list of risky ones.

However, Resolution № 1165 states that exclusion of a taxpayer from the "risk list" is possible by submitting documents confirming the reality of the business transaction to the supervisory body. Such documents can be contracts, powers of attorney, primary documents regarding, in particular, acquisition, storage of goods, settlement documents, bank statements, declarations or certificates of compliance, other documents that can confirm that the enterprise does not meet the risk criteria.

In the event that the tax authority nevertheless made a decision to classify the taxpayer as risky, the enterprise can appeal this decision administratively or in court.

As practice shows, entrepreneurs are often refused exclusion from the list of risky payers in pre-trial appeals. However, a judicial appeal has the opposite result.

Most often, the courts come to the conclusion that the tax authority illegally included the company in the list of risky ones because the decision was made without legal grounds, in violation of the decision-making procedure, or without proper motivation and justification.

The lawyers of Prikhodko&Partners have developed a sufficient base of legal positions and court practice for an unconditional result in favor of the enterprise. Our lawyers have many years of experience in protecting clients from illegal actions of tax authorities.