THE ENTERPRISE IS NOT RESPONSIBLE FOR THE CONTRACTOR-FIXATOR!

Attorney Andriy Prikhodko draws attention to a review of the case law posted on the site alibi.dp.ua, which testifies to the lack of responsibility for the illegal actions of the counterparty.

It is necessary to point to the established case law which provides that, in itself, the fact of initiating a criminal case against the officials of the counterparty of the plaintiff, can not serve as an appropriate proof of the fictitious nature of business transactions and does not entail, for himself, legal consequences for the plaintiff. Since tax law - does not put in dependence, the right of the plaintiff - from the calculation, with the budget of third parties.

(Resolution of the Armed Forces of February 20, 2018 in the case No. 826/6280/13-a, Administrative Proceedings No. K / 9901/2848/18, USSRUA No. 72338874)

A separate example is the quote from the Supreme Court from the ruling of February 27, 2018 in the case No. 813/1974/17, Administrative Proceedings No. K / 9901/1391/17, USSRUU No. 72486629:

«Also, the panel of judges notes that the courts of previous instances - did not rightly take into account the verdict ... of the district court, to which the control body refers, as the basis of unrealistic economic relations with PE "Aqua-Medikum", as the said sentence gr. OSOB_4, found guilty of a crime committed in accordance with Part 1 of Art. 205 of the Criminal Code of Ukraine (fictitious business) with respect to LLC "100 Years of Guarantee", while the evaluation of activity gr. OSOBA_4 as the head of PE "Akva-Medikum" was not provided in the said sentence.».

Thus, according to Part 1, Article 18 of the Criminal Code of Ukraine, the subject of a crime is a physical convicted person who committed a crime in the age from which, in accordance with this Code, there may be criminal liability. That is, according to the norms of the Criminal Code, the physical person and not the legal entity are the subject of a crime.

Circumstances regarding an individual's actions established in the course of criminal proceedings concerning this individual can not be considered mandatory when assessing by an administrative court the lawfulness of the conduct of a legal entity-counterparty in the case of liability for violation of tax laws by this legal entity.

Consequently, the circumstances established by a court sentence in a criminal case against an individual can not be the basis of a court decision, in an administrative process, without their verification and confirmation by proper and admissible evidence.

That is, the prelude is made exclusively to those circumstances which were directly investigated and established by the court, which was reflected in the motive part of the judicial act. Only those mentioned, but those who did not receive a court assessment, circumstances - can not be considered as established by the court and do not acquire the properties of prejudicity.

Prejudicial facts should be distinguished from the assessment by another court in certain circumstances.

(Supreme Commercial Court of Ukraine dated February 22, 2017, case number 927/788/16, USSRU # 64949472).

It is necessary to emphasize the necessity of taking into account the legal conclusion of the Supreme Court of Ukraine, which is contained in the Resolution of 03.03.2016 in the case No. 5-347x15 (Article 455 of the Criminal Code of Ukraine). According to which - it is not permissible to establish prejudicial facts concerning persons who are not participants in this specific criminal proceedings.

According to the Supreme Court of Ukraine, the establishment of such a prelude contradicts the general principles of criminal proceedings, in particular the rule of law, legality, presumption of innocence and ensuring the proof of guilt, envisaged by Article 7 of the CPC.

Instead, international standards in the field of justice - consistently argue, the inadmissibility of ignoring the presumption of innocence and the right to a fair trial.

Thus, according to Part 2 of Article 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms, Part 2 of Article 14 of the International Covenant on Civil and Political Rights, Part One of Art. 11 Universal Declaration of Human Rights: Everyone charged with a criminal offense shall be presumed innocent, until proved guilty, in a lawful manner.

IMPORTANTLY: Moreover, according to Art. 62 of the Constitution of Ukraine Art. 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms, art. 7, Article 17 of the CPC of Ukraine in Ukraine there is a presumption of innocence. According to Part 2 of Art. 61 of the Constitution of Ukraine, the legal responsibility of a person has an individual character.

Thus, the confession of the person guilty, in the commission of a crime provided for in Part 5 of Article 27, Part 1 of Art. 205 of the Criminal Code of Ukraine, taking into account the presumption of innocence and the individual character of legal liability, will not automatically lead to the establishment of facts of illegality in the formation of a tax credit with VAT and gross expenses, from the corporate profit tax for counterparties.

At the same time, the above arguments are confirmed by the established practice of the European Court of Human Rights: the judgment of the European Court of Human Rights dated January 9, 2007 (application No. 803/02) in the case of "Intersplav v. Ukraine"; Judgment of the European Court of Human Rights dated January 22, 2009 (application no. 3991/03) "Case BULVES v. Bulgaria";

Judgment of the European Court of Human Rights dated March 18, 2010 (application no. 6689/03) in Business Supporter Center v. Bulgaria.

Thus, if the counterparty was engaged in fictitious activities, the responsibility for such a breach should be borne precisely by this company, not by the plaintiff. Since the latter is irrelevant, unlawful and unaware of its implementation, and did not commit any illegal activity regarding such activity.

And finally, in such disputes, namely, in the investigation of sentences against counteragents, it is necessary to take into account the Decree of the Supreme Court dated February 27, 2018 in the case No. 802/1853/16-a, administrative proceedings No. K / 9901/4639/17, the USSRUU No. 72486810, which clearly states that the fact of the existence of sentences approved on the basis of agreements in criminal proceedings does not give grounds for the automatic conclusion that the economic operations are unrealistic, which is why it is imperative to check the proof of each tax offense and to carry out a comprehensive study sih components business transactions, subject to conditions laid down in the judgment, which became final.

A similar position is expressed in the decision of the Armed Forces of February 7, 2018 in the case No. 813/1766/17, administrative proceedings No.К / 9901/3360/17, USSRUU № 72486685.

At the same time, Prikhodko AA noted that everyone is engaged in their business, law enforcement agencies are conducting criminal proceedings, and business makes money, therefore, it is not necessary to pay special attention to open criminal proceedings, to act within the limits of the current legislation (which is, incidentally, on the side of business) and to entrust communication with law enforcement authorities to professionals!