THE POSITION OF THE GRAND CHAMBER OF ALL ABOUT THE RECOGNITION OF PAYMENT OF THE PAID TAX

 The plot of the case: The LLC filed a lawsuit with the STI and GU of SCS of Ukraine in Kyiv, in which it asked:

- to declare unlawful the inaction of the inspection on failure to submit to the SCS body of Ukraine a conclusion indicating the amount of value added tax (hereinafter - VAT), which is subject to reimbursement from the budget in favor of LLC;

- to collect from the State Budget of Ukraine through the State Tax Service of Ukraine in Kyiv for the benefit of the plaintiff the debt of the VAT refund and the penalty, accrued for the amount of such debt.

 The court of first instance dismissed the claim. The Court of Appeal overturned the ruling of the court of first instance and upheld the claims of LLC.

 Motivation for a cassation complaint: A claimant's claim for VAT arrears is not the right way to protect his or her rights. The complainant also noted that a similar legal position was set out in the ruling of the Supreme Court of Ukraine of 16 September 2015 in Case No. 2a / 0570/17001/2012. On the basis of the above, the representative of the inspection asks to quash the contested decision of the court of appeal and to uphold the decision of the court of first instance.

 Legal position of the Supreme Court: The Grand Chamber of the Supreme Court has taken into account that the law does not establish the dependence of the taxpayer on the payment of VAT from its counterparties or on the grounds of non-completion of the taxpayer's counterparty check, and in the absence of responses to tax authority requests counter-checks on supply chains.

 However, failure to submit a report to the State Treasury Service of Ukraine upon completion of the check with the State Treasury Service of Ukraine, indicating the amount to be recovered from the budget, and the non-payment in connection with this VAT debt cannot deprive the taxpayer of the right to receive budgetary compensation, provided that if this taxpayer has provided the documents stipulated by the Tax Code of Ukraine and does not deprive the taxpayer of the right to claim a penalty.

 Therefore, the Grand Chamber of the Supreme Court concluded that, in the absence of a mechanism for real compensation to the taxpayer of the agreed amount of budgetary compensation of the said tax in favor of the plaintiff, it is liable to be debited from the State Budget of Ukraine in the State DKS of Ukraine in Kyiv.

 Conclusions: The Grand Chamber of the Supreme Court departed from the legal opinion of the Supreme Court of Ukraine on the non-recognition of the collection of excess value added tax, as a proper way of protecting the taxpayer's violated right, determining that collection from the State Budget of Ukraine is for taxpayer's benefit effective remedy.

 Resolution of the Supreme Court of Ukraine on February 12, 2019 in Case No. 826/7380/15.