Turnover on personal accounts of individuals-entrepreneurs

The interest of the tax authorities in the personal accounts of businessmen in banks became known in August of this year, when the SFSU appealed to the banks with the requirement to inform them, including open personal (non-business) accounts. But what limits the rights of tax authorities in doing so? What do they have the right to find out from the bank, and what information can they get from the entrepreneur himself, for example, during an inspection?

Don't cross the line. What is nice, the main thing is that the tax authority adequately assesses its rights (as evidenced by the recent explanation in the category 135.04 ЗІР). In it, the SFSU indicates: “after the start of the inspection, the taxpayer is obliged to provide to the officials (officers) of the controlling bodies in full all documents belonging to or related to the subject of the inspection, in particular, primary documents (including bank statements), registers, financial, statistical and other reports related to the calculation and payment of taxes, fees, charges ”.

At the same time, the controlling bodies have the right to receive free of charge from the NBU institutions, banks and other financial institutions only information on the volume and turnover of funds in the taxpayer’s accounts only on the basis of a court decision.

Tax authorities come to such conclusions, relying, in particular, on p. 20.1.6 NKU. It allows them to request and examine during the inspections the primary documents used in accounting, registers, financial, statistical and other reports related to the calculation and payment of taxes, fees, payments, compliance with the requirements of the law, monitoring compliance with which is assigned to regulatory authorities.

Also, the SFSU draws attention to the duty of the taxpayer to provide all the documents belonging or related to the subject of the inspection to the officials (officers) of the controlling bodies in full. Moreover, such a duty in accordance with clause 85.2 of the GCC arises for the payer after the start of the check.

In cases not provided by the GCC, the reclamation of documents from the payer by any official (official) persons of supervisory authorities is prohibited.

But a more valuable indication is contained in para. 20.1.5 NKU. It allows tax authorities to receive certificates free of charge from taxpayers, as well as from NBU institutions, banks and other financial institutions in the manner prescribed by Law No. 2121 ** and the TCU, certificates and / or copies of documents on the availability of bank accounts.

The Law of Ukraine “On Banks and Banking Activities” of December 12, 2000, No. 2121-III.

And p. 4 h. 1 tbsp. 62 of Law No. 2121 established that information containing banking secrets about the presence of bank accounts is disclosed by the SFSU banks upon its written request.

To other information containing banking secrets, tax authorities access is closed.

It was this right that the tax authorities took advantage of this summer, and they did it not for any particular bank or entrepreneur, but carried out a large-scale inquiry into information on the availability of bank accounts with entrepreneurs.

Although, it would seem, the tax authorities should have this information. The fact is that when opening accounts, an entrepreneur is obliged to inform the bank about his business status (pursuant to clause 69.7 of the TCU). If he does not do this, then, according to fiscals, the bank should verify the fact that a natural person does business in open registries and, when establishing such a fact, inform the tax authorities about all accounts of this person (see INC. GFSU of 04.09.2017, No. 1794 / 6 / 99-99-13-01-02-14 / IPK). But, apparently, this mechanism "glitches."

Note: the data obtained in this way will not give the tax authorities reason to insist that an entrepreneur evades paying taxes.

Same ppt 20.1.5 of the TCU establishes: information about the volume and turnover of funds in the accounts, the tax authorities can only receive on the basis of a court decision.

Including the non-receipt in a timely manner of foreign exchange earnings from business entities, information about the debtor’s agreements on storing valuables or providing the debtor with a property lease (lease) of an individual bank safe protected by a bank.

This is not surprising, because of art. 60 of Law No. 2121, it follows that information on customers' bank accounts, as well as information on the movement of funds and their balance, is bank secrecy. But by court decision, information that is a banking secret can be disclosed by banks in accordance with paragraph 2 of Part 1 of Art. 62 of Law No. 2121 (cf. 046391400).

But what accounts are referred to in par. 20.1.5 NKU? It seems that it is not only about entrepreneurial, but also about personal accounts of entrepreneurs. After all, the tax authorities can get all (or almost all) information on business accounts when checking from bank statements.

Extracts from customer accounts are confirmation of the transactions performed on the day and are intended to be issued or sent to the customer (in accordance with clause 62 of Chapter IV of Provision No. 75).

Regulations on the organization of accounting, accounting control in the implementation of operating activities in the banks of Ukraine, approved by the NBU Board resolution dated 04.07.2018 No. 75.

At the same time, the order, frequency of printing and the form of providing statements (in paper / electronic form) from customer accounts are determined by the bank account agreement concluded between the bank and the customer when opening an account.

When can the tax authorities hope for a court decision? Obviously, we are talking about "extreme" cases when there are confirmed facts of an offense with a specific FLP.

It can not be any one court decision that would apply to all individuals who are entrepreneurs.

Future prospects. There are prerequisites to assert that over time, the tax authorities will get almost complete access to bank secrecy. The fact is that our country in the near future (according to forecasts in 2020) can join the international financial reporting system (Common Reporting Standard) CRS. After that, Ukrainian banks will collect and transfer data about their clients to the tax authorities, and they will exchange information with colleagues from other countries.

If this happens, then the tax authorities will have information about all the income on the personal accounts of individuals and entrepreneurs. And they can make their own, sometimes disappointing, conclusions. But what will happen in reality - only time will tell.