Information and access to it without a doubt are the main weapon of the State Tax Service in the fight against tax evasion. Therefore, access to information about the objects of taxation is the key to the success of tax authorities. This thesis is no doubt, being true. However, to deal with all cases where the tax authority has the right to request from the taxpayer or other persons tax information and the payer is obliged to provide it on a new tax code is not sufficiently simple. The fact that NC in addition to general rules, providing the right regulatory authorities to claim the information on certain grounds, also contains some additional rules, greatly extending the list of grounds for the invasion of the tax payers to livelihoods, comment specialists JURIMEX. Let's try to understand. General rule regarding access to information SOT contained in Article 78 of the Tax Code, according to p.73.3 which stipulates that organs of state tax authorities have the right to apply to taxpayers with a written request for information needed to perform his organs of state tax service functions and tasks . The request must be signed by the head (deputy head) of the body SOT and contain the reasons for such request. Such bases in st.73 only two: (1) the analysis of tax information revealed facts which disclose a violation of law and the payer (2) to determine the level of regular price during the inspections. This list is not exhaustive and is complemented by the text of the Tax Code and other bases. These include (3) identification of the unreliability of information in tax returns the tax payer (p.78.1.4) (4) to receive complaints about the tax payer does not provide a tax invoice for VAT or breach of its filling (p.78.1.9 Art. 78, st.201) (5) to request a tax manager in operations with the property, staying in the tax lien (p.91.2 Article 91), as well as in some other non-significant cases. It would seem fairly slim and motivated set of norms about how to obtain tax information from the payer. However, no! Such a mechanism, the authors of the Tax Code was not enough and they have provided p.20.1.6 Article 20, according to which the supervisory authority is entitled to exercise the functions provided by the tax laws, getting free from the taxpayers, in the manner specified by the Code, information, references, copies of documents on the financial and economic activity, income, cost tax payers and other information related to the calculation and payment of taxes, as well as other legislation, enforcement is the responsibility of the tax. Now, attention is the question: how to relate to the above rules and p.73.3 p.20.1.6? Does this mean that the tax in principle entitled to request any information or still it is limited to the procedure and the grounds set out in st.73? In other words, is the norm st.20.1.6 norms of direct action, or it should be realized through rate st.73? So many questions, does not it? Issues, which in practice can have very serious consequences for taxpayers. In our opinion, guided p.4.1.4 Article 4 of the Tax Code, which establishes a presumption of legality of decisions of the payer in cases where the law allows for multiple interpretations of rights and obligations of the payer or the supervisory authority, Article 73 still limits the bodies of the State Tax Service of the right to demand documents and information, establishing procedures and grounds for their reclamation. Value of the items of the Tax Code is more important because they provide different amounts of information, which may require the tax authority. In p.20.1.6 this list is much broader, and besides the information about financial and economic operations of the payer and the use of PPO (p.72.1.1) also includes information about his income, expenses, and other information (ie, the list is not exhaustive!). We believe that the tax authorities still limited by the provisions of Articles 72 and 73 of the Tax Code, and may require the payer only the information specified in them (the information contained in tax returns and reports on the use of PPO, financial and business transactions as contained in the electronic registers). Another conflict - this is a contradiction between p.73.3 and p.p.78.1.4, NC 78.1.9. It is about the timing of providing information to the request of the tax authority. Until 2011, such information is provided by the payer within 10 days. Today, the tax code gives the payer a month to prepare the response (p.73.3). However, if the payer does not give explanations (ie, the same information and documentary evidence) in the cases provided for in p.p.78.1.1, 78.1.4, 78.1.9 for 10 days, it is the basis for conduct unscheduled spot-check of the payor. Ie contradictions as if no - answer a month - no question, but if you answer more than 10 days - get an unscheduled check. In this case, we would recommend to the payer on individual requests (for an explanation of the facts that indicate the potential (note - st.73.3 it is not possible, but the violations have already taken place!), On violations of tax reporting and filing of tax bills ) did observe a 10-day deadline for response. Separate rules regulate access array of tax services to information at the time of visiting and documentary evidence of tax audits (p.p.20.1.2, 20.1.7, 20.1.8 Article 20, as well as st.st.77, 78, 80) . Bodies of the State Tax Service in conducting field inspections have the right to request the payer of any information relating to the legislation within the competence of the tax authorities, as well as copies of documents, including primary. As for not visiting documentary checks, which take place at the location of the tax service, then Article 79 provides for the tax request additional documents from the payer. However, require such documents may require only those in the Code and the law. In our opinion, this rule also, as the norm should be implemented through p.20.1.6 p.73.3 st.73 NC, ie to the procedure, with a description of which we began this article. In this case, requesting the documents must be preceded by superior orders Revenue Service to conduct such checks, which must be made aware of the payer. Conducting a desk audit does not imply any additional documents requesting the payer (Article 76). Additional hidden reason for requesting information from taxpayers contained in p.73.5 st.73 NC, according to which organs of state tax service have the right to conduct so-called "counter-matching", ie comparison of data and other primary documents of a business entity in order to document the business relationship with the payer. Counter-checking and inspections are not conducted in the manner specified by the Cabinet of Ukraine. In view of the lack of it today for reconciliation is impossible. Separate interesting question concerning the collection of tax information - a procedure for disclosing information about bank accounts and accounts of the payer. Procedure for the disclosure of such information is not unique. Thus, according to Article 62 of the Law "On banks and banking activity", the state tax service information disclosed by banks on their written request regarding the operations of a particular natural or legal person - a business entity for a specific period of time. However, according to Article 20 p.20.1.3 Tax, the tax authorities receive from payers and banks certificates and copies of documents on the availability of bank accounts in the manner prescribed by the Law "On banks and banking activity", ie upon written request, but the information about the volume and turnover in the accounts only on the basis of the decision of the court. We believe that this conflict should be resolved in favor p.20.1.3 NC and the court's decision to obtain information about the volume and turnover in the accounts is required. However, taxpayers should not be complacent. After all, today a court ruling to the tax service does not present any problems. In addition, in order of article 69 of the Tax banks to file a tax information the opening and closing of bank accounts of the payer. Prior to receipt of the notice of withdrawal of the tax bill on the account, it is forbidden to carry out payment operations. In conclusion, we note that the above applies only to legal services and tax payers. For some reason, the authors of the Code spared your attention yet another supervisory authority - the State Customs Service, which may not refer to the above article when requesting documents from the taxpayers. The foregoing suggests that the procedure for obtaining information by state tax authorities is to put it mildly, flawed and requires immediate revision, since the number of conflicts in this part of the tax code, no doubt, will create serious problems of enforcement. Author: D. Getmantsev, Ph.D., associate professor, a lawyer
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