What are considered "duly certified" copies of CFC's financial statements and do CFC's financial statements need to be translated into Ukrainian?

Pursuant to subparagraph ³⁹².5.2 of the TCU, controlling persons are obliged to submit the Report on Controlled Foreign Companies (the "Report") to the controlling authority simultaneously with the submission of the annual property and income tax return or corporate income tax return for the relevant calendar year by electronic means in electronic form in compliance with the requirements of the Laws of Ukraine "On Electronic Documents and Electronic Document Management" and "On Electronic Identification and Electronic Trust Services".

The Report must be accompanied by duly certified copies of the financial statements of the controlled foreign company (hereinafter referred to as the CFC), which confirm the amount of the CFC's profit for the reporting (tax) year.

The provision of subpara. ³⁹².5.2 of the TCU requires taxpayers to take into account the standards of document execution defined by the national standard as a regulatory document in accordance with Articles 1, 23 of the Law of Ukraine "On Standardization".

The procedure for certifying copies of documents is determined by clause 5.26 of the National Standard of Ukraine of the State Unified Documentation System, Unified System of Organizational and Administrative Documentation "Requirements for Execution of Documents" DSTU 4163:2020, approved by Order of the State Consumer Standard of Ukraine No. 144 dated 01.07.2020, which entered into force on 01.09.2021.

Clause 5.26 of the National Standard "Requirements for Execution of Documents" (DSTU 4163:2020) stipulates that the mark on the certification of a copy of a document consists of the words "according to the original", the title, personal signature of the person certifying the copy, his/her name and surname, and the date of certification of the copy. In cases specified by law, copies of documents shall be certified with an imprint of the seal of a legal entity, a structural unit (record keeping service, human resources service, accounting department, etc.) of a legal entity or a seal "For copies".

Thus, the person who signs the financial statements shall put a mark on the certification of a copy of such document.

At the same time, Law No. 851 defines an electronic document as a document in which information is recorded in the form of electronic data, including mandatory document details, without which it cannot be the basis for its accounting and will not have legal force.

One of these details is an electronic signature used to identify the author and/or signatory of an electronic document by other electronic document management entities. The imposition of an electronic signature equivalent to a handwritten signature in accordance with the Law of Ukraine "On Electronic Identification and Electronic Trust Services" completes the procedure for creating an electronic document.

Therefore, the controlling person is obliged to submit to the supervisory authority copies of the CFC's financial statements certified in accordance with the requirements of clause 5.26 of the National Standard "Requirements for the execution of documents" (DSTU 4163:2020) (if possible), together with the Report by electronic means in electronic form in compliance with the requirements of the law on electronic document management and qualified electronic signature, and only such a document will have legal force, will be considered properly certified, since the person who imposes an electronic digital signature certifies the accuracy of the information contained in the electronic document, in particular in the CFC's financial statements.

At the same time, the current legislation does not provide for the translation into Ukrainian of financial statements prepared in a foreign language, nor for their apostillization and notarization.

For more information on certain issues of the new rules on controlled foreign companies, please follow the link.