Liability for late payment of penalties for foreign economic activity - calculations

According to part five of Article 13 of the Law of Ukraine No. 2473-VIII "On Currency and Currency Transactions" dated June 21, 2018, violation of the payment term established in accordance with Article 13 of Law No. 2473 by residents entails the accrual of a penalty for each day of delay in the amount of 0.3 percent. the amount of unpaid funds under the contract (the cost of undelivered goods) in the national currency (in case of settlements under a foreign economic agreement (contract) in the national currency) or in foreign currency converted into the national currency at the exchange rate of the National Bank of Ukraine established on the day the debt arose.

In accordance with subpara. 54.3.3 of para. 54.3 of the TCU, the person responsible for calculating the amount of tax liabilities on a particular tax or fee and/or other obligation, the control over the payment of which is vested in the controlling authorities, applying penalties (financial sanctions) and charging penalties, including for violations in the field of foreign economic activity, is the controlling authority.

In this case, the taxpayer's monetary obligation is the amount of funds that the taxpayer must pay to the relevant budget or to a single account as a tax liability and/or other obligation, the control over the payment of which is entrusted to the controlling authorities, and/or a penalty (financial sanction) levied on the taxpayer in connection with the violation of the requirements of tax legislation and other legislation, the control over compliance with which is entrusted to the controlling authorities, as well as sanctions for violations of legislation in the field of foreign economic activity.

In addition, part eight of Article 13 of Law No. 2473 stipulates that the central executive body implementing the state tax policy, based on the results of the audit, shall collect from residents the penalty provided for in part five of Article 13 of Law No. 2473 in accordance with the procedure established by law.

At the same time, clause 2 of Section II of the Procedure for Sending Tax Notices to Taxpayers by Controlling Authorities, approved by Order of the Ministry of Finance of Ukraine No. 1204 dated 28.12.2015, stipulates that when applying penalties, in particular, for violations in the field of foreign economic activity, a tax notice-decision in the form "C" is drawn up.

Pursuant to clause 124.1 of the TCU, if a taxpayer fails to pay the agreed amount of a monetary obligation (except for a monetary obligation in the form of penalties (financial sanctions) imposed on it under the TCU or other legislation controlled by the controlling authorities, as well as a penalty imposed on it under the TCU or other legislation controlled by the controlling authorities) within the time limits specified by the TCU, such taxpayer shall be held liable in the form of a fine in the following amounts

• in case of delay up to 30 calendar days inclusive, following the last day of the due date for payment of the amount of the monetary obligation - in the amount of 5 percent of the repaid amount of the tax debt;
• in case of delay of more than 30 calendar days following the last day of the term of payment of the amount of the monetary obligation - in the amount of 10 percent of the repaid amount of the tax debt.

Thus, in case of violation of the deadline for payment of penalties accrued by the controlling authority for violation of the deadlines for settlements on export and import of goods by residents, taxpayers are subject to penalties in accordance with paragraph 124.1 of the Tax Code.

In this case, the amount of the fine is 25 percent for the actions provided for in clause 124.1 of the TCU committed intentionally. At the same time, the actions provided for in clause 124.2 of the TCU, committed repeatedly within 1095 calendar days or resulting in a delay in payment of a monetary obligation for a period exceeding 90 calendar days, shall be subject to a fine of 50 percent.

At the same time, the Code of Ukraine on Administrative Offenses does not provide for liability for violation of such a term.