The court upheld the position of tax authorities on charging penalties for violation of deadlines for payments in the field of foreign economic activity

The court of cassation upheld the position of the supervisory authority regarding the legality of the tax notification-decision, which imposed a penalty for violation of the terms of payments in the field of foreign economic activity.

The Supreme Court noted that the provisions of the Instruction on the Procedure for Currency Supervision of Banks over Compliance by Residents with the Deadlines for Settlements for Transactions on Export and Import of Goods, approved by Resolution of the Board of the NBU No. 7 dated 02.01.2019 (Instruction), do not provide for the possibility of completing currency supervision over compliance by residents with the deadlines for settlements for transactions on export of goods in connection with settlements by transferring a bill of exchange as payment for the delivered goods.

Taking into account the above, the panel of judges concludes that the transfer of a bill of exchange in payment for the delivered goods under the export of goods is not a circumstance with which the provisions of the Instruction link the completion of currency supervision over compliance with the deadlines for settlements by residents, even if such a form of settlement is provided for by the terms of the contract, that is, settlements for residents' operations on the export of goods should be carried out exclusively by crediting funds to residents' accounts in Ukrainian banks.

The Supreme Court noted that the Law of Ukraine "On Foreign Economic Activity" entitles a business entity to choose the form of settlement of foreign economic transactions among those that do not contradict the laws of Ukraine, but the Law of Ukraine "On Currency and Currency Transactions", which is a special law in the field of currency transactions and has the prerogative to apply, defines a single form of settlement of transactions of residents for the export of goods and this is exclusively by crediting funds to the accounts of residents in banks of Ukraine.

Thus, realizing the purpose for which the cassation proceedings were initiated in this case, the panel of judges formulates the following legal conclusion. Article 13 of the Law of Ukraine "On Currency and Currency Transactions", which is a special law in the field of currency transactions, provides for settlements under residents' transactions for the export of goods exclusively in cash, which should be understood as the receipt of currency values in both national and foreign currency, converted into national currency at the rate of the National Bank of Ukraine, depending on the type and specifics of foreign economic agreements (contracts) in which the currency of settlement is determined. The funds are to be credited to the accounts of residents in Ukrainian banks within the terms specified in the contracts, but not later than the term and in the amount established by the National Bank of Ukraine.

Therefore, the Administrative Court of Cassation of the Supreme Court of 21.05.2024 in case No. 140/10623/23 upheld the cassation appeal of the Main Department of the State Tax Service in Volyn region; the decision of the Volyn District Administrative Court of 25.07.2023 and the decision of the Eighth Administrative Court of Appeal of 14.12.2023 were canceled and a new decision was made to dismiss the administrative claim of the plaintiff.