Penalty for violation of deadlines for payments in the field of foreign economic activity: the court is on the side of the tax authorities

The court upheld the position of the supervisory authority regarding the legality of the tax notification-decision, which imposed a penalty on the plaintiff for violation of the deadlines for settlements (deadlines for the delivery of goods) in the field of foreign economic activity.

In resolving this dispute, the courts correctly took into account that the violation of the deadline for payments in foreign currency occurred between 01.07.2016, i.e. the day following the expiration of the term extended by the conclusion of the Ministry of Economic Development and Trade of Ukraine, and 21.05.2017, the last day before the plaintiff applied to the Arbitration Institute at the Stockholm Chamber of Commerce and Industry to protect its violated right under the contract on the basis of which the arbitration proceedings were initiated.

The courts also correctly took into account that the plaintiff's appeal to the Arbitration Institute at the Stockholm Chamber of Commerce on 21.04.2014 did not stop the accrual of penalties, since the decision of the Arbitration Institute at the Stockholm Chamber of Commerce dated 10.05.2017 denied the application due to non-payment of the registration fee.

The courts found that the total value of the goods undelivered by the non-resident to the plaintiff amounted to USD 52658700.00. The respective amount was stated by the plaintiff in the petition dated 21.04.2014 to the Arbitration Institute at the Stockholm Chamber of Commerce and Industry and was not denied by the plaintiff during the court proceedings. Therefore, the tax authority correctly calculated the penalty taking into account 325 days of delay in delivery of the goods and the amount of undelivered goods.

In addition, as the courts correctly noted, the Law of Ukraine "On the Procedure for Making Payments in Foreign Currency", which is special for the purposes of imposing sanctions for violation of the terms of payments in foreign currency, does not provide for the possibility of taking into account the exchange rate difference in case of refund in the future.

Therefore, the Administrative Court of Cassation of the Supreme Court of 23.07.2024 in case No. 826/17473/17 dismissed the plaintiff's cassation appeal; the decision of the District Administrative Court of Kyiv dated 05.04.2018 and the decision of the Kyiv Administrative Court of Appeal dated 18.09.2018 were upheld.