On the use of international electronic document management services by legal entities

At the request of the State Tax Service, the Ministry of Digital Transformation of Ukraine provided clarifications on the use of international electronic document management services, in particular the DocuSign service, by taxpayers - legal entities as subjects of electronic document management for tax purposes (in terms of signing foreign economic agreements (contracts) and other documents related to their execution, primary documents).

The Ministry of Digital Transformation notes that in accordance with part one of Article 205 of the Civil Code of Ukraine, a transaction may be made orally or in writing (electronic). The parties have the right to choose the form of the transaction, unless otherwise provided by law.

A transaction shall be deemed to be made in writing if its content is recorded in one or more documents (including electronic documents), letters, telegrams exchanged by the parties or sent by them to the information and communication system used by the parties. If the content of a transaction is recorded in several documents, the content of such a transaction may also be recorded by reference to other documents in one of these documents, unless otherwise provided by law. A transaction shall be deemed to have been made in writing if the will of the parties is expressed by means of a teletype, electronic or other technical means of communication. The use of a facsimile reproduction of a signature by means of mechanical, electronic or other copying, electronic signature or other analog of a handwritten signature in transactions is allowed in cases established by law, other acts of civil law, or by written consent of the parties, which must contain samples of the relevant analog of their handwritten signatures, or otherwise regulate the procedure for its use by the parties (Article 207 of the Civil Code of Ukraine).

The Law of Ukraine "On Electronic Identification and Electronic Trust Services" regulates the relations arising between legal entities, individuals, and public authorities in the process of providing and receiving electronic identification services, digital identification wallets, and electronic trust services, the procedures for providing such services, and supervision and control over compliance with the requirements of the legislation in the areas of electronic identification and electronic trust services. Laws of Ukraine may establish specifics of legal regulation of electronic identification and provision of electronic trust services in certain areas of social relations (Article 2 of the Law of Ukraine "On Electronic Identification and Electronic Trust Services").

Thus, primary documents may be drawn up in paper or electronic form and must have the following mandatory details: name of the document (form); date of drawing up; name of the company on whose behalf the document was drawn up; content and scope of the business transaction, unit of measurement of the business transaction; positions and names (except for primary documents, the requirements for which are established by the National Bank of Ukraine) of persons responsible for the business transaction and the correctness of its execution; personal signature or other data that allow identification of the person Primary documents created automatically in electronic form by the software of the information and communication system shall be used in accounting provided that they have an electronic signature or seal in compliance with the requirements of the legislation on electronic documents and electronic document flow. Primary documents drawn up in electronic form are used in accounting subject to compliance with the requirements of the legislation on electronic documents and electronic document flow (Article 9 of the Law of Ukraine "On Accounting and Financial Reporting in Ukraine").

At the same time, Article 6 of the Law of Ukraine "On Electronic Documents and Electronic Document Management" stipulates, inter alia, that an electronic signature may be used to identify the author of an electronic document. An electronic signature completes the creation of an electronic document. The subjects of electronic document management use electronic signatures and electronic seals in cases established by law or by agreement between the relevant subjects.

Electronic document management is carried out in accordance with the legislation of Ukraine or on the basis of agreements that determine the relationship between the parties to electronic document management (Article 14 of the Law of Ukraine "On Electronic Documents and Electronic Document Management").

Pursuant to parts one and two of Article 15 of the said Law, subjects of electronic document management, which carry out it on a contractual basis, independently determine the mode of access to electronic documents containing confidential information and establish a system (methods) of protection for them. Information, electronic communication, and information and communication systems that provide for the exchange of electronic documents containing state information resources or restricted information must ensure the protection of this information in accordance with the law.

In view of the above, the Ministry of Digital Transformation concludes that the legislation in the areas of electronic identification, electronic trust services and electronic document management does not impose restrictions on the use of electronic signatures generated and applied using the DocuSign service, including the signing of primary documents with such signatures, unless other specifics of legal regulation in this area are established by law or on a contractual basis.