How to conduct inspections on compliance with currency legislation

Based on the tax information received from the NBU , the territorial bodies of the State Tax Service of Ukraine conduct documentary unscheduled inspections of residents' compliance with currency legislation, including compliance with the deadlines for settlements under export and import transactions established by the NBU.

Paragraph 75.1 of the TCU provides that the controlling authorities have the right to conduct, inter alia, documentary (unscheduled, on-site or off-site) audits.

Chapter 8 of Section II of the TCU defines the types of inspections that may be conducted by the controlling authorities, as well as the procedure and procedure for their conduct. In particular, it establishes a clear distinction between the procedure for admission to on-site and off-site inspections, as well as the place of conducting these inspections.

The grounds for conducting a documentary unscheduled on-site inspection are the receipt of tax information indicating a violation by the taxpayer, in particular, of currency legislation, the control over compliance with which is entrusted to the controlling authorities, unless the taxpayer provides explanations and their documentary evidence at the mandatory written request of the controlling authority, which indicates the violation by the taxpayer of currency, tax legislation, the control over which is entrusted to the controlling authorities, within the period of

According to the second paragraph of subparagraph 78.4 of the Tax Code, the right to conduct a documentary unscheduled tax audit is granted only if the taxpayer has been served with a copy of the order on conducting a documentary unscheduled tax audit in accordance with the procedure set forth in Article 42 of the Tax Code prior to the start of the said audit.

Officials of the controlling authorities are allowed to conduct a documentary unscheduled on-site inspection in accordance with Article 81 of the TCU (paragraph 78.5 of the TCU).

Pursuant to clause 81.1 of the TCU, officials of the controlling authority have the right to proceed with a documentary on-site inspection if there are grounds for their conduct as defined by the TCU, and subject to the presentation or sending, in cases specified by the TCU, of the following documents: a referral for such an inspection, a copy of the order to conduct the inspection, service identification (a document duly executed by the relevant controlling authority certifying the official (official) person) specified in the referral for the inspection.

It should be noted that a documentary on-site inspection is considered to be an inspection conducted at the location of the taxpayer or the location of the property in respect of which such an inspection is conducted (paragraph six of subparagraph 75.1.2 of the TCU).

At the same time, Article 79 of the TCU defines the peculiarities of conducting a documentary off-site audit.

Pursuant to paragraph 79.1 of the TCU, a documentary off-site inspection is carried out if the head (his deputy or authorized person) of the controlling body decides to conduct it and if there are grounds for conducting a documentary inspection as defined in Articles 77 and 78 of the TCU.

At the same time, paragraph 79.2 of the TCU provides that documentary unscheduled off-site inspection is conducted by officials of the controlling authority solely on the basis of a decision of the head (his/her deputy or authorized person) of the controlling authority, executed by order, and subject to delivery to the taxpayer (his/her representative) in accordance with the procedure established by Article 42 of the TCU, a copy of the order on conducting a documentary unscheduled off-site inspection and a written notice of the date of commencement and place of such inspection.

Please note that the third paragraph of clause 79.2 of the TCU stipulates that the fulfillment of the conditions of Article 79 gives officials of the controlling authority the right to initiate a documentary off-site inspection.

At the same time, a documentary off-site inspection is considered to be an inspection conducted at the premises of the controlling authority (paragraph seven of subparagraph 75.1.2 of the TCU).

Pursuant to clause 86.1 of the Tax Code, the results of inspections (except for desk and electronic inspections) are drawn up in the form of an act or certificate signed by officials of the controlling authority and taxpayers or their legal representatives (if any).

If violations are found during the inspection, including confirmation of the fact of violation of the deadlines for settlements under export-import transactions, an act is drawn up.

If there are no violations, a certificate is issued.

If the taxpayer or its representatives disagree with the conclusions of the audit or the facts and data set forth in the audit report (certificate), they have the right to submit their objections and additional documents and explanations, including, but not limited to, documents confirming the absence of guilt, the existence of mitigating circumstances or circumstances exempting from financial liability in accordance with this TCU, to the controlling authority that conducted the audit of the taxpayer within 10 business days from the day following the day of receipt of the report (certificate) (clause 86.7

Pursuant to subparagraph 86.7.1 of the Tax Code, the audit report, objections to the audit report and/or additional documents and explanations, if submitted by the taxpayer in accordance with the procedure specified in this paragraph (hereinafter referred to as the audit materials), are considered by the commission of such controlling authority for consideration of objections and explanations to audit reports (hereinafter referred to as the commission for consideration of objections), which is a permanent collegial body of the controlling authority. The composition of the commission and the procedure for its work shall be approved by an order of the head of the supervisory authority.

The commission for consideration of objections of the controlling authority reviews the audit materials and sends a response to the taxpayer in accordance with the procedure set forth in Article 42 of the TCU.

It should be noted that in accordance with subparagraph 86.7.4. of the TCU, when considering the audit materials, the commission on consideration of objections shall adopt a conclusion that is an integral part of the audit materials.

The audit materials include: the audit report (certificate) with informative annexes that are its integral part; objections to the audit report (certificate); explanations and their documentary confirmation provided by the taxpayer in accordance with subparagraph 16.1.15 of the Tax Code.

It should also be noted that the audit report is only a carrier of information established during the audit and does not violate the taxpayer's rights. At the same time, the conclusions of the tax authority based on the results of the audit set forth in the relevant act do not give rise to certain legal consequences for the business entity and do not change the financial and economic situation of the payer.

Pursuant to clauses 58.1 and 86.8 of the Tax Code, the tax authority shall issue a tax notice-decision on the basis of the audit report.

At the same time, in accordance with subparagraph 86.7.5 of the TCU, a tax notice-decision is issued by the head (his deputy or authorized person) of the controlling authority on the basis of the conclusion of the commission of the controlling authority on consideration of objections within five business days following the day of adoption of such conclusion by the commission and provision (sending) of a written response to the taxpayer, in accordance with the procedure specified in subparagraph 86.7.1 of this paragraph.

In addition, paragraph 56.1 of the TCU stipulates that decisions made by the controlling authority may be appealed in administrative or judicial proceedings.