A foreign individual has a temporary residence permit in Ukraine: is such a person entitled to a tax rebate for tuition fees?

Pursuant to subpara. 166.4.1 of the TCU, a tax rebate may be granted only to a resident who has a taxpayer registration number, as well as to a resident individual who, due to his or her religious beliefs, has refused to accept the registration number of the taxpayer registration card and has officially notified the relevant supervisory authority and has a stamp in his or her passport.

The procedure for determining the residency status of an individual is regulated by subpara. 14.1.213 of the TCU, according to which a resident individual is an individual who has a place of residence in Ukraine.

If an individual also has a place of residence in a foreign country, he/she is considered a resident if such person has a place of permanent residence in Ukraine; if a person also has a place of permanent residence in a foreign country, he/she is considered a resident if he/she has closer personal or economic ties (center of vital interests) in Ukraine. If the state in which an individual has a center of vital interests cannot be determined, or if an individual does not have a place of permanent residence in any state, he or she is considered a resident if he or she stays in Ukraine for at least 183 days (including the day of arrival and departure) during the period or periods of the tax year.

A sufficient (but not exclusive) condition for determining the location of the center of vital interests of an individual is the place of permanent residence of his family members or his registration as a business entity.

In addition, a sufficient basis for determining a person as a resident is his/her independent determination of his/her main place of residence in Ukraine in accordance with the procedure established by the TCU or his/her registration as a self-employed person (subpara. 14.1.213 of the TCU).

Pursuant to part one of Article 29 of the Civil Code of Ukraine, the place of residence of an individual is the dwelling in which he or she resides permanently or temporarily.

The legal grounds for staying in Ukraine for foreigners and stateless persons are those established by the Law of Ukraine No. 3773-VI "On the Legal Status of Foreigners and Stateless Persons" dated September 22, 2011 (hereinafter - Law No. 3773).

Article 5 of Law No. 3773 stipulates that foreigners and stateless persons receive a temporary (permanent) residence permit.

Registration of foreigners and stateless persons entering Ukraine is carried out at checkpoints across the state border of Ukraine by the state border protection authorities (Article 16(1) of Law No. 3773).

The mark on the registration of a foreigner or stateless person in a passport document and/or immigration card or other documents provided for by the legislation of Ukraine is valid throughout Ukraine, regardless of the place of stay or residence of a foreigner or stateless person in Ukraine (part 2 of Article 16 of Law No. 3773).

Part 1 of Article 12 of the Law of Ukraine No. 1710-VI "On Border Control" dated November 05, 2009 (as amended) stipulates that a mark on crossing the state border is affixed to the passport documents of foreigners and stateless persons; immigration cards of foreigners and stateless persons, if their passport documents do not contain pages for marks on crossing the state border and other documents in cases provided for by law.

In cases where the above-mentioned marks are not made in the passports of foreigners when crossing the state border of Ukraine, a certificate issued by the border service authorities shall be a confirmation of the period of stay in Ukraine.

In addition, in accordance with clause 12 of part one of Article 2 of the Law of Ukraine No. 1871-IX dated November 05, 2021 (as amended) (hereinafter - Law No. 1871), registration of a person's place of residence (stay) means entering information about the person's place of residence (stay) in the register of the territorial community upon the application for registration of the place of residence (stay) submitted by the person in paper form.

A person may have only one declared or one registered place of residence (stay) at a time (part one of Article 4 of Law No. 1871).

The general requirements for declaring and registering a person's place of residence (stay) are set forth in Article 5 of Law No. 1871.

A citizen of Ukraine residing in the territory of Ukraine, as well as a foreigner or stateless person legally residing permanently or temporarily in the territory of Ukraine, are obliged to declare or register their new place of residence (stay) within 30 calendar days after arrival at the new place of residence (stay). A foreigner or a stateless person who has received a certificate of application for protection in Ukraine may register their place of residence in Ukraine (part one of Article 5 of Law No. 1871).

Thus, the documents confirming the stay of a non-resident individual in the customs territory of Ukraine for more than 183 calendar days include a passport and/or immigration card, a certificate from the Border Guard Service, as well as documents on the basis of which he or she temporarily (permanently) resides in Ukraine and documents confirming the ownership (use) of the housing designated by him or her as a place of temporary (permanent) residence in Ukraine.

The grounds for accrual of the tax discount with the indication of specific amounts are reflected by the payer of personal income tax (hereinafter - the tax) in the annual tax return on property status and income, which is submitted by December 31 (inclusive) of the tax year following the reporting year (sub-clause 166.1.2 of the TCU).

In accordance with subpara. 166.3.3 of the TCU, a taxpayer has the right to include in the tax rebate in reducing the taxable income of the taxpayer for the reporting tax year, accrued in the form of wages, reduced taking into account the provisions of para. 164.6 of the TCU, expenses in the form of the amount of funds paid by the taxpayer in favor of domestic pre-school, out-of-school, general secondary, vocational (vocational-technical) and higher education institutions to compensate for the cost of obtaining the relevant education by such taxpayer and/or a member of his/her family.

According to subpara. 166.2.1 of the TCU, the tax rebate includes expenses actually incurred during the reporting tax year by the taxpayer, confirmed by the relevant payment and settlement documents, in particular, receipts, fiscal or sales receipts, cash receipts, identifying the seller of goods (works, services) and the person applying for the tax rebate (their buyer (recipient)), as well as copies of contracts, if any, which must reflect the cost of such goods (works, services) and the payment term for such goods (works, services).

Copies of the documents specified in subpara. 166.2.1 of the TCU (except for electronic settlement documents) are provided together with the Declaration, and the originals of these documents are not sent to the controlling authority, but are subject to storage by the taxpayer during the limitation period established by the Code (first paragraph of subpara. 166.2.2 of the TCU).

If the respective expenses are confirmed by an electronic payment document, the taxpayer shall indicate in the Declaration only the details of the electronic payment document (second paragraph of subpara. 166.2.2 of the TCU).

In view of the above, a foreign individual - a personal income taxpayer, who, in accordance with the requirements of subpara. 14.1.213 of the TCU falls under the definition of a tax resident of Ukraine, is entitled to a tax rebate in accordance with subpara. 166.3.3 OF THE TCU.