Single tax. Violation does not always result in penalty
- Author: Andriy Buzynnyi
- Practice areas: Taxation
Legal representation in administrative cases
Participation of lawyer during inspections of controlling authorities and law enforcement agencies
- Standardized procedures: Legal representation in Ukrainian courts
- Дата публикации: 14/12/12
If a payer of a single tax has any doubts about the amount of the tax that is to be paid it would be much more beneficial to pay at least one hryvnya in time than wait for determination of the exact amount. In this case State Tax Service cannot apply sanctions for tax not being paid. Such conclusion may be made based on the State Tax Service of Ukraine clarifications contained in the letter № 2543/0/61-12/10-1115/3557 dated 26.09. 2012 (hereinafter - Letter of STS).
Letter of STS is generally dedicated to application nuances of Clause 7 Section 10 Chapter 20 of the Tax Code of Ukraine about exemption from fines for single tax payers who violated the order of tax calculation, made mistakes while filling out tax returns for a single tax or had not fully paid the single tax.
Single tax payers would be primarily interested in the fact that State Tax Service considers perfectly legitimate not to use penalties for the aforementioned violations for the entire duration of the year 2012 despite the fact that the provision of Clause 7 entered into force only on the 1st of July 2012. The background for it is completely logical – this provision is repealing the responsibility of a person under Art. 58 of the Constitution of Ukraine and is a reason to give it a retroactive effect.
The second part of the clarification appears less pleasing to the taxpayer. It specifies violations that fall under the moratorium. In this regard STS decided to interpret the legal rule rather literally thereby limiting its application.
Thus the definition "completeness of a single tax payment" could be applied to any unpaid single tax (including the complete failure to pay due to any reason). But it is not: STS makes it clear that if the taxpayer does not know the amount of tax that is to be paid he must pay at least part of it - only in this case he will avoid penalties. STS comes to this conclusion which is based on comparison of violations list embodied in the mentioned Cause 7 with a list of violations under Article 300 of the Tax Code of Ukraine.
Thus according to the Article 300 of the Tax Code of Ukraine single tax payers are responsible for the accuracy of calculations, timeliness and completeness of the single tax payment as well as the timeliness of tax returns filing. From its side the moratorium applies to the following types of violations:
- Violations in calculation of a single tax;
- Correctness of tax return filling out;
- Completeness of the single tax payment.
Comparing the two lists STS straightforwardly comes to the conclusion that payment delays and untimely filing of tax return is not subject to the moratorium. Such conclusion is logical but not perfect because it turns out that the moratorium on the penalties for incorrect filling out of tax returns is meaningless since the Article 300 does not and has never contained such a violation.
Thus due to the clarifications of the State Tax Service single tax payers got a clear understanding of where it is still possible to make mistakes during 2012. Maybe the position of the State Tax Service is not entirely logical but it is important primarily because of its similarity to insider information. It is useful to know about. And someone may even have a use of the imposed moratorium through paying only one hryvnya of the total amount in time because there are no penalties and the remaining amount can be paid later. Temporarily available money may be used for working capital.