VII UBA Tax Forum: International Experience and Litigation

2018-09-21

KYIV - September 21, 2018. The Ukrainian Bar Association (UBA) held the VІІ Tax Forum, devoted to the urgent and timeless issues of taxation.

The balanced program of our event was formed with the care of tax consultants and lawyers, judges, state officials, journalists and scholars.

The event officially opened Andriy Stelmashchuk, President of the Ukrainian Bar Association, and Mykhailo Smokovich, Head of the Court of Cassation in the Supreme Court, who assured the guests: "The  court does not work to fill the budget, but in order to protect honest taxpayers from tyranny of officials".

The discussion of judicial practice began in the context of recent findings from a special report by Oleksandr  Minin, a senior partner of KM Partners, who presented a brief review of the decision of the Supreme Court of the United States of 1895 to recognize the unconstitutional income tax in the United States.

Upon completion of the report, the judges discussed the topical issues of judicial practice in Ukraine in the area of ​​taxation: they analyzed the first results of the work of the Court of Cassation in the Supreme Court, talked about the representation of the interests of the state in tax disputes; judges told about the formation of the law enforcement practice in tax disputes and the peculiarities of the work of the Grand Chamber in tax disputes; touched upon the issues of access to cassation proceedings and considered the constitutional complaint as an instrument for resolving tax disputes. The moderator of the discussion was Tetyana Lisovets, Chair of the UBA Committee on Tax and Customs Law, senior partner at Sokolovsky & Partners.

Svitlana Shelest, deputy head of the Kyiv Appeal Administrative Court, explained: "There is no template and unified approach to all cases, they are all unique. The judges expect from the applicants not only the quality representation, but also the qualitative attitude to the preparation of materials. A cassation complaint must be a document  that meets the requirements of procedural law and contains well-founded claims".

"For the first time a person  received the right to question the law in terms of its constitutionality," Vasyl Lemak, Judge of the Constitutional Court, remarked, and gave advice to the participants on how to properly and effectively file a constitutional complaint.

The second session of the event was moderated by Larysa Antoshchuk, Head of the KPMG Tax Dispute Resolution Practice in Ukraine, and was devoted to the issues of international tax experience. Andriy Reun, partner, head of tax practice at Evris,  analyzed tax disputes in other countries and told colleagues what to do. As an example of real cases, the lawyer told about unusual tax disputes and the position of the court.

Natalia Blazhivska, judge of the Second Chamber of the High Administrative Court of Ukraine, President of the International Fiscal Association (IFA) in Ukraine spoke about the impact of ECHR practice on the formation of judicial practice in tax disputes.

Sergiy Ovcharov, Legal Advisor on Investment and Business Structuring of Legitimus, familiarized the audience with threats to business from the introduction of an automatic exchange of financial information for tax purposes, which will be effective next year. The lawyer warned: "Having received the status of a tax resident of another country, you do not automatically lose the status of a tax resident of Ukraine" and described the most likely risks of information exchange, including allegations of tax evasion and money laundering, disclosure of the ownership structure of foreign companies, responsibility for providing inaccurate information about the beneficiaries of Ukrainian companies, etc. The speaker described in detail ways of minimizing these risks.

Vyacheslav Kruglyak, Deputy Head of the Transfer Pricing of the Audit Department of the State Fiscal Service of Ukraine, spoke on the compliance with the transfer legislation.

The highlight of the event was a blitz interview on the latest tax law trends by Vladislav Sokolovsky, managing partner of Sokolovsky & Partners (as moderator) with Sergiy Verlanov, Deputy Minister of Finance of Ukraine.

Sergiy Verlanov told about the introduction of the tax on withdrawn capital, tax amnesty and zero declaration, liquidation of the tax militia and creation of the Financial Intelligence Service. Mr Verlanov believes that "the function of tax collection must be demilitarized, and the tax police must be disconnected from the tax administration".

Following the interview, Oleg Vdovychenko, managing partner at Vdovychen & Partners, and the leading specialists in the field of tax law, shared their findings and experience in solving current problems in the field of taxation. They talked about what could be useful for the Business Ombudsman's Council, what to expect from the introduction of currency control in Ukraine, the tax on withdrawn capital in transactions with non-residents, etc.

During the last panel discussion Anton Polianichko, chairman of the scientific council of the Association of Tax Advisersr, asked the judges about the latest judicial practice in the light of the application of new procedural codes. The topics for discussion were the legitimacy of imposition of arrest on VAT invoices; whether the existence of fault should be taken into account when applying DFS financial sanctions; appeal of orders for planned audits made by the tax ad hoc; examination by investigating judges of requests filed by tax militia, prosecutor's office; disputes with customs etc.

The meeting was also attended by: Raisa Hanova, judge of the Supreme Court, secretary of the Chamber for the consideration of cases dealing with taxes, fees and other compulsory payments of the Administrative Court of Cassation in the Supreme Court, Natalia Shvets, lawyer at Ario Law Firm, tax consultant, Marina Tomas, Head of Tax Consulting and Accounting at ADER HABER, Vitaliy Odjikovsky, Counsel at  Sayenko Kharenko, Vasyl Andrusyak, Tax Law Practitioner MORIS GROUP, Igor Olander, Judge of the Administrative Court of Cassation in the Verkhovna Rada, Volodymyr Donets, judge of the district administrative court of Kyiv, Oleksandr Markov, counsel to Redcliffe Partners, Oleksii Silyukov, judge of Solomyansky District Court of Kyiv, Roman Bregey, judge of the Kirovograd District Administrative Court, Volodymyr Donets, judge of the District Administrative Court of Kyiv.

We thank our incredible speakers and moderators, our active members and guests for participating in the event, for your intellectual contribution and an indifferent position and desire to improve the tax field.

Also, special thanks to our event partners, who provided us with financial and professional support, failing  which the event would not become a quality and democratic platform for the communication of all representatives of the legal profession, where new ideas are born.

The general partner of the event is Sokolovsky & Partners; Partners of the event: Ario Law Firm, KM Partners, Evris, Redcliffe Partners, ADER HABER, Legitimus, ID Legal Group, MORIS GROUP, Vdovychen & Partners; Session partners: Sayenko Kharenko, KPMG, NILOS.

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