Documentary Confirmation of a Complaint Against the Supplier

Автор: admin_dev

Дата оновлення: 17 February 2014

We have repeatedly raised the issue of preserving tax credit by filing a complaint against the supplier.

The VASU, in its letter dated October 24, 2013, devoted time to answering questions about errors that arise during the procedure of registration or subsequent correction of tax invoices in the ERNN register, when the cause of the error is incorrect information about the seller’s location.

The negative consequences of such errors are borne by the buyer, so attention should be paid to the approach to determining the deadlines within which documents confirming the fact of delivery or sale must be submitted, since it is these documents that give the right to receive tax credit.

The Tax Code of Ukraine contains a provision allowing the buyer to attach to the declaration a complaint against the seller/supplier if that party:

• Refused to provide a tax invoice;
• Provided a tax invoice, but it contains errors, or the procedure for registering the invoice in the ERNN has been violated;

In such cases the complaint serves as a basis for including the tax amounts in the tax credit. The continuation of that provision speaks about the necessity to submit an attachment to the complaint in the form of supporting documents, for example, a copy of a sales receipt, which would attest to the fact of payment of the tax for the purchased good or service. The buyer may also provide copies of primary documents that meet accounting requirements and evidence receipt of the goods or services.

The above-mentioned complaint is submitted in two ways:

• Using electronic communication means;
• All documents in paper form are sent by mail to the appropriate government authority;

However, the deadline for submitting documents that confirm the legitimacy of the complaint is not regulated at the legislative level. In practice there are two common opinions on this issue: the supporting documents are submitted within the period established for filing the VAT declaration with the attached complaint, or they can be provided later.

Tax officials maintain the view that all documents should be submitted simultaneously, because only the presence of supporting documents provides grounds for considering the complaint, as well as for reconciling the tax credit figures shown in the declaration during the desk audit.

To refute such an approach, it is worth considering two points:

First, the desk audit is not conducted immediately after receiving the declaration, but within 30 days after the deadline for submitting the declaration.

Second, tax legislation does not contain direct requirements regarding the deadline for submitting supporting documents. That is, no one prohibits submitting them together with the complaint and declaration, or separately. There is not even a hint that the documents must be submitted to the tax authority before the desk audit. Only by using common sense can one assume that all necessary documents and their confirmations should be in the tax authority’s possession at the time of the audit.

Analyzing the case law of administrative courts of appeal and everything said above, the following position of the court emerges during the consideration of the dispute:

• The fact that the declaration was filed electronically while the supporting documents were submitted in paper form will not be recognized as a violation of current legislation.
• The fact of later submission of supporting documents does not contradict current legislation, and the complaint is recognized by the court as a basis for including the paid tax in the tax credit. But only if the declaration, complaint and documents proving the purchase were provided to the tax authority within a reasonable time for preparing the desk audit.

The court’s position can be examined in detail in the rulings of the KAAS in cases №826/1366/13-а and №2а-15171/12/2670.