UDK: 342.743(045)
AN EVOLUTION OF THE LEGISLATIVE REGULATION OF SPHERE
OF LEVY OF TAXES (OBLIGATORY PAYMENTS) IN UKRAINE
Assertion and providing human
rights and freedoms the Ukrainian state proclaimed in 1996 as the main duty,
fixing this position in the article 3 Constitutions of Ukraine. In accordance
with the noted article human rights and freedoms and their guarantees are
determined by maintenance and orientation activity of the state for which the
last answers before a man.
In relation to a tax sphere, where the article of consideration from point of rights of personality it is been, foremost, as rights legal interests of taxpayer, in literature the mechanism of providing is formulated right legal interests of taxpayer. This mechanism is examined as a system of terms, facilities, methods and methods which provide realization of subjective possibilities of taxpayer in relation to application of protective, protective and restoration measures the organs of government tax service, by their public and official servants in relation to the broken rights and legal interests of taxpayer by application of financial and judicial norms.
Such mechanism contains:
a) guarantees of realization of
equitable rights and legal interests of taxpayers;
b) system of organs of government
tax service, their public and official servants;
c) legal elements of mechanism of
realization right legal interests of payers of tax;
d) a process of practical
embodiment of possibilities and necessities is in public relations, which arise
up, develop and halted in the field of taxation;
e) terms and factors which are
instrumental in functioning of such process.
Right basis of mechanism of
providing and legal interests of taxpayers there are administratively-legal
facilities among which one of leading places occupies proper normatively legal
base. Whether legislative activity of the state in the field of collection of
taxes answers to the proclaimed sending to providing of rights for personality
in this sphere.
Forming of legislative base in
relation to the levy of taxes in Ukraine passed certain| historical
development.
One of the legislative steps in
determination of organization and activity of public tax organs of Ukraine was
become by passing an Act of Ukrainian SSR „About government tax service in
Ukrainian SSR” from Decembers, 4 of 1990р., what brought in the row of
innovations. At first, were borne change to організаційно-правового status of
tax organs. In accordance with the article 1 under the name „Structure of
government tax service it was set in Ukrainian SSR”, that government tax
service in Ukrainian SSR is created at Council of Ministers of Ukrainian SSR in
composition the Main state tax inspection of Ukrainian SSR and state tax
inspections on areas, districts, cities and districts, in cities. That,
government tax service was shown out of the system of Ministry of finance of
Ukraine. At the same time, as see, in a new law was stored and fastened
structure of organs of government tax service from three levels, which can be
de bene esse designated as central, regional and local or base.
The normative structure of
determination of activity of tax organs tested changes, that, next to rights a
task and functions of organs of government tax service was determined in a new
law also. Yes, the normative structure of activity of organs of DPS purchased
three-unit configuration: task – functions – rights. In accordance with the
article of 2 Laws from Decembers, 4 in 1990 the main tasks of state tax
inspections were determined as providing of inhibition of legislation about
taxes, complete account of all of taxpayers and other obligatory payments in a budget,
realization of control and providing of rightness of calculation and payment of
these payments.
The system of normative functions
of organs of DPS was differentiated in accordance with hierarchical structure
of these organs. The article of a 8 Law laid the systems of organs of DPS on a
central level, that on the Main state tax inspection of Ukrainian SSR functions
essence of which in the generalized kind it is possible to expound as follows:
1) control after inhibition of tax
legislation and after the order of carrying on individual labour activity;
2) perfection of tax legislation;
3) lawmaking is in relation to
application of tax legislation;
4) development of forms of
documents is in relation to a calculation and payment of taxes;
5) tax elucidations;
6) organization of work is in
relation to the thriftless, inherited the state property and treasures
confiscated; organization of control is in relation to a state duty and cash
operations of executive committees of local Advices in relation to acceptance
of tax payments;
7) control of work of state tax
inspections of all of levels;
8) professional preparation and
retraining of shots;
9) automation and computerization
of state tax inspections.
In accordance with the article of a
9 Law from Decembers, 4 in 1990 in relation to state tax inspections on areas
and cities it was set with a district division, that they carry out functions
in relation to functions, foreseen in the article of a 8 Law. That, on the
whole the functions of this level were certain as analogical the functions of
central level. Marked thus, that in the cases when state tax inspections are
indicated directly carry out control after the payers of taxes or other
payments in a budget, they execute those functions in relation to these payers,
that and state tax inspections on districts in cities and cities without a
district division. In relation to a base level in accordance with the article
of a 10 Law from Decembers, 4 of 1990р. it was set that state tax inspections
are on districts, districts in cities and cities without a district division
execute functions essence of which in the generalized kind it is possible to
expound thus:
1) control is after inhibition of
tax legislation;
2) account of taxpayers and
providing of rightness of calculation of payments;
3) control of timeliness of
presentation and authenticity of documents is in relation to payment of taxes;
4) control of inhibition of
legislation is about individual labour activity;
5) application of financial approvals
and administrative fines;
6) passing to law enforcement
authorities of materials is about the facts of criminal offences, presentation
of lawsuits, about the penalty of facilities, got without the grounds set a
law;
7) get documents about the sums of
taxes which are subject payment and actually entered budget, included in the
informative systems, related to the enterprise;
8) work is in relation to the
thriftless, inherited the state property and treasures confiscated;
9) examine statements, suggestions
and complaints.
Introduction of administratively-legal
backer-ups rights for payers is related not only to the tax organs but also
with the due settlement of procedures of levy of taxes. In this context one of
the first documents was accepted on January, 21 in 1993 Decree of Cabinet
Ukraine „About the penalty of the taxes and untax payments” to which were borne
row of innovations in the tax legislation of Ukraine not borne in time, which
touched the order of administration of obligatory payments directly. First the
concept of organs of penalty was entered in a tax legislation, their list and
limits of jurisdiction is certain. A decree was inculcate the concept of
arrears, as the unborne sum of the proper payments upon termination of the set
terms of their payment, and extra charge of fine at the penalty of this
arrears. Any terms of remoteness were abolished at the penalty of arrears after
taxes, tax credit and other payments in a budget and off-budget funds. The
organs of penalty were conferred the right indisputable penalty of arrears on
the proper payments which was included in their jurisdiction.
The value of this Decree consists
in that he, in spite of all of the imperfection from point of present, became
the first document of level of law which pawned judicial bases of order of
administration of tax debt normatively, and on the whole, bases of order of
administration of taxes. On the whole it is possible to say that Decree was a
prototype and put in the first approaching questions which in subsequent were
developed Law of Ukraine „On the order of redemption of obligations of
taxpayers before budgets and state having a special purpose funds”, he lost an
action with acceptance of the last Law actually and.
Considerable place in forming of
the system of tax administration was taken the by Decree of President of
Ukraine from March, 4 in 1998 № 167 „About measures on the increase of
responsibility for calculations with budgets and state having a special purpose
funds”, which a concept and order of application of tax mortgage was first
inculcated in accordance with. A decree, in particular, set that from the day
of origin of tax debt all of property and property rights for a taxpayer, and
in relation to a physical person – subject of entrepreneurial activity –
property and property rights which are utillized them for the course of
business are in a tax mortgage, except for property and property rights, that
in accordance with a law can not be the article of mortgage, and capital assets
of enterprise, acknowledged in the set order a public enterprise.
A noticeable role in becoming of
the system of administration of taxes was played also by Decree of President of
Ukraine from July, 23 in 1998 № 817 „About some measures on deregulation of
entrepreneurial activity”. A decree was determine terms and order of
realization of the planned and not provided for by the plan verifications of
financially economic activity of subjects of entrepreneurial activity. The
circle of organs of executive power was set, including the organs of government
tax service, powerfull, on behalf of the state to carry out such verifications
and limits of their jurisdiction.
Substantial influence on forming of
the system of tax administration was rendered by Decree of President of Ukraine
from June, 28 of 1999 № 754 „About the order of redemption of obligations of
taxpayers before budgets and state having a special purpose funds” to which
Statute was ratified about the order of redemption of obligations of taxpayers
before budgets and state having a special purpose funds. And although Decree
was actually declined Decision of Supreme Rady Ukrainy from September, 16,
1999, however much he became the prototype of the of the same name law known
under a number 2181 accepted soon in essence, which actually, and developed
positions, stopped up afore-named Decree.
The system of administration of taxes tested
substantial reformation in connection with taking Law of Ukraine over December,
21 in 2000 № 2181 „About the order of redemption of obligations of taxpayers
before budgets and state having a special purpose funds”. This document, in
essence first, expressly outlined as such system, mechanism of administration
of taxes in Ukraine. Without an overstatement, Law of Ukraine „On the order of
redemption of obligations of taxpayers before budgets and state having a
special purpose funds” is today basis of the system of tax administration in
Ukraine. By a law from December, 21 in 2000 № 2181 were borne row of
substantial changes and in Law of Ukraine „On government tax service in
Ukraine”, in particular, a right for the organs of DPS to stop the operations
of taxpayers for accounts in establishments of banks, other financial-credit
establishments is withdrawn, a right to apply financial approvals in the modified
kind is carried in Law 2181, a right for the indisputable penalty of facilities
is withdrawn, rights for a tax militia are specified.
On the certain stage the role of
financial institutions was substantially enhanceable in the process of
administration of taxes. So by Law of Ukraine from June, 5 in 2003 were borne
change in Law of Ukraine „About the system of taxation”, in accordance with
which financial institutions were obligated to open account the payers of taxes
and collections (obligatory payments) only on condition of producing by them
document which confirms taking them on an account in the organ of government
tax service. Financial institutions were also obligated:
– to message about closing of
account of payer of taxes and collections (obligatory payments) – legal entity
or physical person – subject of entrepreneurial activity to the organ of
government tax service, in which taxpayer is on an account;
– to begin expense operations on
the account of taxpayer – subject of entrepreneurial activity (except for a
bank) from the date of receipt financial institution of the documentarily
confirmed report of organ of government tax service about registering of account
in the organs of government tax service;
– to give the organs of government
tax service upon their writing request of list about a presence and motion of
facilities on current and holdings (deposit) accounts of taxpayers – clients of
these establishments in an order, set a law.
Next stage of development of the
legislative adjusting of process of administration of taxes, which is signified
passing an Act of Ukraine from January, 12 in 2005 № 2322, it is possible to
describe as strengthening of legal defense of citizens in the field of levy of
taxes. Substantial rich in content and structural changes were borne in rights
for the organs of DPS, as a result the article 11 Law of Ukraine „On government
tax service in Ukraine” was expounded in a new release. So, a right to inspect
apartments which are utillized as a legal address of subjects of
entrepreneurial activity was withdrawn, and also for the receipt of profits.
From maintenance of the article 11 compositions of administrative offences were
withdrawn. Actually speech went not about abolition of administrative
responsibility at violation of tax legislation as such, but about certain
modification and transference of the legislative adjusting of this
responsibility in the complement of Code of Ukraine about administrative
offences.
One of the most substantial
additions, which was borne Law from January, 12 in 2005 № 2322 to Law of
Ukraine „On government tax service” touched the order of leadthrough of tax
verifications, in connection with what the last law was complemented such
articles:
– article 11-1. Grounds and order
of leadthrough of government tax service of the planned and not provided for by
the plan departure verifications of timeliness, authenticity, plenitude of
extra charge and payment of taxes and collections organs (obligatory payments);
– article 11-2. Terms of admittance
of public servants of organs of government tax service are to the leadthrough
of the planned and not provided for by the plan departure verifications.
Summarizing, maybe, that
development of adjusting of sphere of levy of taxes in modern Ukraine from
point of maintenance and character of administratively-legal facilities of
influence on tax relations it is possible de bene esse to divide into two
stages. First from them, which engulfs a period to passing an Act № 2181 at the
end of 2000 and marked the increase of the forced aspects of plenary powers of
tax organs, it is possible to describe as an attempt of mainly direct power
decision of problems of filling with of budget taxes. However much such
approach, obviously, could not be effective, besides provoked social and
political tension in society.
It is possible to consider
acceptance of December, 21 beginning of period of liberalization of the administratively-legal
mode of levy of taxes in 2000 to the law № 2181, which in particular, a right
for the organs of DPS to stop the operations of taxpayers for accounts in
establishments of banks, other financial-credit establishments, and also right
for the indisputable penalty of facilities, was withdrawn, rights for a tax
militia are specified and others like that. Liberal reforms in the direction of
strengthening of legal defense of citizens in the field of levy of taxes were
prolonged Law of Ukraine from January, 12 in 2005 № 2322, in accordance with
which, in particular, a right for the organs of DPS to inspect apartments which
are utillized as a legal address of subjects of entrepreneurial activity was
withdrawn, and also for the receipt of profits, the legislative adjusting of
administrative responsibility for violation of tax legislation was carried from
Law „On government tax service in Ukraine” in the complement of Code of Ukraine
about administrative offences.
On the whole passing an Act of
Ukraine „About the order of redemption of obligations of taxpayers before
budgets and state having a special purpose funds”, in our view, played a key
role in administratively-legal adjusting of sphere of levy of taxes. This
document, in essence first, outlined the mechanism of administration of taxes
in Ukraine, system of organs of administration of taxes (supervisory organs)
and for today is normatively judicial basis of the system of tax administration
in Ukraine. It should be noted that considerable place in becoming of the
system of the administratively-legal adjusting of sphere of levy of taxes in
Ukraine played „lawmaking” ofPresident of Ukraine, which in our view, was the
substantial catalyst of development of the proper lawmaking processes and
becoming of the today's system of the legislative adjusting of sphere of levy
of taxes. On the whole, the evolution of administratively-legal facilities of
sphere of levy of taxes goes in direction each time of the greater working out
in detail of legislative orders, especially, in respect of order of redemption
of tax obligations, plenary powers of organs of tax service. On the whole
development of the administratively-legal adjusting of sphere of levy of taxes
answers proclaimed Constitution of Ukraine to sending to assertion and
providing of human rights.
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