Колекції наукових & навчальних творів. Автор, упорядник - канд. юрид. наук, доцент, - Марченко Віктор Борисович


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четвер, 1 квітня 2010 р.

Marchenko V.B. AN EVOLUTION OF THE LEGISLATIVE REGULATION OF SPHERE OF LEVY OF TAXES (OBLIGATORY PAYMENTS) IN UKRAINE // Proceedings the fourth world congress [“Aviation in the XXI-st century”] – K.: National Aviation University, 2010. – P. 82.22–82.25. [#022]

 

UDK: 342.743(045)

V.B. Marchenko, Candidate of Law
(National Aviation University, Ukraine)

 

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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