The Kyiv District Administrative Court upheld the legal position of DEGA Partners lawyers in dispute between the Client-Individual Entrepreneur and the Main Department of the State Tax Service in Kyiv Oblast in the case of declaring illegal and revoking Tax Notices-Decisions.
Thus, as a result the Chief State Auditors-Inspectors of the Main Department of State Tax Service in Kyiv region actually inspected compliance with established requirements by the legislation of Ukraine in the field of production and circulation of excisable products, the defendant issued Tax notifications-decisions which:
According to Art. 1 of Law of Ukraine, license (special permit) – a document of the state standard, which certifies the right of an economic entity (including a foreign economic entity operating through its registered permanent establishment) to conduct one of specified activities in this Law during a certain period. At the same time, requirements of Law of Ukraine determine the annual validity of licenses and do not establish a rule on the beginning and end of the license and the procedure for its calculation.
According to Part 1, 2 Art. 251 of the Civil code of Ukraine, term in the certain time period with which expiration the action or event which has legal value is connected, term is the certain moment in time with which occurrence the action or event which has legal value is connected.
According to Art. 252 of the Civil code of Ukraine, the term is defined by years, months, weeks or hours. The term is determined by a calendar date or an indication of an event that is imminent.
If the term is set for the commission of an action, it may be committed before the end of the last day of the term (part one of Article 255 of the Civil Code of Ukraine).
According to the first part of Article 3 of European Convention on Time Limitation (ETS № 76) of 16 May 1972, periods calculated in days, weeks, months and years begin at midnight (dies a quo) and expire at midnight (dies ad quem). For the purposes of Article 2 of this Convention, the term “dies a quo” means the day on which the period begins, and the term “dies ad quem” means the day on which that period expires.
Thus, the term of the license for the right to retail alcoholic beverages is determined by an indication of the calendar date, a specific day, which is clearly indicated in the license.
In view of the above instructions, the last day of retail trade in alcoholic beverages under the License for the right to retail trade in alcoholic beverages (beer) is the calendar date until which the License expires, because this calendar date is an event of legal significance, namely, the expiration of the license and up to 24 hours that day.
In this case, the preposition “to”, along with the date specified in the License, refers to the definition of the license term. In addition, the preposition “to” in Ukrainian language is used to denote the final calendar date of validity or the need to perform a certain action in the sense of “inclusive”.
2. Regarding the alcoholic beverages storage without the excise tax stamp of the established sample
According to Article 11 of Law of Ukraine “On State Regulation of Production and Circulation of Ethyl Alcohol, Cognac and Fruit, Alcoholic Beverages and Tobacco Products”, alcoholic beverages and tobacco products produced in Ukraine, as well as those imported into Ukraine are marked with excise stamps in the manner prescribed by law.
According to paragraph 226.1 of Article 226 of the Tax Code of Ukraine, all alcoholic beverages are marked with excise tax stamps in such a way that during uncorking (opening) excise tax stamps are torn (damaged).
No legal act obliges taxpayers to keep torn excise tax stamps after uncorking (opening) the goods, because it is obvious that due to the purpose of marking and technology of gluing excise tax stamps, opening a bottle or other container for t alcoholic beverages sale for bottling excludes the preservation of the stamp of excise tax of the established sample on the bottle or other container.
According to the results of the court session of the Kyiv District Administrative Court, the claim of the Individual Entrepreneur to the Main Department of the State Tax Service in Kyiv Region was satisfied in full – Tax notifications-decisions were declared illegal and canceled.
Therefore, thanks to highly professional work of the DEGA Partners team, the taxpayer’s rights have been properly restored.