To the question of the tax authority’s discretion regarding the right to choose the form of appeal to a court

Abstract

The article analyzes the rules of material and procedural law regulating the right of the tax authority to apply to the court. The author analyzes, in particular, Article 20 of the Tax Code of Ukraine, which as a material rule, gives supervisory authorities powers in the form of appeals to the court, but does not specify the procedural form of such appeal – with a statement or a claim, or another procedural document.

At the same time, the author states that in the procedural rules, specification may take place. Thus, the statement is a procedural form of the application of the supervisory authorities to the court in the sense of Article 283 of the Code of Administrative Proceedings of Ukraine. At the same time,

Articles 159 (as a general rule) and 268 and 269 (which establish general requirements for certain categories of urgent administrative cases, the kind of which is the case of appeals by the revenue and collection bodies in the order of Article 283 of the Code of Administrative Proceedings of Ukraine), stipulate that form of appeal to an administrative court is a claim.

Therefore, the purpose of the author’s research is to answer the question whether the tax authority has the right to choose (discretion), in which order (in general or in a special case stipulated by Article 283 of the Code of Administrative Proceedings of Ukraine) to apply to the court to stop the expense transactions of the taxpayer in the accounts of the taxpayer; to confirm the justification of administrative arrest of property of taxpayers; to grant a permit for the repayment of the entire amount of tax debt at the expense of the property of taxpayers that is in a tax pledge and on other grounds. The methodological basis of the study was the systematic method of scientific knowledge used during the study of the structure of the Code of Administrative Proceedings of Ukraine.

The study distinguishes the general procedure for proceedings and the special procedure established by Article 283 of the Code of Administrative Proceedings of Ukraine in the context of such a concept as “procedural form”. According to the author’s opinion the absence of the dispute about the right is a key component that identifies the unique paradigm of «proceeding initiated by the bodies of income and fees» in comparison with other urgent administrative cases, giving to this proceeding the signs of preliminary judicial control over the tax authorities regarding the use of the certain measures of administrative coercion towards taxpayers. The author concludes that when deciding on the choice of the form of appeal to a court, it is necessary to be guided by the principle of lex specialis. So, when deciding whether the tax authority has the right to choose procedure (general or special) to apply to a court, it is necessary to proceed from the fact that these procedures are the types of proceedings, and therefore Article 283 of the

Code of Administrative Proceedings of Ukraine is a special one and it’s application based on the principle of lex specialis derogat lex generalis. Therefore, in relation to the requirements provided for in Article 283 of the Code of Administrative Proceedings of Ukraine, the controlling authority must use such a form of appeal to a court as a statement within the time limits and in accordance with the requirements provided for in Article 283 of the Code of Administrative Proceedings of Ukraine.