Due route for judicial control of the validity of the tax seizure

Анотація

The pertinence of the research arises from the fact that in Ukrainian judicial case-law, at this point, the understanding has been established that the tax authority may, at its discretion, apply to the court to confirm the validity of the tax seizure both (at its discretion) under a special (urgent) judicial procedure (duration of less than 96 hours), and under the general rules of administrative proceedings (duration of which is about 60 days). There are also disagreements regarding the legal significance of the taxpayer’s disagreement with the fact that they committed a tax offense, which is the basis for the tax seizure of their property, for the possibility of confirming its validity under a special (urgent) judicial procedure.

Having considered these issues, the author maintains that the short period of court resolution of applications on judicial review of tax seizure is compensated by the taxpayer’s right to further appeal the tax seizure applied to them, even after its declaration to be justified. If the justification of the tax seizure was to be confirmed within several months (according to the rules of general administrative proceedings), this measure would be completely deprived of its effect.

Equally unacceptable as the article indicates is the point of view according to which the tax authority may, at its discretion, apply to the court for a judicial review of the tax seizure both under a special (urgent) judicial procedure or under the rules of general proceedings. In particular, this is due to the fact that the special (urgent) judicial procedure was devised particularly for a purpose of judicial review of tax seizure and, therefore, has a priority over the general proceedings. Additionally, the rules of general proceedings are not designed to ensure confirmation of the validity of the tax seizure within 96 hours from the moment of its application, while the absence of a court decision within this period on recognizing the seizure as justified is a basis for its termination (Article 94 (94.19) (94.19.1) of the Tax Code of Ukraine). In light of this, the author assumes that the optimal solution is to supplement the relevant provisions of the legislation on administrative proceedings with a rule that the tax authority must apply initially through a special (urgent) judicial procedure to confirm the validity of its tax seizure.