Ianushevych Ia.V. Institutional mechanism for ensuring the sphere of taxation in Ukraine. – Qualifying scientific work on the rights of the manuscript.
The dissertation on competition of a scientific degree of the doctor of legal sciences on a specialty 12.00.07 – administrative law and process; finance law; information law. – Zaporizhzhia National University, Zaporizhzhia, 2021.
This thesis is one of the first holistic comprehensive researches in the domestic administrative and legal science dealing with the institutional framework for ensuring the taxation sphere in Ukraine.
It substantiates a conceptual approach, according to which the sphere of taxation as a specific object of legal regulation is determined by existing tax legal relations, covers the entire spectrum of public relations that are regulated by rules of law and that arise, modify and terminate when there is a legal connection arising between taxpayers and a power entity in the form of a tax body or between a tax authority and its territorial divisions in the state financial activity sphere regarding the payment of taxes, fees and other mandatory payments to the state and local budgets, as well as to public trust funds, and which have a public power-property nature.
It is established that legal regulation of the taxation sphere is a purposeful influence of the rules of law on public relations, the content of which is to ensure timely payment of funds in the form of taxes and other mandatory payments to budgets and other central funds in order to ensure the public interest and sustainable functioning of the civil society and state.
The features inherent in tax legal relations are identified, namely: 1) they are a type of financial relations regulating the process of formation, distribution and use of cash funds; 2) they arise between legally unequal subjects; 3) they ensure the public interest of all members of society; 4) they are characterised by a property (monetary) aspect. It is determined that the structure of tax legal relations consists of such elements as subject, object and content. The author draw attention to the fact that the subject of tax law turns into a real participant in tax legal relations, if they have a special legal property – tax legal personality, which combines tax legal capacity, tax capacity and tax delictual dispositive capacity. It is noted that subjects of tax legal relations do not acquire elements of tax legal personality simultaneously, which is primarily due to their legal status.
It is proved that the institutional framework for ensuring the taxation sphere provide for a way of organising and implementing the activities of the public administration subjects authorised to streamline and create appropriate conditions for paying taxes, fees and other mandatory payments, which is aimed at reaching public interest.
It is established that the public administration subject whose functioning is a significant element of institutional framework for ensuring the taxation sphere is the bearer of power to carry out executive and administrative activities and provide administrative services during the administration of taxes, fees and other mandatory payments to the state and local budgets, as well as to public trust funds.
Depending on the scope of powers granted to the public administration subjects, groups of subjects ensuring the taxation sphere are distinguished as follows: 1) entities that provide institutional support at the national level (Cabinet of Ministers of Ukraine, Ministry of Finance of Ukraine, State Tax Service of Ukraine, State Customs Service of Ukraine, public councils under governmental bodies of national importance, all-Ukrainian public organisations, the Verkhovna Rada of Ukraine, the president of Ukraine, the National Bank of Ukraine, and the Verkhovna Rada Commissioner for Human Rights) and 2) entities that provide institutional support at the local level (territorial bodies of the State Tax Service of Ukraine and the State Customs Service of Ukraine, local state administrations, local self-government bodies, public councils under local authorities, local public organisations, the Verkhovna Rada of the ARC, and military-civil administrations).
The role of state executive authorities of national importance in the sphere of taxation is analysed by highlighting the substantial and meaningful characteristics of: 1) the Cabinet of Ministers of Ukraine; 2) the Ministry of Finance of Ukraine; 3) the State Tax Service of Ukraine, the State Customs Service of Ukraine, etc.
It is stated that the Ministry of Finance of Ukraine, being the central
body of the executive power in charge of the formation and accomplishment of the state tax policy plays a key role in the taxation sphere. It has been established that the taxation policy presents the activity of the state through a set of measures realized by the duly authorized public administration bodies in the sphere of taxes and charges that reflect classification of taxes, methods and principles of taxation that legally function in the taxation system of Ukraine.
It has been emphasized that the Ministry of Finance of Ukraine, being a participant of the tax legal relations, was granted the appropriate legal status which peculiar features are manifested in its structural components: 1) principles of functioning; 2) objective and tasks; 3) object of activity; 4) competence; 5) functions; 6) authority; 7) decision-making procedure.
It has been stated that the Ministry of Finance of Ukraine, being a subject of the tax relations works at ensuring transparency and plainness of the taxation policy of Ukraine. It is stressed that international cooperation is the important aspect of activities of the Ministry of Finance of Ukraine as a subject of the tax relations. With a view of stabilization of the Ukrainian taxation policy, facilitation of the implementation of the structural reforms and establishment of the basis for the sustainable economic development, the Ministry of Finance actively cooperates with bilateral and multilateral partners of Ukraine.
Analyzed is the role of civil and military administrations as the entities
of public administration in supporting the taxation sphere in Ukraine and outlined are the statutory provisions that characterize them.
It has been defined that the civil and military administrations are interim state bodies entrusted with the authority of the local executive bodies and local self-government bodies within the borders of the temporary occupied territories in the region of the armed aggression of the Russian Federation, in particular, in the zone of anti-terrorism operation (ATO), with a view of administration, assurance of stability and economic welfare of population as well as for supporting the taxation sphere.
The author studied peculiarities of the legal standing of the civil and military administrations which mean that the civil and military administrations are a specific body of the state characterized by a cross-subordination: to the Anti-Terrorism Centre at the Security Service of Ukraine (as regards the legislative consolidation and specificity of the performed function in the ATO zone); the Cabinet of Ministers of Ukraine (by vertical subordination of the functions performed by state administration of the appropriate district or region); the President of Ukraine (due to his establishment of the civil and military administrations and appointment of their heads); and the Verkhovna Rada of Ukraine (as regards accomplishment of the civil and military relations). It has been emphasized that said subordination considerably and essentially complicates the processes of task performance by a public administration body, however, such subordination is objectively obligatory taking into consideration and complexity of the ATO in the territory of Ukraine.
It has been established that the civil and military administrations, being
the entities that control the taxation sphere in the legally indicated instances, are authorized: to set up the local tax rates and charges in compliance with the Tax Code of Ukraine; and to make decisions as to exemptions in the legally indicated instances that concern payment of local taxes and charges.
The thesis describes the place and role of public administration subjects that are not classified as state executive and local self-government bodies, but which are endowed with separate powers to ensure managerial influence on the taxation sphere in Ukraine (the president of Ukraine, the National Bank of Ukraine, and the Verkhovna Rada Commissioner for Human Rights).
It has been established that a detailed study of the legal status of the President of Ukraine makes grounds to assess it not only in terms of a representative of the presidency institution but also as a full-fledged public administration subject.
It has been emphasized that the value-based and functional assignment of the President of Ukraine in the state and society becomes clear through his place in the state power system of Ukraine and is characterized by the following: it does not belong to the legal or executive or judicial powers an occupies a special, independent place in the state mechanism, however, according to the content of his authority, the President of Ukraine is closer to the executive power; the power of the President of Ukraine is derived from the people of Ukraine that is a carrier of sovereignty and the only source of power in Ukraine, which ensures the formal independence of the President of Ukraine from other supreme bodies of the state power; provides for the unity of the state power and state policy, and integrity of the state mechanism; is an equal subject of the state power system; and is obliged to act on the basis, within the limits of authority and by the way envisaged by the Constitution and laws of Ukraine.
It is proved that the President of Ukraine occupies a special place in the institutional mechanism supporting the taxation sphere because he is the subject that does not refer to the state executive bodies and local self- government bodies but has separate powers of the management influence in said sphere and performs the institutional support of the taxation sphere at the national level.
The forms of participation of civil society institutions in ensuring the taxation sphere are identified and analysed, namely: 1) conducting public consultations; 2) forming public councils under the State Tax Service of Ukraine and the State Customs Service of Ukraine and ensuring their functioning; 3) conducting public inspection; 4) considering citizens’ appeals.
It has been proved that extension of the legal determination of the interrelations between the state and civil society institutions provides for a wide range of juridical and organizational mechanisms that develop and accomplish the tax policy of the state. It has been established that interaction between the public administration entities and the civil society institutions at the national level is a pre-requisite of the recognition of Ukraine as a rule-of- law and democratic state.
It has been stated that the system of normative and legal acts, making the basis for activity of the civil society institutions in the taxation sphere, is based upon the normative and legal acts that determine: а) juridical principles of establishment, rights and guarantees of the civil society institution activities and b)forms of participation of the civil society institutions in the management of state affairs. The methods to improve certain aspects of the involvement of said civil society institutions in support of the taxation sphere in Ukraine through amending the normative and legal acts of different levels are proposed.
Attention is paid to the fact that in terms of the taxation sphere the subject of the public expertise of a state executive body activity should be the drafts of the normative acts that concern: 1) adherence to the rights, freedoms and lawful interests of people and a citizen in the taxation sphere; 2) state of performance of the national and local programs financed out of the state budget by the authorized entities; and 3) adherence to the legal regulations by the authorized entities.
The necessity and expediency of preparation of and amendments to the
Standard statute of the public council at the ministry, other central body of the executive power, Council of Ministers of the Autonomous Republic of Crimea, regional. Kyiv and Sevastopol city, district and district in Kyiv and Sevastopol state administrations were proved. This should be achieved by implementing the imperative norm to be taken into account by the authorities that ensure tax and customs policy, expert proposals of the public councils elaborated by the results of discussing the drafts of the normative and legal acts at the sessions of the appropriate public body.
The role and features of the functioning of the central executive body territorial sections implementing the state tax policy, local self-government bodies and the main characteristics of local state administrations as substantial elements of the institutional framework for ensuring the taxation sphere in Ukraine are shown.
It has been stated that the customs stations as a consistent element of the institutional mechanism that supports the taxation sphere of Ukraine, play a role of the control bodies as regards adherence to the legislation of Ukraine concerning customs affairs and taxation. This assertion is based upon the provisions contained in item 6, part 2 of Art. 544 of the Customs Code of Ukraine which states that the customs stations perform the tasks aimed at levying tax payments, control of their correct calculation, timeliness and completeness of their payments, application of the methods for their forced levying within the authority defined by the Tax Code of Ukraine and other legal acts of Ukraine, organization of applications of guarantees of the customs tax payments and interaction with banking institutions and independent financial intermediaries that issue such guarantees; Art. 41 of the Tax Code of Ukraine which prescribes that the customs bodies (the central executive authority that accomplishes the state customs policy, and its territorial bodies) are the control bodies in charge of adherence to the customs legislation and taxation, excise tax, value added tax and other taxes and charges that are levied in connection with import (carriage) of the goods in the customs territory of Ukraine or the territory of the free customs zone, or export (carriage) of the goods out of the customs territory of Ukraine or the free customs zone territory.
Attention has been paid to the normative base of the customs stations as a consistent element of the institutional mechanism for supporting the taxation sphere in Ukraine in compliance with the provisions of the Customs Code of Ukraine and the Tax Code of Ukraine.
It is emphasised that currently the system of territorial bodies of the State Tax Service of Ukraine on the ground includes: 1) the Regional Central Departments of the State Tax Service of Ukraine; 2) the Central Department of the State Tax Service of Ukraine in Kyiv; 3) the Interregional Departments of the State Tax Service of Ukraine for Work with Large Taxpayers; and 4) Information and Reference Department of the State Tax Service of Ukraine. At the same time, the Interregional Departments of the State Tax Service of Ukraine for Work with Large Taxpayers are the territorial bodies formed with the rights of separate divisions of the State Tax Service of Ukraine, ensure the implementation of the powers of the State Tax Service of Ukraine in relations with large and other payers who are registered with them, and carry out their tax support.
It is established that the Interregional Departments of the State Tax Service of Ukraine for Work with Large Taxpayers were created as part of the ongoing institutional reform in order to change the format of work with large taxpayers. At the same time, the sectoral principle of supporting payers has remained unchanged, and the distribution currently depends on the payer’s field of activity. In particular, the departments for administration of industrial and non-industrial enterprises and financial institutions are distinguished.
The article examines the legal status of the main directorates of the State Tax Service of Ukraine as territorial bodies formed with the rights of separate divisions of the State Tax Service of Ukraine. It is established that the main directorates of the State Tax Service of Ukraine in the regions and in City of Kyiv are state authorities, have separate Balance Sheets, accounts with bodies providing treasury services to budget funds, a seal and a letterhead with their name and image of the state emblem of Ukraine, and are the administrators of budget funds. At the same time, they are currently functioning without the status of a legal entity.
Attention is focused on the impossibility of defining the list of tasks for
the main directorates of the State Tax Service of Ukraine clearly, although at the legislative level, an attempt has been made to synthesise such tasks. This is explained by the fact that the established list is rather conditional and controversial from the theoretical point of view as there is no single approach to the correlation of concepts «functions», «powers», «tasks», «goal» and «competence» of executive authorities either in theoretical developments or in the provisions of the current legislation of Ukraine. At the same time, the problem of uncertainty and vague legal consolidation of the tasks for main directorates of the State Tax Service of Ukraine as territorial bodies of the State Tax Service of Ukraine is one of the weakest points of their organisation and activities.
It is proved that constant counter versions regarding the activities of tax authorities in a particular status or in a particular official plane do not benefit the approval of an institutional framework for ensuring the taxation sphere in Ukraine. At the same time, it seems that the effectiveness and efficiency of the functioning of the system of tax authorities including territorial bodies of the State Tax Service of Ukraine are closely related to the degree and affiliation of legal regulation not only of the procedure for their formation, liquidation or reorganisation, but also of the procedure for their activities.
It is established that the Information and Reference Department of the
State Tax Service of Ukraine is a territorial body of the latter, and has become the legal successor of all the rights and obligations of the Information and Reference Department of the State Tax Service of Ukraine, which has been reorganised as a legal entity.
The article characterises the place and role of the Information and Reference Department of the State Tax Service of Ukraine within the institutional framework of taxation in Ukraine, reveals main characteristics of the latter as an informative element of the institutional mechanism for ensuring the sphere of taxation.
It is emphasised that in contrast to the main directorates of the State Tax Service of Ukraine and Interregional Departments of the State Tax Service of Ukraine for Work with Large Taxpayers as territorial bodies of the State Tax Service of Ukraine, which are recognised as controlling bodies (tax authorities, collection bodies), the Information and Reference Department of the State Tax Service of Ukraine has been recognised as a controlling body (tax authority).
It is established that to perform the tasks and functions assigned to the Information and Reference Department of the State Tax Service of Ukraine, the said Department can create structural divisions (workplaces) located at the addresses of territorial bodies of the State Tax Service of Ukraine.
The author concludes that one of the priority areas of the system of territorial bodies of the central executive authority that implements the state tax policy as an element of the institutional framework for ensuring the sphere of taxation should be a clear delineation of the boundaries of the competence assigned to these subjects and structuring the functions and procedures performed by them and aimed at ensuring the sphere of taxation.
It has been established that the local self-government bodies are referred to the public administration entities which have authority in the taxation sphere, and their functioning makes a substantial component of the institutional mechanism that supports the taxation sphere in Ukraine which envisages a method of organization and performance of the authorized public administration entities in the sphere of improvement and setting up proper conditions for paying taxes, charges and other obligatory payments so as to achieve the public interest.
Emphasized are the problems of legal regulation of the local self-
government authorities activity that include village, settlement and town councils and the executive bodies of the village, settlement and town councils in the taxation sphere as an essential component of the institutional mechanism which supports the taxation sphere in Ukraine.
Attention is paid to the fact that the conceptual basics of competence of the village, settlement and town councils and the executive bodies of the village, settlement and town councils are defined by provisions of the Constitution of Ukraine which determine, inter alia, functioning of the local self-government bodies as the essential component of the institutional mechanism which supports the taxation sphere in Ukraine.
It has been established that the legal support of the local self-government bodies’ activity in the taxation sphere is sufficiently and detailed described in the provisions of the Law of Ukraine «On Local Self-Government in Ukraine» and in the Tax Code of Ukraine. It is determined as necessary to clearly demarcate the notions of «fixation», «establishment» and «introduction» of taxes or charges because, as relates to the national taxes and charges, they all are collected, however, as relates to local taxes and charges, their «fixation» and «establishment» are within competence of the Verkhovna Rada of Ukraine while their «introduction» stays within competence of the village, settlement and town councils and councils of the joined territorial communities.
It has been established that activity of the local state administrations in the taxation sphere are sufficiently and in detail regulated by provisions of the Law of Ukraine «On Local State Administrations» which Art. 18 envisages that a local state administration develops, approves and submits for consideration of the council a draft of the appropriate budget and provides for its fulfillment as well as reports to the appropriate council on its fulfillment; submits, in accordance with the established procedure, financial indicators and its proposals to the draft State Budget of Ukraine to the higher level executive bodies; and collects information envisaged by the legislation that relates to the development and fulfillment of the budget from all entities of the entrepreneurial activity, irrespective of their form of ownership.
It has been clarified that the main provisions that outline authority of the
local state administrations in the taxation sphere include part 3 of Art. 250 of the Tax Code of Ukraine and part 3 of Art. 289 of the Tax Code of Ukraine which state that the regional, Kyiv and Sevastopol city state administrations should, before December 1 of the year which precedes the reporting year, to submit to the control bodies the lists of taxpayers who have been issued, in accordance with the established procedure, the permits for emissions, special use of waters and placement of wastes, and, not later that on 15 January of the current year, inform the State Tax Service of Ukraine, landowners and land users about the annual indexation of the normative monetary evaluation of lands.
Defined and analyzed are the main problems and drawbacks of the legal regulation of issues referring to functioning of the local state administrations as an essential component of the institutional mechanism that supports the taxation sphere in Ukraine.
Attention is drawn to international standards for the functioning of public administration subjects in the sphere of taxation, namely: a) general standards; b) special standards; c) standards for appealing judgements, actions or omissions of public administration subjects. The largest number of international acts are made up of special standards, which include: a) agreements for the double taxation avoidance; b) agreements of the tax evasion prevention; c)agreements of the tax information exchange; and d) agreements aimed at countering the tax base erosion.
It is established that a critical factor in modernising the institutional
framework for ensuring the taxation sphere in Ukraine on the way to the European Community is the individualisation of the dialogue, which is explained by the incompleteness of the society political structuring processes and the need to strengthen the openness and transparency in the preparation and adoption of the state and management decisions.
Keywords: administrative and legal regulation, administration, national level of institutional support, institutional support, institutional framework, tools of public administration, municipal level of institutional support, tax system, tax legal relations, public administration, tax system, subject of public administration, subjects of tax legal relations, taxation sphere.
http://phd.znu.edu.ua/page//dis/07_2021/Ianushevych.pdf
