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Easter Greetings from The First Legal!

Dear clients and partners,

In these joyful days of Easter, when nature comes alive and fills our hearts with joy and hope, we, the team at “The First Legal”, wish you a happy celebration of Christ’s Resurrection! We wish each of you robust health, prosperity, and success in all your endeavors. May this holiday bring you peace and tranquility, and may your homes always be havens of harmony and happiness.

With respect and best wishes,
Your “The First Legal” Team

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In which countries is an apostille not required?

  1. Concept of an Apostille

An apostille is a simplified document legalization procedure. It is used for countries that have signed the Convention Abolishing the Requirement of Legalization for Foreign Public Documents (the Hague Convention) dated October 5, 1961. For Ukraine, the Hague Convention came into force on December 22, 2003, thus Ukrainians can legalize their documents in other states thanks to this convention.

The current list of state participants in the Hague Convention regarding the certification of documents by an apostille can be found on the website of the Hague Conference on Private International Law at hcch.net/en/instruments/conventions/status-table/print/?cid=41

The apostille stamp itself confirms the authenticity of the signatures and seals (stamps) on the document. A document that has undergone the formal procedure of affixing an apostille is considered valid and must be accepted by the state authorities of the country to which you are traveling or where you are submitting the documents.

2.Cases where document certification by an apostille is not required

Please note that the text of the Hague Convention itself (Part 2 Article 3) specifies that adherence to the mentioned formal procedure of affixing an apostille cannot be required if the laws, rules, or practices in force in the state where the document is presented, or an agreement between two or more contracting states, abolish or simplify this formal procedure or exempt the document itself from legalization. In other words, if there is a bilateral treaty on legal assistance (cooperation) between Ukraine and other contracting states, then the affixing of an apostille is not required.

For example, according to the bilateral treaty between Ukraine and the Republic of Latvia on legal assistance and legal relations in civil, family, labor, and criminal matters dated May 23, 1995, documents that have been drafted or officially certified by an official (notary, official translator, expert, etc.) within the competence and in the established form and certified by a seal, are accepted in the territory of the other Contracting Party without any other certification. That is, official documents that have been drafted in the territory of Ukraine or Latvia can be freely used/accepted in the territory of the contracting states provided they have a certified translation into the language of the contracting state, without the requirements for an apostille or consular legalization.

Particular attention should be given to the Convention on Legal Assistance and Legal Relations in Civil, Family, and Criminal Matters of 1993 and its Protocol of January 22, 1993, executed on behalf of Ukraine in Minsk on January 22, 1993, and ratified by the Law of Ukraine dated November 10, 1994, No. 240/94-VR, and the Protocol to it, executed on behalf of Ukraine in Moscow on March 28, 1997, and ratified by the Law of Ukraine dated March 3, 1998, No. 140/98-VR (hereinafter – the Minsk Convention and the Protocol). The participants of this Convention were: Ukraine, Russia, Belarus, Armenia, Tajikistan, Kazakhstan, Turkmenistan, Kyrgyzstan, Uzbekistan, Moldova.

The Minsk Convention provided for the submission of documents with their translation into the language of the country to which they are submitted without an apostille, only their notarial certification.

In relations with Azerbaijan, Armenia, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Tajikistan, Turkmenistan, and Uzbekistan, the Minsk Convention continues to operate until the date of Ukraine’s withdrawal from it, i.e., until May 18, 2024, inclusive. From May 19, 2024, the Convention will be considered terminated for Ukraine in relations with all its participants. An exception to this rule is documents issued in Georgia, Moldova, Uzbekistan, where separate bilateral treaties have been signed between these countries and Ukraine, allowing the use of documents with a notarial translation without an apostille.

3.List of countries for which an apostille is not required

Also, affixing an apostille is not required with other countries besides the aforementioned, with which Ukraine has signed bilateral and/or multilateral treaties on cooperation, which allow the use of documents with a translation, certified by a notary without an apostille.

The list of such countries is provided below:

Azerbaijan, Armenia, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Tajikistan, Turkmenistan, Uzbekistan, Lithuania, Estonia, Latvia, Czech Republic, Hungary, Poland, Mongolia, Macedonia, Vietnam, and China.

Note:

Despite the existence of bilateral Agreements concluded between Ukraine and the Republic of Belarus that provide for the use of documents without an apostille, an analysis of these Agreements regarding their termination is currently being conducted, as the operation of the Minsk Convention in relations with the Russian Federation and the Republic ofBelarus has been suspended as of December 27, 2022. This means that documents issued in the territory of Russia and Belarus, when presented in the territory of Ukraine, will require the certification of an apostille according to the Hague Convention, which abolishes the requirement for legalization of foreign official documents, 1961, which is valid in relations between Ukraine and Russia and Belarus.

Official documents issued in Ukraine, for use in Russia and Belarus, are subject to certification by an apostille by the bodies defined by the Resolution of the Cabinet of Ministers of Ukraine dated January 18, 2003, No. 61 (taking into account changes made by the resolution of the Cabinet of Ministers dated June 24, 2023, No. 629).

4.List of documents that are not subject to apostille at all

It is worth noting that according to the Order of the Ministry of Justice of Ukraine dated March 17, 2023, No. 125/209/293/139/999/5 “On Approval of the Rules for Affixing an Apostille on Official Documents Intended for Use in Other States”, a clear list of documents that are NOT subject to apostille is defined, namely:

  • documents issued by foreign diplomatic institutions of Ukraine;
  • administrative documents directly related to commercial or custom operations;
  • originals of passport documents, military IDs, labor books, identity cards, and documents certifying its special status;
  • regulatory legal acts of Ukraine and clarifications regarding their application;
  • permits for carrying weapons;
  • certificate of vehicle registration (technical passport);
  • documents that are of the nature of correspondence.

To avoid misunderstandings in other countries when legalizing your documents, it is recommended to address this issue in advance by consulting with lawyers from the Legal Company “First Legal”, who will quickly and efficiently help resolve all issues related to the legalization of documents.

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How To Order A Certificate Of No Criminal Record In Ukraine. Obtaining A Certificate Of No Criminal Record Online

A Certificate of No Criminal Record or an Extract from the Information-Analytical System “Accounting for Information on Bringing a Person to Criminal Responsibility and the Presence of a Criminal Record” is an official document, in paper or electronic form, issued by competent authorities. It confirms the absence or presence of a criminal record in individuals. The issuance and processing of the certificate of no criminal record in Ukraine are regulated by the Order of the Ministry of Internal Affairs of Ukraine No. 207 dated March 30, 2022.

Currently, the certificate of no criminal record is a very important document for many aspects of public, professional, and personal life of any individual. The main key aspects associated with obtaining a certificate of no criminal record are:

  • Confirmation of an individual’s status: this certificate confirms that the person has no criminal record or provides information about the presence of criminal records, their nature, and status (extinguished, active criminal record);
  • Employment: In most cases, when hiring, in areas where employees have access to confidential information, finances, or work with vulnerable population groups;
  • Visa and immigration procedures: This certificate is necessary for applying for a visa, immigration, or obtaining citizenship both in Ukraine and in other countries;
  • Licensing and Certification: For some licenses and permits, submission of a certificate of no criminal record for employees is a necessity (for example, obtaining a license for security activities).

Procedure for obtaining a certificate of no criminal record.

Currently, the Certificate of No Criminal Record or an Extract from the Information-Analytical System can be obtained in both electronic and paper form.

Information from the IAS is provided to the Applicant in the form of an Extract, complying with the legislation on citizens’ appeals and protection of personal data, based on a request for an Extract on bringing to criminal responsibility, absence (presence) of a criminal record, or restrictions provided by the criminal procedural legislation of Ukraine.

Getting a certificate of no criminal record online:

A request in electronic form can be submitted and a certificate in the form of an extract can be obtained through the Ministry of Internal Affairs website, by logging into the Personal Account using a qualified electronic signature or through the “Diia” portal. This extract is generated automatically and immediately.

Submitting a request in paper form (this option is suitable if an individual applies for licenses, tender documentation, further legalization of the certificate):

A request for obtaining the Certificate (Extract) in paper form is submitted personally by the Applicant or by an authorized person in the prescribed manner, acting on the basis of a power of attorney or order, to the EIS MIA service, territorial service center, or a separate registration point of a qualified provider of electronic trust services of the accredited key certification center of the MIA, the employees of which, by the decision of the head of the legal entity ensuring the functioning of such a VPR ACCS MIA, are users of the remote access workplace to the IAS, regardless of the address of the declared/registered place of residence (stay) of the Applicant.

Do not forget to affix an apostille to the certificate of no criminal record.

To legalize such a certificate so that it is valid outside the territory of Ukraine, it is necessary to put an apostille on this certificate.

Obtaining a certificate of no criminal record in paper form online

If you need to obtain a certificate of no criminal record and affix an apostille to it, but you cannot personally apply to the MIA, you can contact the specialists of the “First Legal” Company.

To obtain a certificate (extract) of no criminal record, you need to submit:

  • A completed application-appeal;
  • A copy of the passport of the Applicant or the person regarding whom the Extract will be obtained;
  • The identification number of the Applicant or the person regarding whom the Extract will be obtained;
  • A power of attorney or order (in case of submission of the request by an authorized person).

If you do not have the time or energy to obtain a certificate of no criminal record, you can contact the “First Legal” Company. The company’s specialists will help you obtain this document with further legalization (apostille and consular legalization) so that this Certificate has legal force in any country in the world.

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How to get a divorce online in Ukraine?

In the conditions of martial law, it’s important to acknowledge the fact that, unfortunately, the number of divorces in Ukraine has increased, primarily due to the separation of married couples and families, caused by the relocation of women and children outside Ukraine. In such cases, the question arises: is it possible to get a divorce if one or both spouses are abroad? Can it be done in Ukraine, including online without appearing in court? Let’s try to understand this.

It’s worth noting that under martial law, especially when both spouses or one of them are outside Ukraine, the most popular method is an online divorce. This allows those wishing to dissolve their marriage to do so without returning to Ukraine, attending court sessions, and to receive the court’s decision on the divorce by mail.

The general procedure for divorce in Ukraine

Generally, there are two ways to dissolve a marriage in Ukraine:

  1. An extrajudicial procedure for the dissolution of marriage, which takes place at the civil status acts registration offices of the State Registration Departments of the Ministry of Justice of Ukraine (hereinafter – DRACS) and exclusively in cases where there are no children or they are adults. In this case, the couple must personally fill out and submit a joint application for divorce. If one of the spouses, for a valid reason, cannot personally submit the application to DRACS, the other spouse can submit such a notarized or equivalent application on their behalf. Unfortunately, this application cannot be submitted online.
  2. A judicial procedure for the dissolution of marriage in Ukraine, where the divorce can take place either by a joint application of the spouses or by the application of one spouse, by submitting a complaint to the court. In this case, the presence or absence of children and their age do not matter. Additionally, this application can be submitted online, without being physically present in Ukraine. Therefore, this method of divorce, especially during the war, has become the most relevant and popular.

Specifics of Online Divorcen Ukraine

In the case of opting for a judicial divorce procedure, one of the spouses can file a divorce application through the E-court system’s subsystem/module. To do this, it’s enough to register in the “E-court”. Registration in the electronic cabinet of the “E-court” for an individual is quite simple and requires only the presence of a key with a qualified electronic signature (QES), which can be issued by one of the accredited centers of Qualified Providers of Electronic Trust Services (such as JSC “PrivatBank”, JSC “PRAVEX BANK”, etc.).

However, it’s simpler to turn to a lawyer, who, after signing a legal aid contract with you (including using a digital electronic signature), can professionally, quickly, and efficiently prepare the lawsuit, collect all necessary documents, pay the court fee, submit all documents to the court, and receive the court’s decision on the divorce without your participation and presence. All these actions can be independently carried out online by your lawyer through the E-court system’s subsystem/module.

Required Documents for Filing for Online Divorce

For an online divorce, as the initiator, you need a minimum of documents, namely: a copy of the marriage certificate, a copy of your passport and identification code, a copy of the birth certificate of the child/children (in case of minor children). Copies of the other spouse’s documents may also be provided (if available).

For more detailed consultation and specifics of online divorce, you can contact the specialists of the Legal Company “First Legal” by filling out the application form on our website, contact us through email or messengers, or simply call us at: +38 (044) 35-35-164, +38 (067) 306-89-89, +38 (063) 45-85-448, +38 (099) 367-89-89.

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How to Draft a Real Estate Lease Contract

Property rental is an integral part of the life of almost every Ukrainian, as nearly everyone has rented accommodation or leased it at least once in their lives. In this overview, we will briefly examine the specifics of drafting a real estate lease contract.

First and foremost, it’s worth noting that a lease agreement for an apartment is drawn up in a simple written form without the requirement for notarization. The exception is a lease agreement with an option to purchase, which requires notarization.

The parties to the lease agreement can be both individuals and legal entities. More often than not, it involves the rental of property between individuals. Let’s take a closer look at this particular scenario.

To draft a lease agreement and provide maximum protection against future risks, it is advisable to consult with a lawyer or attorney from the outset.

In practice, not everyone avails the services of a professional lawyer for renting out or leasing their property. If you engage a real estate agent for finding or renting out a property, they typically have a standard contract template that simplifies the process.

However, individuals often post ads on public internet platforms for renting out or searching for accommodation and create a lease agreement using templates from the internet or other sources.

To minimize risks when drafting a lease agreement for accommodation, it is important to consider a set of conditions that should be stipulated in the agreement.

For a lease agreement to be considered concluded, it must necessarily define essential conditions: the subject matter, price, and the term of the agreement.

According to the general rule for entering into any contract, the parties must determine its essential conditions, including the subject matter of the contract and other necessary conditions for that particular type of contract.

Based on the current legislation of Ukraine, we have identified the following essential conditions of a lease agreement for accommodation:

  1. Subject matter of the contract – information about the property, i.e., the characteristics of the apartment you plan to rent or lease, including its precise address, area, and the technical plan of the apartment.
    To achieve this, it is strongly recommended to obtain from the apartment owner (or their authorized representative) copies of the property title documents for the apartment, confirming the ownership or the right to use and dispose of it!
    Also, it is advisable to obtain a copy of the technical passport for the apartment, which includes the plan of the specified apartment.
    In practice, apartment owners (or their authorized representatives) often refuse potential tenants to provide copies of such documents, and the original ownership documents may only be provided for inspection, as an exception. Therefore, for prospective tenants, it is strongly recommended to use the services of the Ministry of Justice of Ukraine, where you can order up-to-date information from the State Register of Property Rights (SRPR) for real estate regarding ownership of the apartment you are interested in at any time. To do this, you need to know the exact address of the apartment (search by address) or the taxpayer identification number/name of the apartment owner. The cost of such information is approximately 30 hryvnias. However, with the SRPR, you will not be able to see current information if the apartment was acquired before 2013 and has not been registered in the SRPR since then. Therefore, if there is no information about the apartment you are interested in in the SRPR, it is strongly recommended for potential tenants to obtain at least a copy of a document confirming ownership of the apartment (purchase and sale agreement, certificate of ownership, certificate of inheritance, etc.) from the owner (or their authorized representative).
  2. Lease Term – Specify the start and end date of the lease term or the term of the lease agreement. As a general rule, in practice, the document confirming the fact of transferring the apartment for rent and its acceptance by the tenant is an acceptance-transfer certificate, which is signed by the parties at the time of handing over the keys to the apartment, and the lease term begins from this moment.
    Please note that when signing the acceptance-transfer certificate for the apartment, it is necessary to specify (list) all property located in the apartment at the time of its transfer, its quantity, as well as qualitative characteristics (model, brand, if it concerns household or other equipment), and also the condition of such property. If the property has obvious defects (e.g., scratches or other defects), it is necessary to indicate this in the certificate, which will protect you as a tenant from possible claims from the landlord in the future.
  3. Rent – The amount of rent (what it consists of), the term, and the method of payment (bank transfer, cash, etc.), as well as the conditions for its revision.
    It is worth noting that in practice, rent is often paid in cash rather than by bank transfer. In the case of paying the rent in cash, we recommend signing any written document between the tenant and the landlord confirming the amount of rent paid and the period for which such payment is made. This can be a bilateral acceptance-transfer of funds or a separate addendum to the apartment lease agreement, which will contain a kind of payment schedule indicating the amount, payment period, and the signatures of the parties.
    !!! Please note that only the parties to the lease agreement or their authorized representatives can be parties to the document confirming the receipt of rent, and to confirm this, the corresponding power of attorney (notarized) must be presented, specifying the authority to receive/transfer funds, depending on who acts on the basis of the power of attorney (landlord or tenant).
  4. Security Deposits – Here, parties typically determine the amount of the deposit (usually equivalent to one month’s rent) to cover potential losses or other property claims by the landlord against the tenant in the future.
    !!! In the case of payment of a security deposit, it is recommended to sign a bilateral document (see comments on clause 3).
  5. Rules of Use of the Apartment – Here, it should be determined whether other residents have the right to live with the tenant. If such right is defined by the terms of the agreement, these residents should be identified, and their details (full name, passport information, taxpayer identification number, registration address, etc.) should be included in the agreement. It is also recommended to obtain copies of identity documents for such residents.
  6. Rights and Obligations of the Parties – A list of the rights and obligations of the landlord and the tenant is defined.
  7. Termination Conditions (Early Termination) of the Lease Agreement and the Procedure for Refunding Paid Sums as a Security Deposit – Cases where either party has the right to early termination (termination) of the agreement are determined. These cases usually involve violations of obligations by either party as defined in the lease agreement or advance notice to the other party about such early termination, in the absence of violations of the agreement’s terms. In case the tenant pays a security deposit, conditions for the return of the paid funds should be specified.
  8. Responsibilities of the Parties – This is an important instrument that safeguards each party from possible abuses or breaches of obligations by the other party. In case of delayed payment of rent and/or utility bills, this may include a penalty, calculated for each day of payment delay, and compensation for damages in case of harm to the landlord’s property.
  9. Details and Signatures of the Parties. It is important to specify all details of the tenant and the landlord, including full name, passport information, registration address, taxpayer identification number, phone number, email address (if applicable). !!! It is strongly recommended that when signing the apartment lease agreement, the parties exchanging copies of their passports and taxpayer identification numbers.

To ensure the protection of your rights and property, we recommend reaching out to our law firm First Legal Kyiv where our lawyers have extensive experience in contractual work and will consider all your preferences while maximizing the protection of your rights. We will help to draft a contract of any complexity!

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How to apply for child support?

The general steps for applying for child support in Ukraine involve standard procedures that may vary depending on whether the applicant intends to claim a fixed monetary amount independent of the payer’s income or a specific percentage of the payer’s income. The required documents for preparing a claim also depend on the chosen method of seeking child support.

If one parent, responsible for supporting a minor child, intends to receive child support from the other spouse, this process can be resolved either voluntarily through mutual agreement or through legal proceedings without the consent of the other party.

If there is agreement between both parents regarding child support, including the amount, payment schedule, or additional expenses related to the child’s well-being, they can directly approach a notary to sign and notarize such an agreement. However, the legal provision allowing for the termination of the right to child support remains unchanged, subject to approval by the guardianship and trusteeship authority, especially if the supporting spouse does not reside with the child but has transferred ownership rights to certain real estate to the child.

In the case of the most common method, resorting to legal proceedings for child support, there are two ways: simplified (orderly) and general (lawsuit) proceedings.

If you intend to apply for child support:

  • In the following income scale (earnings) of the child support payer: 1/4 for one child, 1/3 for two children, 1/2 for three or more children, but not exceeding ten times the subsistence minimum per child of the corresponding age for each child. If this requirement is unrelated to establishing or contesting paternity (maternity) and does not involve the need to involve other interested parties, or
  • In a fixed monetary amount equal to 50 percent of the subsistence minimum for a child of the corresponding age (this amount changes annually and is established by the Supreme Rada of Ukraine in accordance with the Law of Ukraine on the State Budget of Ukraine for the respective year).

You can seek assistance from a lawyer or attorney to prepare a request for a court order (simplified child support recovery process), which significantly expedites the case review process, and child support is awarded from the date of filing such a request for a court order.

If you intend to make claims for child support in amounts different from those specified above, you should engage a lawyer or attorney to prepare the appropriate lawsuit, as well as help gather all the necessary evidence justifying the amount of the claimed demands. In this case, child support is awarded by court decision from the date of filing the lawsuit.

How to apply for child support during wartime?

The procedure for preparing documents to claim child support during a state of war remains unchanged, meaning the process described above is still applicable and relevant at the present time.

During wartime in Ukraine, due to many families (parents of children) being forced to leave the country, the issue of remote child support recovery becomes more critical. This matter can be addressed by seeking the assistance of a lawyer, who, by entering into an appropriate legal assistance agreement with you, can represent your interests remotely without the need for your presence in court, manual signing of documents, etc.

Is it possible to apply for child support online?

Considering the ongoing reforms in the judicial system and the digitization of court work, lawyers can submit an application for child support online on behalf of their clients through the subsystem/module of E-SITS “Electronic Court.”

It is important to note that any individual can independently submit an application for child support or any other application to the court through the subsystem/module of E-SITS “Electronic Court.” To do this, the person needs to register in the system. Registering in the electronic cabinet “Electronic Court” for an individual is relatively straightforward and requires the possession of a key with a qualified electronic signature (KES), which can be issued by one of the accredited centers of Qualified Providers of Electronic Trust Services.

How much does it cost to apply for child support in Ukraine?

For the court to consider an application for child support, there is no need to pay a court fee, as plaintiffs in this category of cases are exempt from paying court fees. However, the services of a lawyer who prepares an application for a court order or a lawsuit need to be paid according to the terms of the legal assistance agreement, unless it involves pro bono legal assistance.

If you have questions related to child support recovery, you can contact the lawyers of the legal company “First Legal” for legal consultation. Our specialists will be happy to help you resolve the issues that concern you!

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How to terminate the rental agreement unilaterally?

According to the lease agreement, the lessor (lessor) transfers or undertakes to transfer the property to the lessee (lessee) for possession and use for a certain period of time. Lease agreements are prevalent both in economic legal relations among legal entities and in civil ones, where the subjects are also natural persons. This is due to the fact that the object of lease agreements can be any property that is not excluded from civil turnover: from small household items to complete property complexes. At the same time, it is not uncommon for the counterparty under the lease agreement to stop fulfilling its obligations properly: for example, the tenant pays the usage fee late, or the lessor does not provide the premises with utilities, the mandatory availability of which is provided for in the lease agreement. The impossibility of reaching a resolution of the dispute through negotiations leads to the fact that the managed party is looking for a way to resolve the situation through termination of the contract, including one-sided. However, as it turns out, it is not always possible to implement it outside the court order or in a short time. We will talk about this below.

Why is it impossible to terminate the contract unilaterally out of court in a short period of time?

The current legislation (Articles 651 of the Civil Code of Ukraine and 188 of the Economic Code of Ukraine) stipulates the rule: “Termination of contracts is carried out by agreement of the parties, unilateral termination of contracts is not allowed unless otherwise provided by law or contract.”Thus, according to the general rule, in order to terminate the contract, it is necessary to reach a mutual agreement between the parties and properly formalize such agreement (conclude an additional agreement) or, if it is not possible to reach an agreement, apply to the court with a claim for termination of the contract. Exceptions to this rule are established by contract or law.

Regarding the termination of the employment (lease) contract, the norms of the Civil Code of Ukraine and the Economic Code of Ukraine come into conflict. Thus, Article 782 of the Civil Code of Ukraine provides that the lessor has the right to refuse the rental agreement and demand the return of the thing if the lessee does not pay for the use of the thing for three consecutive months. Instead, Article 291 of the Economic Code of Ukraine categorically states: that unilateral refusal of the lease agreement is not allowed. Taking into account the fact that in relation to business contracts, the specified norm of business legislation is special, a lease agreement by the parties in which there are business entities cannot be terminated unilaterally – only by mutual consent of the parties or by a court decision.

Given the inconsistency of economic and civil legislation regarding the possibility of unilateral termination of the lease agreement, the resolution of such disputes is also ambiguous. After all, in practice, the lion’s share of lease agreements contain provisions on the possibility of their unilateral termination by one or both parties in the presence of violations of the terms of the agreement and without such. At the same time, the courts take a different position: some clearly uphold the prescriptions of Art.291 of the Commercial Code of Ukraine, while others (including the Supreme Court in case 922/3293/18) prioritized the dispositive nature of civil legislation and the right of the parties to change the contract and supplement it at their own discretion with convenient and effective regulations.

Additional grounds for terminating the lease agreement by both the lessee and the lessor

At the same time, the Civil Code of Ukraine defines additional grounds for terminating the lease agreement by both the lessee and the lessor. The lessor has the right to demand termination of the contract in the following cases:

  • the tenant owns and/or uses the thing contrary to the contract or purpose of the thing;
  • the lessee, without the lessor’s permission, transferred the thing into possession and/or use to another person;
  • the hirer creates a threat of damage to the thing by his negligent behavior;
  • the lessee has not started to carry out capital repairs of the thing if the obligation to carry out capital repairs was assigned to the lessee.
  • In turn, the lessee has the right to demand the termination of the lease agreement if:
  • the lessor handed over the thing, the quality of which does not correspond to the terms of the contract and the purpose of the thing;
  • the lessor does not fulfill his obligation to carry out capital repairs of the thing.

It should also be remembered that for certain types of lease agreements (depending on the lease object), special grounds for termination are established by law. For example, the tenant of housing has the right, with the consent of other persons who live with him permanently, at any time to withdraw from the lease agreement by notifying the landlord of this in writing three months in advance, or if the housing has become unfit for permanent residence in it. There are also additional grounds for terminating the lease agreement by a court decision at the initiative of the lessor:

  • non-payment by the lessee of housing rent for six months, if the contract does not establish a longer term, and in the case of short-term rent – more than twice;
  • destruction or damage to housing by the tenant or other persons for whose actions he is responsible;
  • if it is necessary to use housing for the lessor and his family members.

In economic legal relations, the party that initiates the termination of the contract must do so in accordance with the provisions of Article 188 of the Economic Code of Ukraine: send proposals about this to the other party under the contract. The party to the contract, which received a proposal to terminate the agreement, within twenty days of receiving the proposal, notifies the other party about the results of its consideration. In the absence of a consensus of the parties, the interested party has the right to refer the dispute to the court for resolution. The parties can also clarify or change this procedure in the contract.

Summarizing

Summarizing: the right to unilaterally terminate the lease depends on several conditions at the same time:

  • provisions of legislation regarding the possibility of terminating or rejecting a contract of a certain type;
  • the existence of facts of violations by one of the parties of the essential conditions of the lease agreement;
  • additional provisions of a specific contract regarding the possibility of early termination at the request of one of the parties.
Posted on Leave a comment on Legal and accounting services in Portugal

Legal and accounting services in Portugal

Portugal is one of the most promising countries in the European Union for creating and scaling your own business. However, when running your own business, questions always arise about real estate transactions, legal services, accounting and tax accounting, reporting, personnel issues.

The First Legal Portugal company provides legal and accounting services, turnkey business subscription service, any consultation questions on the territory of Portugal.

One of the main directions of the First Legal Portugal company is the comprehensive turnkey business service. First Legal Portugal specialists provide legal advice, legal support for transactions of any complexity, accounting and HR support for any business in Portugal.

Legal services in Portugal by First Legal Portugal include:

✓ Consultations of lawyers, attorneys and other specialists of the company;

✓ Preparation of written consultations, conclusions, contracts, agreements and other normative documents;

✓ Legal analysis of legal documents and regulatory acts;

✓ Development of contracts, agreements, declarations, letters, internal company documents;

✓ Registration and liquidation of business in Portugal;

✓ Support of inspections by state bodies;

✓ Carrying out any registration actions, making changes to information and founding documents of the company;

✓ Representation of interests in court;

✓ Buying and selling real estate;

✓ Legalization of documents (apostille and consular legalization);

✓ Copyright protection in Portugal;

✓ Services on immigration issues in Portugal;

✓ Probate and inheritance registration;

✓ Solving of other legal issues.

The main areas of law in which we advise are:

✓ family law;

✓ land right;

✓ immigration law;

✓ inheritance lawht;

✓ contract law;

✓ civil law;

✓ tax law;

✓ labor law;

✓ international law;

✓ other areas of law.

Accounting services in Portugal provided by First Legal Portugal include:

✓ consulting on choosing a taxation system at the stage of business creation;

✓ accounting;

✓ tax accounting;

✓ submission of tax returns;

✓ control of current payments;

✓ VAT refund process;

✓ salary payments for employees;

✓ other individual services, depending on the client’s activity specifics.

By contacting First Legal Portugal, you receive turnkey legal and accounting services, an individual approach, a 100% guarantee of results, and a well-prepared consultation.

First Legal Portugal also provides additional services for individuals and legal entities, namely:

✓ Registration of a private entrepreneur;

✓ Company registration;

✓ Business accounting support;

Golden Visa in Portugal;

✓ Obtaining a residence permit for non-residents;

✓ Support in obtaining any type of visa;

✓ Obtaining a tax number;

✓ Opening bank accounts;

✓ Legalization of documents.

✓ Legalization of documents.

Posted on Leave a comment on Online legal advice: what issues are to be resolved online?

Online legal advice: what issues are to be resolved online?

Legal advice online is the fastest way to get qualified assistance from a lawyer or legal counsel on issues related to the specialization of a particular lawyer / legal counsel. Such consultation is most optimal in terms of time both for its provision and for its receipt, because such consultation can be provided quite quickly without preventing the Client from doing his main business. At the same time, the advantage of obtaining legal advice online is the possibility for the Client to receive it regardless of his location and the location of the lawyer / legal counsel, as well as the issues requiring consultation are virtually unlimited, the main thing is that such questions relate to the specialization of the lawyer / legal counsel, law firm, lawyer’s office or association which you have referred to. Therefore, the main advantage of such consultations is surely their speed, which does not oblige you, as a Client, to spend precious time on long trips and travel.

We live in the 21st century, which is associated with the introduction of digital technologies in almost all areas of business – digitalization, which allows us to optimize and automate business processes, improve communication. The sphere of legal services is no exception, because today the possibilities for providing and receiving legal services have expanded enormously, which is also associated with a number of legislative changes that have made the sphere of legal services more flexible.

Online legal advice can be provided:

  • in the form of an oral communication between the Client and a lawyer, say, directly by phone or in the format of an online conference, online video call using modern instant messengers for communication (Telegram, Viber, WhatsApp, etc.) or other specialized programs for video communication (Skype, Zoom, etc.);
  • by filling out a special form provided on the official website of a law firm, lawyer’s office / association, lawyer, etc., where you briefly indicate the essence of the issue of interest and receive advice by e-mail or in another convenient way. For example, you have this opportunity by filling out the appropriate form on the website of our law firm: https://firstlegal.com.ua/;
  • using electronic correspondence (e-mail) indicated on the website of a law firm, lawyer’s office / association, lawyer, etc. For example, you can send your question to the official email address of our company:

Today, there are a lot of means for online communication with the Client, so choosing the most convenient form for obtaining legal advice online will be quite simple and easy for you. If we analyze the issues that a lawyer or a legal counsel can deal with online (without being in direct communication with the Client), we can say with confidence that there is a majority of such issues. Let’s try to explain why. These issues can be quite diverse: for example, from the initial consultation on how to start your own business, the development of a business scheme, to the development of contracts of any kind, representation / protection of your interests in court. In addition, online legal advice can be provided in most branches of law, in particular in the field of civil, economic, administrative, tax, corporate, labor, land law. Only with rare exceptions, online consultation of a lawyer / legal counsel is not possible, for example: the need for a lawyer / legal counsel to be present during the representation of the Client’s interests in notary bodies, public authorities (internal affairs bodies, bodies of the State Customs Service, State Migration Service, etc.). Although, at the same time, it is worth noting that quite a lot of state authorities today carry out consideration of complaints remotely using Internet tools (online), if we are talking, for example, about the administrative (pre-trial) procedure for appealing against decisions (acts) of authorities (bodies of the tax service, the antimonopoly committee, etc.), which makes it possible to involve a lawyer / legal counsel online in the provision of qualified legal services in almost all cases.

So, there is a vast majority of issues that a lawyer / legal counsel can deal with online. At the same time, it can be both oral and written legal advice on issues that you want to get an answer to, preparation of various legal documents (receipts, claims, contracts, statements of claim, complaints, etc.), as well as representation of your interests in courts of different jurisdictions of all instances. Indeed, today, due to a number of legislative changes that have taken place, in particular, in the judicial system, the physical presence of a lawyer / legal counsel in a court session is not necessary. At the same time, the use of video conferencing systems (EasyCon) by participants in court proceedings has become quite popular, which makes it possible for a lawyer / legal counsel to take part in a court session using their own technical means (own PC, laptop, tablet, etc.), sitting in the office or at home without leaving the courtroom. It should be noted that lawyers / legal counsels often use a remote form of participation in court hearings, because this saves not only the time of a lawyer / legal counsel , but also saves you money to compensate for the costs of a lawyer / legal counsel for travelling to the place of hearing, food, accommodation, especially when it comes to hearing a court case in another city where the specialist you entrusted with the conduct of your case does not live/work.

Of course, before getting advice from a lawyer / legal counsel online, it is important for the Client to make sure of the competence and / or experience of the relevant specialist. After all, before voicing the problem, it is important for the Client to make sure whether such a specialist can be trusted. Of course, there are many ways to do this. Firstly, you can monitor in advance the official website of the law firm, lawyer’s office / association, legal aid center, the lawyer you plan to contact for legal advice, read the reviews. Secondly, knowing the name of a lawyer / legal counsel or his phone number providing you with the relevant service, you can independently check the information about him in the Unified Register of Lawyers of Ukraine (ERAU) at the link: https://erau.unba.org.ua/. Thirdly, if there is no information about a lawyer / legal counsel in ERAU, you can always request documents confirming the qualifications of the relevant lawyer / legal counsel .

It is important to understand that the method of obtaining a consultation that you choose (online or face to face) , does not in any way affect the quality and completeness of the consultation received.

You can send all documents and / or information necessary for a lawyer / legal counsel to provide advice in any way convenient for you (by e-mail), by uploading to the cloud storage, to any messenger convenient for you (Telegram, Viber, WhatsApp, etc.). At the same time, if you receive legal assistance from a lawyer, the right to confidentiality of the information provided by you is guaranteed to you by the Law of Ukraine “On Advocacy and Lawyer Activity”, the Rules of Advocacy Ethics, as well as the agreement on the provision of legal assistance concluded between the Client and the lawyer / lawyer’s office / association and is a primary document certifying the lawyer’s authority to provide legal assistance to the Client. If you receive advice directly from a law firm, the latter guarantees the confidentiality of the information you transmit by signing a non-disclosure agreement (NDA) with you.

If you choose a remote method of obtaining legal assistance (online), all issues of formalizing your relationship you can also decide online: how to conclude a contract for the provision of legal services / on the provision of legal assistance, as well as the payment for such services. Especially considering that we live in a time when the use of an electronic digital signature (EDS) in our daily life is an integral part thereof, opening up opportunities for any online services in Ukraine, in particular, for obtaining legal services online. Of course, if you do not have or do not use an EDS, you can always sign an agreement for the provision of legal services / legal assistance yourself and send it by mail.

The cost of online legal services depends, as a rule, on the complexity of the issue with which you applied for legal assistance and the time spent by the lawyer / legal counsel to provide appropriate advice. At the same time, the procedure for calculating the remuneration (time-based payment, a fixed amount), the procedure and terms for paying the remuneration of a lawyer / legal counsel are determined in the relevant agreement on the provision of legal services / on the provision of legal assistance by a lawyer. For example, the minimum cost of legal advice from a lawyer / legal counsel in Kyiv is _____ per hour. At the same time, the issue of the amount of remuneration and the procedure for payment should be discussed with a law firm or a lawyer / lawyer’s office / association ahead of time, before ordering a legal service.

Payment for consultation of a lawyer / legal counsel can be carried out both via electronic payment funds (Internet banking), and by transferring funds, acquiring, depending on the settings of the website of a law firm or a lawyer / lawyer’s office / association, etc. As a rule, a consultation that does not require a lot of time is paid for in advance, before it is provided.

So, summing up the above, we can confidently say that online legal advice is a modern and optimal solution for both providers of such services, and for their recipients (Clients). Their effectiveness is undoubted, because this is a new level of development in the field of legal services, provided, in particular, by our law firm “Pervaya Yuridicheskaya”.

Posted on Leave a comment on LEGAL ADVICE IS THE ONLY RIGHT DECISION IN SOLVING A LEGAL ISSUE

LEGAL ADVICE IS THE ONLY RIGHT DECISION IN SOLVING A LEGAL ISSUE

Most of social relations which a person takes part in every day are regulated by the rule of law. Starting from the simplest ones (purchasing goods, driving a car, etc.) and ending with complex procedures (for example, additional issue of securities by a private joint-stock company) – all these transactions are regulated by the law of one or another level. That is why, before making a deal, it pays to get some legal advice. After all, after its completion, the client receives:

  • a clear understanding of the current situation;
  • probable ways out of the situation and the legal consequences of each of them for the client;
  • ways to avoid similar situations in the future (if the situation is negative for the client).

The form of legal advice can be as follows:

  • oral consultation: provides for individual communication between a legal counsel (lawyer) and a client in a previously agreed place (office of a law firm or client’s office);
  • written consultation: is set out in a paper document or electronic form with a mandatory reference to the provisions of law and recommendations for the client. Usually signed by the head of the law firm;
  • online consultation: involves communication via text messengers or via a webcam, without the need for a personal meeting which is especially important under quarantine and martial law.

Each of these forms has its pros and cons. For example, a one-to-one oral meeting is best suited for family and criminal law consultations. Along with this, advice on the most appropriate form of taxation for an individual entrepreneur can be provided online no less effectively.

Prior legal advice: a necessity or a waste of time and money?

The experience of our clients demonstrates that one should seek advice from a qualified lawyer, and not engage in “self-treatment”. It is also best to consult a lawyer even “before” the onset of a problem. After all:

  • a lawyer will objectively and without emotion assess the situation from a legal point of view, explain your rights and obligations;
  • a lawyer has special knowledge in the relevant area of law (legislation is constantly changing, and therefore it is not easy for an ordinary person to follow all the changes);
  • a lawyer constantly practices his activities, therefore he knows not only the “theory”, but also knows how to apply it in real life;
  • a lawyer consults with his professional colleagues, which enriches the consultation, makes it more complete.

Payment for legal advice

Legal advice by its nature refers to primary legal aid. It can be both paid and free.

All persons under the jurisdiction of Ukraine have the right to free legal assistance.

In accordance with Article 9 of the Law of Ukraine “On gratuitous legal aid”, the subjects of provision of gratuitous primary legal aid in Ukraine are:

– executive authorities;

– local governments;

– individuals and legal entities of private law;

– specialized institutions;

– centers of free secondary legal aid.

As for paid consultations, they can be provided by legal counsels , lawyers, notaries and other legal professionals.

In accordance with the Law of Ukraine “On Advocacy and Lawyer Activity”, a lawyer (as well as a legal counsel) determines the amount of the fee for his services, including for legal advice, at his own discretion. The amount of the fee takes into account the complexity of the issue, the time spent on its solution and other significant circumstances. At the same time, most lawyers and legal counsels have a fixed cost per consultation or a fixed cost per hour.

To sum up: legal advice is one of the types of legal assistance, the receipt of which allows the client to correctly assess the situation, consider the pros and cons of the transaction and make the right decision. Getting legal advice “before” a transaction is always better than “after” it. Paid or free legal advice is the key to the success of the transaction, because the client receives the result he expected without unpredictable surprises.

Posted on Leave a comment on What to expect from working with a lawyer?

What to expect from working with a lawyer?

The whole world is built on human relationships. The need to communicate with a lawyer, the same as with a doctor, is usually caused by a problem that needs to be solved, therefore, it already has negative grounds. Therefore, a potential client comes to a law firm for professional assistance in resolving his issue and sometimes does not know what to expect from working with a lawyer and how to behave. Usually, in the process of work, misunderstandings between a client and a lawyer can arise in such cases: doubts about the completeness and quality of the service provided; in the competence of a lawyer; in the amount of the service fee; in inflated estimates regarding the obligatory receipt of a positive result for the client, etc. In this article, we will consider some practical issues of proper interaction with professionals both in Kyiv and throughout Ukraine.

At the initial stage, successful work with a lawyer is based on building effective communication. You need to describe your case in as much detail as possible without hiding anything and provide all available documents, evidence, testimonies, etc. Withholding or misrepresentation of facts is usually revealed later, but may lead to the wrong strategy or type of legal protection. In a dynamically developing situation, it is necessary to inform your defender about new circumstances as soon as possible, because any delay can lead to negative consequences. Lawyers, in turn, need to explain to the client as clearly as possible the prospects for the development of the case and all the positive and negative aspects of each of the chosen ways to solve the problem. If the matter is protracted, then it is important to agree on a mutual communication schedule with the person in order to keep him in the loop and prevent too frequent distracting calls that do not benefit the cause.

The competence and professionalism of a lawyer play a key role in solving a client’s problem. Not all lawyers or legal counsels have the same specialization and wide practical experience. An experienced specialist, after a thorough analysis of the information provided by the client, will honestly inform the client about the degree of prospects of the case and will never advise spending money on a hopeless struggle without the possibility of obtaining a positive result. This principle closely echoes the principles of humanism, humanity, ethics, confidentiality of information, etc., which are professed by professionals in their field – lawyers and legal counsels. People should remember and adhere to the main principle – it is better to apply for a legal service a year earlier than it is needed than a minute later (i.e. if you have already committed an inevitable action, it is impossible to correct it without the advice of a lawyer).

The most common questions are about the cost of legal services and the compliance of the results of such services with the expectations of the client. It is no secret that the cost of legal services is formed taking into account the complexity of the case, the qualifications of the specialist and, most importantly, the amount of time that a lawyer needs to spend to achieve the desired result. To avoid misunderstandings, it is necessary to clearly state in the contract for the provision of legal services what services should be provided, what is their contractual cost, what is the responsibility for services not provided or of services of poor quality, what actions the Parties should take if the number of services changes in the process of providing them, etc. It is clear that in some cases (for example, complex court cases or even when developing and agreeing on an agreement with a counterparty, when there are a lot of comments and suggestions and they are constantly changing), it is difficult to immediately predict the amount of time spent by a lawyer and, accordingly, the cost of the service. Therefore, the parties should carefully agree on the rates for possible additional services or the cost of hourly legal fees.

Most often, clients can express their dissatisfaction both because of the cost and because of the quality (completeness) of the services provided by a lawyer in cases where a complex court case is being considered, where each of the parties has its own arguments and evidence. At the same time, for some reason, each of the parties to the dispute believes that it is they who should win 100%, forgetting that justice in Ukraine is carried out only by the court, which, in its opinion, evaluates the evidence provided by the parties and makes a decision. Usually in such cases, a person is inclined to accuse the lawyer of non-professionalism, that is, to find the culprit for his troubles, but this is usually not the case, although sometimes there are cases of unprofessional or negligent attitude of lawyers to the case or the provision of unreasonable guarantees to the client regarding the guaranteed win of the case in court.

To make your work with a lawyer pleasant, mutually beneficial and productive, it is advisable to adhere to the following recommendations.

Recommendations to the lawyer:

  • it should be remembered that a client is the main person who needs to be provided with the most professional services and the best service;
  • you should carefully study the client’s request, the documents provided, analyze the judicial practice on this issue, etc.;
  • it is necessary to explain in detail to the client the features of the case, the positive and negative aspects of various solutions, further developments are possible, what services will be provided to the client when solving a specific issue;
  • you should provide the client with detailed information about the cost of legal services, fees, additional costs, etc. and help analyze the feasibility of making certain monetary expenditures;
  • you should inform about the timing of the provision of services, possible postponements or postponements of litigation, etc.;
  • you should inform the client on all possible risks in the process of providing services and help prepare for participation in court cases.

Recommendations to the client:

  • it is necessary to describe your issue in detail, provide the lawyer with all the necessary documents and other evidence, and clearly articulate the desired consequences;
  • it is necessary to comply with all conditions agreed with the lawyer, to immediately inform the lawyer of any new circumstances or changes that have occurred;
  • it is necessary to pay the cost of legal services in a timely manner;
  • you need to be understanding and respectful of the lawyer’s working hours and disturb him outside the schedule only in urgent cases.

Finally, if you do not want to have unpleasant situations in dealing with lawyers, follow the above recommendations and carefully choose qualified lawyers.

Posted on Leave a comment on TOP-5 judgments on tax disputes for the first half of 2022

TOP-5 judgments on tax disputes for the first half of 2022

We are sure that no one will be surprised by the results of our analytical work to determine the most significant category of litigation among the total number of court decisions contained in the Unified State Register of Court Decisions since its launch on June 01, 2006.

Undoubtedly, tax disputes are considered to be the mentioned category of litigation.

Their relevance is really difficult to overestimate.

Despite the branching of the tax legislation of Ukraine, a taxpayer can often face inconsistency in the settlement of a particular issue (the so-called conflict of law), or, on the contrary, might not find a way to solve it (the so-called gap in the legislation).

The above often becomes the basis for the tax authority to decide on the need for the taxpayer to pay the amount of taxes (for example, corporate income tax or personal income tax, etc.) or a generally obligatory fee that has not been paid or underpaid by the latter, and / or the application of penalties for violation of the requirements of the tax legislation of Ukraine, in the opinion of the tax authority, by charging penalties for the delay in fulfilling the taxpayer’s duty (duties), exhaustively set forth in Art. 16 of the Tax Code of Ukraine.

On the other hand, the legislator also gave the tax authority the right to file a lawsuit against a taxpayer having a tax debt to collect funds from his bank accounts (see below) or to seize the taxpayer’s funds or recognize disputed transactions invalid, etc.

Many years of experience of the Law Company “PERVAYA YURIDICHESKAYA” shows that the legal relationship of the taxpayer with the tax authority should be based on the requirements of the current legislation, knowledge of which is owned by professionals in their field – lawyers (legal counsels) in the field of tax law.

We assume that not all taxpayers are aware of one of the principles of the tax legislation of Ukraine on the presumption of the legitimacy of the taxpayer’s decisions if the rule of the law or other regulatory legal act issued on the basis of the law, or if the rules of different laws or different regulatory legal acts imply an ambiguous (multiple) interpretation of the rights and obligations of taxpayers or regulatory authorities, as a result of which it is possible to make a decision in favor of both the taxpayer and the regulatory authority.

However, having promptly engaged a specialist – a lawyer to resolve a tax dispute at the stage of its occurrence, the taxpayer finds himself in a situation prone to resolution in favor of the latter.

Of course, there is also a way to avoid any dispute with the tax authority by satisfying the request regarding the support by the law firm of the economic activities of the taxpayer (legal entity or individual entrepreneur) on a regular basis in terms of compliance of such activities with the requirements of Ukrainian legislation.

In any case, the Law Company “PERVAYA YURIDICHESKAYA” has specialists in its staff in the field of tax and commercial law, specialists in accounting and other specialists. At the same time, our company also cooperates with lawyers in the implementation of judicial representation of the interests of the clients of the Law Company “PERVAYA YURIDICHESKAYA”, on an outsourcing basis.

Having numerous cases of positive settlement of tax disputes of our clients, both at the stage of administrative appeal of decisions (actions or inaction) of the tax authority, and at the stage of their judicial appeal, we are sure that the involvement of lawyers (legal counsels) in the settlement of tax disputes retains valuable time and money of clients that can be invested in another business.

Below are the Top 5 judgments on tax disputes taken by the courts in the first six months of 2022 in view of raising an awareness of this issue.

The reorganization of a taxpayer (legal entity), which, in particular, entails a change in the location of a legal entity whose economic activity was terminated by reorganization, merging with another legal entity, does not relieve its successor from the burden of fulfilling the tax obligation of the legal entity, which is terminated.

This conclusion was made by the Khmelnytskyi District Administrative Court when deciding to satisfy the claims of the Main Department of the State Tax Service in the Khmelnytskyi region against the taxpayer for the recovery of funds to pay off the tax debt in resolving a litigation in the case No. 560/14821/21 on an administrative claim (Decision of February 27, 2022 in case No. 560/14821/21).

The court established the existence of a tax debt of a legal entity-taxpayer, which was terminated by reorganization by joining the defendant in the case. The presence of the aforementioned tax debt is confirmed by the opinion of the Supreme Court in case No. 560/4309/18 (decision dated March 23, 2020). Instead, the argument against satisfaction of the claims was the fact that the tax claim, which is the basis for the plaintiff’s appeal to the court, was not sent to the court, precisely at the location of the latter.

In this case, the Khmelnytskyi District Administrative Court drew attention to the fact that, according to subparagraph 97.4.1 of paragraph 97.4 of Art.97 of the Tax Code of Ukraine (hereinafter referred to as the Tax Code of Ukraine), the person responsible for the repayment of monetary obligations or tax debt of a taxpayer is: in relation to a liquidated taxpayer – a liquidation commission or other body conducting liquidation in accordance with the legislation of Ukraine.

Taking into account the above order, the court recognized as lawful the actions of the Plaintiff regarding the direction of one of the tax claims – at the location of the liquidation commission of the terminated legal entity, and the other – at the location of the defendant, which, in the opinion of the court, does not negate the plaintiff’s right to take coercive measures provided for by law to pay off the tax debt.

The indication by the tax authority in the decision to refuse to register a tax invoice in the Unified Register of Tax Invoices that the taxpayer’s documents are missing when the latter submits explanations, without specifying them, is not sufficient grounds for refusing to register tax invoices, since the regulatory authority must indicate objective circumstances that prevent the registration of a tax invoice, taking into account the absence of such documents, while an assessment must be given to those documents that are actually submitted by the taxpayer.

The above conclusion is contained in the decision of the Lvivskyi District Administrative Court dated February 28, 2022 in case No. 380/25176/21 on satisfaction of the claims of a legal entity against the Main Department of the State Tax Service in the Lviv region, the State Tax Service of Ukraine on recognizing the decision of tax authorities as illegal on registration of invoices in the Unified Register of Tax Invoices (hereinafter referred to as the controversial decision), as well as the obligations of the State Tax Service to register disputed tax invoices.

The prerequisite for the adoption of a controversial decision by one of the defendants was the fact that the taxpayer (plaintiff) submitted explanations to one of the defendants with the addition of documents confirming the fact that business operations were carried out in order to register disputed invoices, as a result of which the defendant decided to refuse their registration. At the same time, as the court aptly pointed out in the above-mentioned decision on the case, the said defendant did not emphasize in the disputed decision which documents were lacking to make a decision on the registration of tax invoices.

In this regard, the Lvivskyi District Administrative Court drew attention to the conclusions of the European Court of Human Rights, given in the decision of February 10, 2010, in the case “Seryavin and others v. Ukraine”: The principle of validity of the decision requires the subject of power to take into account both the circumstances, the obligatory consideration of which is directly indicated by the law, and other circumstances that are important in a particular situation. To do this, it must carefully collect and examine materials that are of evidentiary value in the case, for example, documents, explanations of persons, etc. At the same time, the subject of power should avoid making unmotivated conclusions, justified by assumptions and unverified facts, and not by specific circumstances. A decision that is unfavorable for a person must be motivated.”

When determining the tax base for real estate tax, the defining features are the features of real estate, and not the features of its owner. After all, according to the analysis of the provisions of the Tax Code of Ukraine, which regulate the issues of its collection, it is seen that the concept of “taxpayer” is not identical to the concept of “object of taxation”.

The essence of the court case No. 380/23824/21 on the claim of an individual to the Main Department of the State Tax Service in the Lviv region on the recognition as illegal and cancellation of tax notices-decisions is as follows. The position of the tax authority is that the buildings for agricultural purposes belong by right of private ownership to the plaintiff, who is not an agricultural producer, and therefore, such immovable property is subject to taxation according to the general rules for levying a tax on immovable property other than a land plot.

According to paragraph “g” of subparagraph 266.2.2 of Article 266 of the Tax Code of Ukraine, buildings, structures of agricultural producers (legal entities and individuals) classified as “Buildings for agricultural purposes, forestry and fisheries” (code 1271) according to the State classifier of buildings and structures DK 018-2000, are not subject to taxation and are not leased, rented out, loaned by their owners.

In this regard, during the resolution of the litigation, the Lvivskyi District Administrative Court came to the conclusion that the use of pigsties and the weighing office, the intended purpose of which is their use in agricultural activities, owned by the plaintiff, as the founder of an agricultural commodity producer, on the basis of the right of ownership, complies with the essential attribute of an agricultural commodity producer. This fact provides for the application to the mentioned buildings and structures of a tax benefit in the form of non-taxation of such objects.

In addition, as the court noted in its decision of February 25, 2022, the Main Directorate of the State Tax Service in the Lviv region did not provide evidence that the plaintiff used the property belonging to him on the right of ownership in any other activity other than agricultural activity.

The actual change in the provisions of the Tax Code of Ukraine on the basis of a resolution of the Cabinet of Ministers is unacceptable due to the fact that, according to p. 2.1 Art. 2 of the Tax Code of Ukraine changing the provisions of the Tax Code of Ukraine can be carried out exclusively by amending this Code.

Due to the conclusions given in the decision of February 25, 2022, in case No. 600/2899/21-а, the Seventh Administrative Court of Appeal recalled that the resolution of the Cabinet of Ministers of Ukraine dated February 03, 2021 No. 89 “On reducing the validity period of restriction in terms of the moratorium on the conduct of some types of inspections” which determined to reduce the period of validity of the restrictions established by paragraph 52-2 of subsection 10 of section XX of “Transitional provisions” of the Tax Code of Ukrainein terms of the moratorium on certain types of inspections, and then allowing them to be carried out in compliance with paragraph 77.4 of Art. 77 of the Tax Code of Ukraine, contradicts the norms of paragraph 52-2 of subsection 10 of section XX of “Transitional provisions” of the Tax Code of Ukraine.

After all, according to par. 1 clause 52-2 of subsection 10 of section XX of the Tax Code of Ukraine (as amended by the Law of Ukraine dated 17.03 .2020 No. 533-IX and Law of Ukraine dated 05.13.2020 No. 591-IX) a moratorium was established to conduct documentary and factual inspections for the period from March 18, 2020, to the last calendar day of the month (inclusive), in which the quarantine established by the Cabinet of Ministers of Ukraine on the entire territory of Ukraine ends in order to prevent the spread of coronavirus disease (COVID-19) on the territory of Ukraine, except for a clearly defined list of inspections, which did not include an inspection appointed by the defendant in relation to the plaintiff by a controversial order.

Satisfying the taxpayer’s claims against the Main Directorate of the State Tax Service in the Chernivtsi region on declaring illegal and canceling the order to conduct a documentary unscheduled audit, the court also applied the principles set forth in paragraph 4.1.4 of art. 4 and a clause on the priority of application of abstract 1 of paragraph 52-2 of subsection 10 of section XX of the Tax Code of Ukraine.

If the employer pays a single contribution in the amount of at least the minimum contribution for an employee who is also an individual entrepreneur not receiving income from economic activity, the Law of Ukraine “On the collection and accounting of a single contribution for compulsory state social insurance” dated 08.07.2010 No. 2464-VI excludes the obligation of the latter to pay a single contribution by an individual entrepreneur in the period of its payment by the employer.

The above conclusion was reached by the Eighth Administrative Court of Appeal during the consideration of the appeal of the Main Department of the State Tax Service in the Lviv region against the decision of the Lvivskyi District Administrative Court of October 06, 2021, in case No. 380/11457/21 on the administrative claim of an individual entrepreneur against the Main Directorate of the State Tax Service in the Lviv region on recognition as unlawful and cancellation of the requirement to pay the debt. By the decision of February 25, 2022, the above-mentioned appeal was left without consideration, and the decision of the Lvivskyi District Administrative Court was left unchanged.

In this regard, the court recalled that the necessary conditions for a person to pay a single contribution to obligatory state social insurance is the implementation by such a person of economic activities and the receipt of income from such activities, which is the basis for accruing single contributions. Consequently, it is the income of a person from economic activity that is the basis for accrual, however, under any conditions, the size of the single contribution cannot be less than the minimum monthly insurance premium. In the case when a person is an employee for whom the employer pays a single contribution in the amount of its minimum size, the purpose of collecting a single contribution for obligatory state social insurance is achieved through its payment by the employer.

We shall note that a feature of administrative proceedings is that the duty (burden) of proof in a dispute rests with the defendant – the tax authority, which must provide evidence indicating the legality of its actions or the legality of the decisions taken. If the plaintiff is a tax authority, then the general rule of Art. 77 of the Code of Administrative Procedure of Ukraine is applied on the need to prove by each party to the litigation all the circumstances on which its claims and objections are based.

Analysis of the above court decisions gives grounds to conclude that neither the requirement of the law to establish a moratorium on the conduct of an audit, nor the assumption that it is possible to resolve a tax issue due to the taxpayer’s independent access to tax legislation, guarantees such a taxpayer the resolution of the tax dispute that has arisen in favor of the latter, in the absence of involvement of specialists (lawyers, legal counsels) in the field of tax law.