After the initiation of a bankruptcy case and the introduction of a moratorium on meeting the demands of creditors, the obligation of the enterprise to pay taxes and fees in the established order and in the amounts determined by the results of the economic activity after the introduction of the moratorium and during its validity does not cease.
The imposition of fines during the moratorium is illegal. This was emphasized by the Supreme Court as part of the panel of judges of the Cassation Administrative Court when considering case No. 803/1835/16 .
A moratorium on the satisfaction of creditors' demands is a suspension of the debtor's performance of monetary obligations and obligations to pay taxes and fees (mandatory payments), the deadline for which has reached the date of the introduction of the moratorium, and the termination of measures aimed at ensuring the fulfillment of these obligations obligations and obligations regarding the payment of taxes and fees (mandatory payments) applied to the decision to introduce a moratorium.
In accordance with the fourth part of Article 12 of the Law of Ukraine "On restoring the debtor's solvency or declaring him bankrupt", a moratorium on meeting the demands of creditors is introduced simultaneously with the initiation of bankruptcy proceedings, which is noted in the decision of the commercial court.
During the moratorium on the satisfaction of creditors' demands: collection on the basis of executive documents and other documents subject to collection in accordance with legislation is prohibited; no penalties (fines, penalties), other sanctions are not applied for non-fulfilment or improper fulfillment of monetary obligations and obligations to pay insurance premiums for mandatory state pension insurance and other types of mandatory state social insurance, taxes and fees (mandatory payments).
According to Article 1 of the specified Law, the term "moratorium on satisfaction of creditors' claims" is defined as the suspension of the debtor's performance of monetary obligations and obligations to pay taxes and fees (mandatory payments), the deadline for the performance of which has reached the date of the introduction of the moratorium, and the termination measures aimed at ensuring the fulfillment of these obligations and obligations regarding the payment of taxes and fees (mandatory payments) applied before the decision to introduce a moratorium.
From the analysis of the above, it can be seen that the above norms regulate the legal relations that arose between the debtor and creditors in connection with the debtor's inability to fulfill existing obligations after the set deadline and are aimed at restoring the debtor's solvency or its liquidation in order to take measures to satisfy the court-recognized creditors' requirements.
In accordance with the first part of Article 11 and the fourth part of Article 12 of the Law "On restoring the debtor's solvency or declaring him bankrupt", the moratorium is introduced simultaneously with the initiation of bankruptcy proceedings, which is noted in the decision of the commercial court. According to the seventh part of Article 12 of the Law, the moratorium shall be terminated from the date of termination of bankruptcy proceedings.
The provisions of Article 12 of this Law establish, in particular, the prohibition to charge a penalty (fine, penalty), other financial (economic) sanctions for non-fulfillment or improper fulfillment of monetary obligations and obligations to pay taxes and fees (mandatory payments) during the moratorium ), relate to requirements, obligations, which are covered by the concept of moratorium. These provisions shall be applied subject to the definition of moratorium above.
The circumstances of the case indicate that the plaintiff did not ensure the timely payment of the agreed tax liability within the deadline for payment – 19.02.2014. The disputed tax notice-decision obliges the plaintiff to pay a fine of 10%, which, taking into account the provisions of clause 126.1 of article 126 of the Criminal Code of Ukraine, is the basis for the conclusion that the payer will be held liable in the form of a fine for late payment of the obligation up to 30 calendar days inclusive. following the last day of the payment term of the monetary obligation.
In the case under consideration, the contested tax notification-decision was issued during the period when the proceedings in the bankruptcy case of the plaintiff were suspended, and the moratorium on meeting the demands of creditors was terminated, in turn, fines were charged for the period when the moratorium was not yet in effect was
It should be taken into account that the moratorium does not stop the debtor from fulfilling his monetary obligations and obligations to pay taxes and fees (mandatory payments). A moratorium on meeting the demands of creditors is one of the measures introduced to restore the debtor's solvency, in its content, the moratorium is only a suspension of the debtor's fulfillment of his monetary obligations to creditors and obligations to pay taxes, fees (mandatory payments), and not liberation from the latter.
With the initiation of a bankruptcy case and the introduction of a moratorium on meeting the demands of creditors, the obligation of the enterprise to pay taxes and fees in the prescribed manner and in the amounts based on the results of the implementation of economic activity after the introduction of the moratorium and during its duration, and to bear liability for violations of the legislation in the form of accruals, does not cease penalties. On the other hand, the imposition of fines during the moratorium does not meet the requirements of the law, that is, it is illegal.
At the same time, in accordance with the statement of creditors' claims, the Kovel ODPI asked the court to accept the creditors' claims against the debtor in the amount of UAH 51,224.33 (including UAH 23,377.27 of arrears for the payment of the single tax on legal entities). The creditor's claims were satisfied and repaid within the bankruptcy procedure, which is confirmed by the act of reconciliation No. 51880-03 and certificate No. 1456/20 dated December 2015.
Taking into account the provisions of the above norms and established circumstances in the case, the panel of judges of the Supreme Court believes that the court of first instance came to the correct conclusion that there are no grounds for satisfying the claim.