The NAAU committee on customs and tax law has prepared recommendations on the use of settlement transaction registrars and software settlement transaction registrars by law offices and bar associations.
The legal position on this issue was formulated by the head of the committee Yakiv Voronin.
According to para. 1 of the preamble of the law “On the use of registrars of settlement operations in the field of trade, catering and services” dated 07/06/1995 No. 265/95-ВР. This law defines the legal basis for the use of payment transaction registrars and software payment transaction registrars in the field of trade, catering and services.
Therefore, Law No. 265/95 regulates legal relations in the following areas:
According to Part 1 of Article 1 of the Law “On Advocacy and Advocacy”, advocacy is the independent professional activity of a lawyer to provide protection, representation and other types of legal assistance to a client.
According to Article 131-2 of the Constitution, the Bar acts to provide professional legal assistance in Ukraine.
Law No. 265/95 does not contain a definition of the concept of “fields of trade, public catering and services”, just as the law “On Advocacy and Advocacy” does not provide that advocacy activities belong to the specified fields.
The terms used in Law No. 265/95 (goods (service), buyer, seller, price) do not correspond in substance and form to the terminology used in a special law, which is the law “On Advocacy and Advocacy” (legal aid, client, attorney, fee).
Analyzing Law No. 265/95, it can be concluded that it extends its effect to entities other than law offices and associations. Subjects that carry out activities in the spheres of trade, catering and services are performers, sellers and consumers. The legal relationship between these parties is regulated by the law “On the Protection of Consumer Rights”.
This is confirmed by clause 15 of article 3 of Law No. 265/95, according to which business entities that carry out settlement operations in cash and/or non-cash form (using electronic means of payment, payment checks, tokens, etc.), when selling goods (providing services) in the field of trade, public catering and services, are obliged to: provide in paper and/or electronic form to the buyer of goods (services) at his request a check, invoice or other settlement document certifying the transfer of ownership of them from the seller to the buyer in order to fulfill the requirements of the law “On the Protection of Consumer Rights”. Violation of this rule entails the responsibility provided for by the specified law, but cannot be the basis for applying to the violator administrative or financial sanctions provided for by legislation on taxation.
In accordance with the preamble of the law “On the Protection of Consumer Rights”, this law regulates relations between consumers of goods, works and services and manufacturers and sellers of goods, contractors and service providers of various forms of ownership, establishes the rights of consumers, and also determines the mechanism of their protection and the basis of implementation of state policies in the field of consumer rights protection.
On the basis of the above, it can be concluded that Law No. 265/95 establishes the principles of application of РРО/PRРРО in the sale of goods (provision of services) in the sphere of trade, public catering and services and concerns the sale of goods (services) in the specified spheres to consumers to whom it is distributed the effect of the law on the protection of consumer rights.
The provisions of the law on the protection of consumer rights do not apply to the relationship between a law firm or an association and a client (the Supreme Court reached a similar conclusion in its ruling dated 11/24/2021 in case No. 191/2617/19), and therefore to the provisions of Law No. 265/95 cannot be applied to them.
At the same time, taking into account that for violating the requirements of Law No. 265/95 on the taxpayer, the tax authorities can apply financial sanctions, in order to prevent their application, we recommend that the law office or association, before starting settlement operations, contact the tax authority to obtain
individual tax consultation, justifying his request by referring to the fact that Law No. 265/95 does not extend its effect to law offices and associations. If the individual tax advice provided by the tax authority contradicts the rules or content of the relevant tax or fee, it can be challenged in court as a legal act of individual action.
Cases when, according to Law No. 265/95, the RR/PRRO does not apply:
– Pursuant to clause 14 of Article 9 of Law No. 265/95, settlement transaction registrars and/or settlement transaction software registrars and settlement books are not used when making payments for services in the case of making such payments exclusively with the help of remote banking systems and/ or money transfer services.
– If the payment of the fee is made by transfer to the bank account (IBAN) of the law office or association, such payment is not a settlement operation and does not require the application of PRO/PRRO.