Who can give tax records? Allow me to introduce … or «tax representative» for the entrepreneur!

Today’s entrepreneurs — a «jack of all trades», which in addition to its business still find time for tax accounting, reporting delivery, submission of applications, correspondence with the tax authorities. And how to be an entrepreneur for a variety of reasons are unable to personally engage in tax accounting, to go to the tax office, to communicate with the tax authorities, etc.? In this case, the solution to such a «busy» businessman will involve «tax representative» *. What is this person, what are the powers and responsibilities, how it differs from the tax payer? Answers to these questions can be found in the Tax Code of Ukraine, which regulates relations in the sphere of taxation.

First of all, define a range of people that fall under the concept of taxpayers who are entitled to represent their interests in their collection. According to Art. 15.1 Tax Code of Ukraine taxpayers are recognized, including, and sole proprietors with receiving / transmitting objects of taxation or carry out taxable activities and who are responsible for the payment of the relevant taxes and fees. Feature of the current tax laws of the country is enshrined in law st.17.1.2 Tax Code of Ukraine axpayer to have an authorized representative to represent their interests in the control bodies. More extended Institute «tax representative» is considered in Art.19 Tax Code of Ukraine, which states that the taxpayer does business related to the payment of taxes, either personally or through a representative. Art. 19.2 Tax Code found that representatives are persons representing the legal interests of the taxpayer and acting on the basis of law or power of attorney. At the same time, the participation of entrepreneurs in tax relations person does not deprive him of his right to have a representative, as well as the existence of «tax representative» does not deprive the owner of the right to self-involved in such a relationship. In the Tax Code also often refers to «legitimate» representative of the taxpayer. In the context of Article 19 of the Tax Code appropriate to assume (in general) the concept of «legitimate» representative and a representative of the taxpayer identical to each other. On the basis of article 47 of the Tax Code, as appropriate «tax representatives» are responsible for the failure, the violation of the order of filling tax reporting documents, violation of the terms of supply, inadequate information. At the same time, according to Art. 36.5 Tax Code of Ukraine responsible for any failure to perform tax liability (in general) lies with the tax payer. Representatives of the taxpayer may be as much as he needs. Ambiguity in this matter, as a direct restriction on their number is not specified in the Tax Code and in art. 19 Tax Code directly uses the term «tax representative» in the plural.

In Art. 19.3 NKU found that «tax representative» has the same rights as taxpayers. Recall that the taxpayer’s rights are listed in Art. 17 Tax Code and are pretty extensive list. Apart from the specific «set» of rights in this list, Art. 17.2 Tax Code of Ukraine uses a special clause on a taxpayer (and therefore his «tax representative») of other rights under the law. Of course, the implementation of such rights may be «tax representative» only in levying taxes and fees. Categorical wording of Art. 19.3 Tax Code identity and rights of the taxpayer and his representative also gives last quite broad discretion in the conduct of affairs relating to the calculation and payment of taxes.

Note that the term «cases relating to the payment of taxes,» as used in Art. 19.1 Tax Code — in this Code and other laws is not treated. ** For example, in the article. 36 Tax Code indicated that the obligation of the taxpayer to calculate, declaration and / or payment of tax or duty may be fulfilled with the assistance of a representative. In addition, a number of articles Tax Code of Ukraine refers to the right of the taxpayer to perform certain actions via a representative (participation in a tax audit, receiving requests from the Internal Revenue Service, filing of applications, etc.). Therefore, analyzing the rules of the Code, it is logical to assume that the list of «cases relating to the payment of taxes» includes not only the direct payment of taxes, but the tax accounting, preparation and submission of reports, statements, explanations, as well as obtaining appropriate permits, explanations, forms, licenses and other documents, and other actions that may be employed to carry out. The taxpayer when you make your relationship with «tax representative» has the right to determine the specific list of actions for which a «helper» is entitled. For example — the submission of reports, license, answers to written questions of tax, etc. At the same time, if GCC is installed directly the need for personal involvement of the taxpayer in some processes or situations related to the payment of taxes (eg, Art. 49.6, 70.5, 183.7 Tax Code of Ukraine, etc.) to solve such problems without the personal presence of the entrepreneur, attracting tax representative — will not work.

At the same time, it is necessary to clarify how the «tax representative» can exercise their authority. Art. 19.2 TCUentions two ways, more «common» — on the basis of the Law and concrete — by proxy. *** In the first case, «tax office» can be, for example, under an agency agreement (Section 68 of the Civil Code of Ukraine (hereinafter Civil Code), as well as in the framework of representation (Gl.17 Civil Code), etc. Based on st.1000 Civil Code, under an agency agreement, one party (attorney) undertakes to perform on behalf of and at the expense of the other party (the principal), certain legal actions. attorney in this situation would be «tax representative», and the principal — the taxpayer. Pravochin, carried out by an attorney, creates, modifies, terminate civil rights and obligations of the principal. Thus, the contract should stipulate an order period of performance and the content of the order (such actions must be lawful, specific and feasible), etc. «tax representative» is obliged to fulfill the instructions given to him personally or if it is provided agreement to transfer the execution agency to another person (subject to the provisions of Art. 1005 of the Civil Code). notarization requirements (generally) of such a treaty in the Tax Code of Ukraine and is not contained in the Civil Code. To perform its functions «tax representative» has the right to receive from the principal’s letter of attorney for certain legal actions under the contract of agency which the entrepreneur is obliged to issue, in accordance with Art. 1007 of the Civil Code. To obtain a valid power of attorney to the same rules as for the power of attorney, written out with the representation (see below).

Representation, according to Art. 237 of the Civil Code, a legal relationship in which one party (the «tax representative») is required or entitled to make Pravochin on behalf of the other party (the taxpayer), which she represents. Art. 244 of the Civil Code established that the representation that is based on the contract, and can be carried out by proxy. Use of the word «may» rather than «shall» in this article of the Civil Code says that legal representation, if the contractual arrangements are possible without the use of a power of attorney (for example, by contract). In the ability to make some cases — to meet your future «tax» problems, as well as due to the legal nihilism of some staff of the fiscal authorities, the entrepreneur is still advisable to give out their «tax representative» relevant power of attorney. Power of attorney — this is a written document issued by a representative for representation before third parties, confirming his authority. The power of attorney at the «tax representative» can be as general («General») — to exercise any legal action of various kinds in the area of ??taxation, and special (single) — to perform specific actions. Note — art. 19.2 Tax Code of Ukraine provides that the power of attorney issued by the owner shall be certified in accordance with applicable law.

At the request of the Civil Code st.245 form of proxy should be form Pravochin. Since, in accordance with Art. 46.1Tax Code of Ukraine tax return — this is a document provided by the taxpayer, a power of attorney to file such reports «tax representative» should be executed, at least in writing. In this case, art. 245 of the Civil Code contains an exhaustive list of cases in which the notarized power of attorney is needed. Representation and management of cases relating to the payment of taxes in such a list is not mentioned. Other requirements of the need notarized power of attorney for such activities in any Tax Code of Ukraine or in the Civil Code does not contain (except pereporucheniya). Therefore, according to the «general» rule of attorney taxpayer — individual representative to conduct affairs related to the payment of taxes is made in writing. If desired, the taxpayer, pursuant to art. 58 of the Law of Ukraine «On Notary» from 02.09.1993g. Number 3425-XII, said power of attorney can be notarized. When making a power of attorney should pay attention to the correctness of the details of its mandatory under Gl.17 Tax Code of Ukraine.

In practice, it is possible that an entrepreneur without the ability to independently conduct «entrepreneurial record,» concludes a contract with any contractor for accounting services (services), and both parties believe that this agreement will be sufficient to «tax representation.» Of course, such an agreement on the provision of «accounting» of services may contain elements of the relationship of representation. But in this situation — because of the nature of the differences of these two types of civil relations, yet it is advisable to make «tax office» and the provision of accounting services to various treaties. The contract of the tax office (as in the trust deed, and in the framework of relations representative) must specify a clear list of rights and responsibilities «tax representative», with reference to the specific provisions of the Civil Code and the Tax Code of Ukraine.

In addition, at the present time and questions about the possibility of filing tax statements by the entrepreneur himself, and another person, for example, hired an accountant, courier etc. Paragraph 3 of Art. 49 TCU provides several ways to provide tax returns to the bodies of the STA, including — in person or by the taxpayer by an authorized person. Naturally, such authorized persons are «tax representatives» entrepreneur (if you are delegating to them the owner of the rights under the contract or by proxy). Authorized to provide tax reporting can be an entrepreneur and employees. Note that provision (maintenance, service) tax returns to the bodies of the STA may provide official duties, such as courier, secretary, messenger, accountants, etc. Filing tax returns such persons is not contrary to paragraph 3 of article 49 of Tax Code of Ukraine as employees for the implementation of these actions are authorized **** employer-taxpayer. In addition, the operator has the right to instruct the representative to file tax returns by courier (mail) service. In this case, the courier, in accordance with Art. 1000 of the Civil Code, will be tasked to deliver statements to the bodies of the STA, and he, on the basis of Art. 1004 of the Civil Code, and shall be authorized to take such actions *****. Thus, a person may be authorized to file a tax return in the bodies of the STA, at least in the following cases:

— To be a «tax representative» of the taxpayer (including by proxy);

— An employment relationship with the employer, for which submission of declaration to the tax authorities is part of its work (eg, accountant);

— To be an entrepreneur attorney under an agency agreement.

In case of refusal to accept a tax return from an authorized person, the taxpayer may appeal the actions of the tax authorities in a judicial or administrative order.

Published in July 2013

* Here and below «tax representative» means a representative of the taxpayer
** In a letter dated 31.03.2011 № 176-0-2-11-20 Representatives taxpayers Ministry of Justice is almost completely «duplicated» the provisions of the Civil Code and the Tax Code of Ukraine
*** For example, the city of Sevastopol STA believes that «tax office» is possible only on the basis of documented in compliance with applicable law attorney, link:
**** Article 21 of the Labour Code of Ukraine (hereinafter — the Labour Code) provides for the conclusion of an agreement between the employee and the employer under which the employee agrees to perform the work described in this agreement. At the request of Article 29 of the Labour Code the employer before the employee is obliged to explain his rights and duties, usually by reference to the job description, which specifies, inter alia, the duties of the employee.
***** Typically, when sending correspondence by courier receipts are issued, declarations, etc. documents that are relevant order confirmation for the delivery reports.