Economic Sciences / 7. Accounting and Audit
Ph.D.
in Economics Ivanova Lyudmyla Borysivna
Postdoctoral student, Kyiv National Economic University by Vadym Hetman, Ukraine
Restructuring of tax debts in crisis management
of debtor entity in the context of changes to the Tax Code of Ukraine
Tax legislation is one of important components of regulation of processes
of instalment, deferment and debt
relief of subjects of real economy. In bankruptcy proceedings,
such measures are carried out under the settlement agreement. The procedure of
settlement agreement, which must be healthful of a financial nature, according
to the Law on Bankruptcy involves an agreement between the debtor and creditors
regarding deferral and (or) instalments and debt relief (cancellation) of debtor’s debts by creditors. In many bankruptcy
proceedings a tax collection department is associated as primary lender, and
there are questions regarding the restructuring of tax debt and regulatory
support of displaying it in accounting.
Settlement Agreement is governed by a number of regulations. With the
implementation of the Tax Code of Ukraine certain legislative acts were
repealed, and a number of legislation was changed. Additions and adjustments
were made to some regulations as concerns to the Law on Bankruptcy. The Law of
Ukraine of 21.12.2000, ¹ 2181-III «On the repayment obligations of taxpayers to
budgets and state trust funds (the Law ¹ 2181-III) was repealed. At present the
basic fundamentals, theoretical and practical framework for the taxpayers'
repayment obligations to the budget are the regulations of the Tax Code Chapter
9 "The Repayment of taxpayers Debt." A number of provisions and
procedures in force of 01.01. 2011, governing deferral, instalments and debt relief of general nature (it does not apply to bankruptcy proceedings)
were created and approved to these regulations.
However, on the basis of the Law ¹ 2181-III (which was repealed) the
provisions that have been created with the specifics of crisis management of
debtor entity continue to apply. General procedure of debt restructuring has
significant differences compared with procedure in bankruptcy. [2] Therefore, a
number of questions do not have full interpretation, or they are contradictory
and unclear. For example, a list of taxes and fees which are due to instalments
(deferral) and debt relief isn’t provided. A regulation when a time period
is defined during which financial penalties are not accrued became inoperative.
Also, there is a lack of updated documents which clearly define conditions and
a form for deferral (instalment) of tax debt in crisis management. On this
basis we can conclude that the regulatory support of accounting concerning to
restructuring of debts does not meet such important principle as complexity.
With a number of changes to the TCU and the Law on Bankruptcy the situation
with a lack of integrity on the regulatory framework of accounting became
worse. Since 2013 the Law of Ukraine "On amendments to the Law of Ukraine
" On restoring the debtor's solvency or bankruptcy» ¹ 4212-VI of December
22, 2011 (the Law ¹ 4212-VI), which regulate not only court procedures of
bankruptcy and pre-court rehabilitation measures, including measures of
financial debt restructuring on their own stage – signing the settlement
agreement. In this case it is not clear what rules will control debt
restructuring in the rehabilitation of pre-court procedures: including the Law
¹ 4212 or rules laid in the regulations to TCU.
Moreover, recently created deferral (instalment) procedure of monetary
obligations (tax debt) of taxpayers’ ¹ 1036 of 24.12.2010 to regulations of the
TCU was changed. Instead, deferral (instalment) procedure of monetary
obligations (tax debt) of general taxpayers confirmed by the Instruction ¹ 1261
of the Ministry of Finance of Ukraine of 11.30.2012 (the Procedure ¹ 1261),
which correlates closely with the regulations of the CMU of December 27, 2010 ¹
1235 "On approval of the list of circumstances (the Resolution ¹ 1235),
indicating the presence or threat of tax debt accumulation, and evidence for
the existence of such circumstances" was adopted. According to this list,
a number of subjects of debtor while in pre-court rehabilitation have a right
for restructuring tax debts, but controversially, whether they can rely on
preferential order peculiar to bankruptcy on such grounds as: free of charge,
unlimited terms, and unlimited sums of transaction or not.
Debt
relief (cancellation) of general nature occurs only if the disaster. In bankruptcy the debt relief
is: under liquidation proceedings without involving an assignee of debt, in a
certain bankruptcy proceeding – the settlement according to the terms of
outstanding debt. The term is either more three than years or, three years to
applying for the bankruptcy proceedings. In other words, we are talking about
writing off bad debt. In current activities of the enterprise during the
bankruptcy proceedings debt may appear which cancellation is regulated by the
"Procedure of debt relief (cancellation) and instalment (deferred) by the
State Tax Service of taxpayers’ tax debt on the basis of a settlement agreement
in bankruptcy case and tax clarification of regulations of this procedure"
of November 21, 2000 ¹ 600 (the Procedure of 600). However, as the result of
regulations represented in later letters of tax authorities, he puts in
question. This procedure of regulatory support of accounting restructuring and
debt relief discourages of solvency restoration of the debtor entity of real
economy.
LITERATURE:
1. The Law of Ukraine "On amendments to the Law of
Ukraine" On restoring the debtor's solvency or Bankruptcy» ¹ 4212-VI of December 22, 2011 [electronic resource]: According to the website / The Parliament of Ukraine –
Mode of access: http://zakon. rada.gov.ua / cgi-bin / laws / main.cgi? nreg =
2343-12
2. Ivanova L.B. Regulatory support in accounting of subjects of real economy in bankruptcy
proceedings – settlement agreement [coll. of scientific works] / L.B. Ivanova. – K. KNEU, 2012. – Publ. 27. P. 416-428
3. The Instruction of the SAT of November 21, 2000 ¹ 600 on the approval of the "Procedure of the State Tax
Service of debt relief (cancellation) and installment (deferred) of taxpayers’ debt on the basis of a
settlement agreement in bankruptcy proceeding" / Liquidation: procedure and accounting [Text
]: a collection of systematic legal system / comp. O.B. Kushyna, I.O.Lvova – K. Blitz-Inform, 2009. – Publ. 3 – P. 147.
4. Tax Code of
Ukraine of December 2, 2010 ¹ 2755- VI [electronic resource]: according to the website STSU – Mode of access: http://www.sta.gov.ua/control/uk /publish/article?art_ id = 300560 & catid = 46733