Tax authorities should be held liable for deliberately delaying the audit of the activities of Concord Bank, which is in the process of liquidation. This opinion was expressed by Dmytro Kasyanenko, attorney at law at Kasyanenko & Partners, in an exclusive commentary to UNN.
Context
On August 1, 2023, the National Bank decided to revoke Concorde's license . After that, in accordance with the bank's liquidation procedure, a liquidator from the Deposit Guarantee Fund was appointed. In addition, the State Tax Service launched a tax audit.
The first inspection lasted three months, and an act was drawn up based on its results in the amount of 700 thousand hryvnias. However, according to to co-owner of Concord Bank Olena Sosedka, "on the personal instruction of the head of the Verkhovna Rada Tax Committee, Danylo Hetmantsev, 392 million UAH were illegally added to this report." The bank's liquidator disagreed with this audit report and filed his objections to the document. After that, an additional audit was ordered, which is still ongoing.
"Regarding the maximum duration of the audit, it is worth noting that clause 78.1.8 of the Tax Code of Ukraine provides that if a bank is in the process of liquidation, a tax audit may be conducted by the decision of the supervisory authority without time limits until the liquidation procedure is completed. However, this does not mean that the audit can last unreasonably long, as there is a principle of reasonableness of terms," Kasyanenko said.
At the same time, according to the lawyer, tax officials should be held liable for deliberately delaying an audit.
"If it is proved that tax officials deliberately delay the tax audit, this may be qualified as abuse of office. According to the Criminal Code of Ukraine, such abuse may be grounds for criminal liability under Article 364 of the Criminal Code of Ukraine (abuse of power or official position). There are also possible consequences in the form of administrative liability under Article 166-11 of the Code of Administrative Offenses (violation of the procedure for conducting inspections of business entities).
Recall
The reason for the NBU's decision to revoke Concorde's license was the bank's alleged systematic violation of the requirements of the legislation on preventing and combating the legalization (laundering) of proceeds of crime, terrorist financing, and financing the proliferation of weapons of mass destruction. Although, as it turned out later, even state-owned banks, including Ukrgasbank, are engaged in misdirection (changing the purpose of payment in a bank acquiring network, usually related to gambling operations) in Ukraine. However, the NBU fined it only UAH 60 million for this violation. The same as Oschadbank, Sense Bank, FUIB, and many others over the past year. They also received fines of up to UAH 10 million.
But Concorde, which had not had any comments from international payment systems Mastercard and Visa during its operation, was deprived of its banking license. And this is despite the fact that 8 months before the NBU's decision to revoke its banking license , the bank had shut down acquiring and continued to be profitable, which indicated that it was not dependent on interchange - it was not the main part of its income. Concorde shareholders consider this decision of the regulator to be unfair.
They appealed to the court against the NBU's actions, and the first instance sided with them. In particular, the Dnipropetrovs'k District Administrative Court declared unlawful and canceled the decision of the National Bank of Ukraine to revoke the license and liquidate Concord Bank. However, Ukrainian legislation is written in such a way that even despite a court decision on the illegal liquidation of a banking institution, it is impossible to return it to the market.