From an analytical report to a criminal case: a lawyer explained how the Economic Security Bureau opens proceedings against businesses
Kyiv • UNN
Lawyer Roman Tulin explained that the analytical conclusions of the Economic Security Bureau are used as a “working version” to initiate investigative actions.
Analytical reports by the Economic Security Bureau may serve as a starting point for criminal proceedings against businesses, but by themselves they are not evidence in criminal proceedings. This was stated by Roman Tulin, attorney and managing partner at the law firm "Krolevetskyi and Partners," UNN writes.
According to him, in practice, an analytical product may be used to initiate criminal proceedings in order to show a judge or prosecutor that there is a working version.
In practice, from what we see, an analytical product is a basic version… It is used to initiate proceedings: to show a judge or prosecutor somewhere along the way that there is some working version and to obtain the first rulings, and then begin working intensively within the company's operations and gathering evidence. Later, this document is used to support motions and so on, but from the standpoint of criminal procedure, it does not meet the criteria of sufficiency and admissibility of evidence, and it is not evidence as such
In response to a question about whether this analytical product could be challenged, he noted that the document creates no legal consequences, and therefore there is no subject matter for a dispute.
The courts' position is that this analytical product creates no consequences for the plaintiff, meaning there is nothing to challenge. That is, this document creates no consequences; there is no subject matter for a dispute
At the same time, further procedural actions may be initiated on its basis, and these already directly affect business operations.
The lawyer advises businesses not to limit themselves to refuting the conclusions of the ESB, but to build their own body of evidence. In particular, they should engage an external adviser who can objectively assess the situation, as well as commission their own expert examinations.
Analytical conclusions are "stamped out"
A number of Ukrainian airlines are an example of criminal prosecution based on analytical reports. The ESB is investigating cases involving at least five air carriers, including MAU, "Constanta Airline," "Urga," N3Operations, and "Skyline," allegedly over the failure to pay an additional 15% tax on nonresidents' income to the Ukrainian budget under aircraft and helicopter leasing agreements. Investigators equate lease payments with royalties and treat aircraft not as means of transport but as "equipment."
Law enforcement authorities obtained the analytical conclusions after the previous team at the State Tax Service published an article in 2024 proposing that leasing transactions involving transport with nonresidents of Ukraine be taxed as royalties. The documents, which according to representatives of the aviation market resemble one another and appear to have been written "using the same template," became the basis for criminal cases against air carriers.
However, according to the lawyers interviewed by UNN, during the investigation, investigators ignore the existing international conventions on the avoidance of double taxation. Agreements with foreign states ratified by the Verkhovna Rada take precedence over national legislation and determine in which state and at what rate the relevant nonresident's income may be taxed. Therefore, automatically assessing an additional 15% tax in Ukraine without taking into account the provisions of a specific convention is at least debatable, experts emphasize.
It should be noted that Ukrainian tax legislation concerning the taxation of leasing has not changed for decades. Moreover, according to the State Tax Service, the airlines underwent tax inspections, and only one of them established a violation in the taxation of leasing. The remaining tax inspections did not identify such violations.
As a result of one inspection of companies in the aviation sector, lease payments were reclassified as royalties. Only one inspection
However, the absence of violations did not prevent the Economic Security Bureau from opening criminal cases against airlines, believing that they had failed to pay 15% royalties over the past seven years. At the same time, the list of airlines to which law enforcement agencies have claims because of leasing may expand at any moment, since around 40 air carriers use leasing. Thus, the entire civil aviation sector may come under attack.
As UNN reported, representatives of the aviation industry publicly stated that they were being pressured by the Economic Security Bureau because investigators interpret aircraft leasing operations as royalties, as well as because of criminal proceedings and attempts to impose additional taxes for seven years. According to them, civil aviation has come under threat of destruction due to the actions of state regulatory bodies, which could ultimately finish off companies that survived the closure of the airspace and relocation abroad because of the full-scale war.