Tax audits should be one of the key pieces of evidence in the "leasing" cases of the BEB against airlines - lawyer
Kyiv • UNN
The lawyer stated that the BEB is obliged to take into account the results of the State Tax Service audits, which found no violations in the taxation of leasing. She emphasized that criminal prosecution requires new evidence, not a change in interpretation.
The Bureau of Economic Security, during the investigation of criminal proceedings against airlines, is obliged to take into account the results of comprehensive documentary audits of the State Tax Service, during which no violations in the taxation of lease payments were found. This opinion was expressed in an exclusive comment to UNN by Alina Parkhuta, an intellectual property lawyer at the law firm "LOGIC".
Criminal cases against Ukrainian airlines
The Bureau of Economic Security is investigating criminal proceedings against at least five airlines, including MAU, "Avia Company Konstanta", "Urga", N3Operations, and "Skyline", for allegedly failing to pay an additional 15% tax on non-resident income under aircraft and helicopter lease agreements to the Ukrainian budget. BEB investigators equate lease payments to royalties and interpret aircraft not as vehicles but as "equipment".
The BEB received analytical conclusions after the previous State Tax Service team published an article in 2024 proposing to tax lease transactions with transport from non-residents of Ukraine as royalties. The documents formed the basis of criminal cases against air carriers.
However, according to lawyers interviewed by UNN, during the investigation, investigators ignore existing international conventions on the avoidance of double taxation. Treaties ratified by the Verkhovna Rada with foreign states take precedence over national legislation and determine in which state and at what rate the corresponding income of a non-resident may be taxed. Therefore, the automatic additional assessment of 15% in Ukraine without considering the provisions of a specific convention is at least controversial, experts emphasize.
It is worth noting that Ukrainian tax legislation regarding the taxation of leasing has not changed for decades. Moreover, according to the State Tax Service, airlines have passed tax audits, and only based on the results of one of them was a violation in the taxation of leasing established. The remaining tax audits did not reveal such violations.
Based on the results of one audit of companies in the aviation industry, lease payments were reclassified as royalties. Only one audit.
However, the absence of violations did not prevent the BEB from opening criminal cases against airlines, believing that they had not paid 15% royalties for the last 7 years.
Findings of State Tax Service audits are an important circumstance in criminal cases
According to lawyer Alina Parkhuta, BEB investigators cannot ignore the conclusions of tax audits, according to which no violations were found in the payment of taxes on aircraft leasing during the investigation of criminal cases.
The results of tax audits are an important circumstance that must be taken into account by the pre-trial investigation body when assessing the presence of signs of a criminal offense
She recalled that, according to the Criminal Procedure Code, the pre-trial investigation body is obliged to comprehensively, fully, and impartially investigate all circumstances of the case and evaluate each piece of evidence.
In this context, the results of documentary audits by the State Tax Service can be used as a source of evidence and taken into account when assessing the presence or absence of the elements of a criminal offense. The absence of comments based on the results of comprehensive audits may indicate the good faith of the taxpayer and serve as evidence in favor of the absence of signs of a criminal offense
At the same time, the lawyer notes that the very fact of the absence of claims from the tax authorities does not deprive the BEB of the right to initiate a pre-trial investigation. According to her, if the BEB receives information that may indicate the commission of a criminal offense, it is subject to verification in the manner prescribed by the Criminal Procedure Code of Ukraine.
Separately, the lawyer commented on the issue of opening criminal proceedings regarding operations that were carried out several years ago. According to her, investigations into events of past years should be conducted within the statute of limitations.
New criminal cases require new evidence
At the same time, Parkhuta emphasizes that if the taxation rules have not changed, and identical operations have passed tax control for years without any complaints, then new factual grounds must exist for criminal prosecution.
If the tax legislation regulating the taxation of lease payments has not changed during the relevant period, and similar business operations have been carried out under the same mechanism for a long time, passed tax control, and did not raise objections from the State Tax Service, then to justify criminal prosecution, the pre-trial investigation body must possess new evidence or new factual circumstances that were not the subject of tax control
Otherwise, the lawyer notes, the criminal case will be based not on new facts, but on a new interpretation of already verified business operations.
Otherwise, the criminal proceedings will actually be based solely on a retrospective change in the legal assessment of the same business operations, which in itself cannot be a sufficient basis for bringing to criminal liability