The Economic Security Bureau opens cases before establishing tax debt: businesses warn of the risk of criminal pressure
Kyiv • UNN
The Business Ombudsman Council has recorded the opening of cases by the Economic Security Bureau before tax liabilities are agreed. Analytical reports are often deemed inadmissible evidence.
Businesses are concerned about cases in which the Economic Security Bureau opens criminal proceedings over possible tax evasion before the relevant tax liabilities have been properly established and agreed upon. In addition, the ESB opens cases based on analytical reports without conducting tax audits, which subsequently has consequences during court proceedings. This is stated in the response of the Business Ombudsman Council to a request from UNN.
What concerns businesses
At the end of 2025, the Business Ombudsman Council and the ESB signed a Memorandum of Cooperation, and in 2026 an Expert Group began operating, intended to resolve more promptly the problems businesses face due to actions or inaction by the Bureau.
Two meetings of the Expert Group have already taken place. The issues considered included the enforcement of court decisions, compliance with reasonable time limits for pretrial investigations, the return of seized property, and the proportionality of investigative actions.
At the same time, the Business Ombudsman Council draws attention to the practice of opening criminal proceedings over possible tax evasion in situations where tax liabilities have not yet been agreed upon.
Businesses are particularly concerned by cases in which criminal proceedings are opened and a pretrial investigation is conducted under circumstances where the tax liabilities that the pretrial investigation authority links to possible tax evasion have not yet been agreed upon, the Business Ombudsman Council noted.
This concerns a fundamental issue for businesses: should criminal prosecution for nonpayment of taxes begin before the tax liability itself has been established in accordance with the procedure prescribed by law and the relevant tax procedures have been completed?
Criminal proceedings based on ESB analytics
Another problem highlighted by the Business Ombudsman Council is the use of ESB analytical reports as grounds for opening criminal proceedings.
The Council is aware of a number of cases in which information was entered into the Unified Register of Pretrial Investigations under Article 212 of the Criminal Code of Ukraine on the basis of ESB analytical products, without conducting—and/or without properly completing—a tax audit. As a result, during court proceedings the relevant materials are often subsequently deemed inadmissible evidence for confirming the elements of a criminal offense
They added that they had already drawn attention to this problem, in particular during discussions of an initiative to introduce a mechanism for pretrial settlement in cases involving tax offenses.
At the same time, the official statistics on complaints received by the Business Ombudsman Council do not reflect the full scale of the problems in the interaction between entrepreneurs and the ESB. The Council’s mandate does not allow it to consider some requests, including those concerning the lifting of property seizures or the admissibility of investigative actions authorized by a court.
Airlines and the disputed interpretation of leasing
A telling example of the risks posed by this approach emerged in Ukraine’s aviation sector. Despite the fact that Ukrainian tax legislation—which has remained unchanged for decades with regard to leasing—and international treaties clearly describe how taxes on the leasing of helicopters and aircraft should be paid, the Economic Security Bureau decided, at its own discretion, to change this approach. The ESB is investigating cases involving at least five air carriers, including UIA, Constanta Airlines, Urga, H3Operations, and Skyline, over the alleged failure to pay an additional 15% tax on the income of nonresidents to the Ukrainian budget under aircraft leasing agreements. Investigators equate leasing payments with royalties and treat aircraft and helicopters not as means of transport but as "equipment."
Law enforcement officials obtained analytical conclusions after, in 2024, the previous team at the State Tax Service published an article proposing that leasing transactions involving transport with nonresidents of Ukraine be taxed as royalties. Documents that, according to aviation industry representatives, resemble one another and appear to have been written "from the same template" formed the basis of criminal cases against air carriers.
Lawyers interviewed by UNN indicate that investigators are ignoring the current international conventions on the avoidance of double taxation ratified by the Verkhovna Rada. According to them, the automatic assessment of an additional 15% tax in Ukraine without taking into account the provisions of a specific convention is, at the very least, disputable.
It is worth noting that, according to the State Tax Service, the airlines underwent tax audits, and only one of them identified violations in the taxation of leasing. The remaining tax audits did not reveal any such violations.
As noted by Viktoriia Kasian, Deputy Director of the Transfer Pricing Department of the State Tax Service of Ukraine, based on just one audit of companies in the aviation sector, lease payments were reclassified as royalties.
However, the absence of violations did not prevent the Economic Security Bureau from opening criminal cases against the airlines, believing that they had failed to pay 15% in royalties over the past seven years. At the same time, the list of airlines against which law enforcement agencies have claims over leasing may expand at any moment, since approximately 40 air carriers use leasing. Thus, the entire civil aviation sector may come under threat.
Experts interviewed by UNN note that if the established interpretation of tax regulations can be independently changed retroactively by a law enforcement agency, and criminal cases are opened before the tax procedures are completed, this sends a signal about the unpredictability of Ukraine’s regulatory environment. For potential investors, this means that even conscientious compliance with the current rules does not guarantee protection of a business from criminal-law risks.
Representatives of the aviation sector have already publicly stated that they are facing pressure from the Economic Security Bureau. According to them, civil aviation has found itself 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. The Ukrainian Air Transport Association appealed to the Verkhovna Rada Committee on Transport and Infrastructure, as well as to the Public Council under the Ministry of Finance, calling for a unified approach to applying tax legislation in the area of aviation leasing to be developed.
It should be understood that the mere existence of criminal proceedings in Ukraine, even if there are no suspects in the case, may create risks for companies in their relations with foreign lessors, banks, insurance companies, auditors, and counterparties. Even without a final determination that a tax violation occurred, such proceedings may be perceived by international partners as grounds for additional checks, a review of cooperation terms, or restrictions on contracts.
The problem of opening criminal proceedings before tax liabilities are finally established, along with the use of analytical reports by the Economic Security Bureau, once again confirms the need for a comprehensive audit of the criminal cases investigated by the Bureau. Such a review would make it possible to establish whether there were sufficient legal grounds for the law enforcement agency to intervene in the companies’ activities and whether the Bureau’s analytical tools were being transformed into a mechanism for exerting criminal pressure on businesses.