Oleksandr Pysarenko.

Especially for the Yuridicheskaya Praktika neswpaper.

In February 2003, the State Tax Inspectorate (hereinafter – STI) appealed to the Commercial Court of Kiev with a claim to the company “Y” and “TDM” on the Recognition agreement between them, May 11, 2001 commission agreement to be invalid, contrary to the interests of the state, and recovery with “Y” just feed them to the transaction at $ 9 million USD in revenue of the state on the basis of Article 49 of the Civil Code of Ukraine.

OOO “U” – a faithful party to the transaction. By entering into the controversial deal, he acted without intent to violate the state’s interests. STI (the plaintiff) has provided the following grounds for the claim:

1) the decision of Pechersk district court in Kiev on June 11, 2002 invalidated the constituent documents of LLC “TDM”;

2) LLC “TDM” during the activity of taxes not paid;

3) the state registration of LLC “TDM” conducted in violation of the Act. This means that the company had not acquired the civil capacity, legal status and could not be a party to the disputed contract;

4) nullification of constituent documents of LLC “TDM” indicates that the time of registration and at the conclusion of the disputed transaction intention to act against the interests of the state and society;

5) because at the conclusion of a controversial deal LLC “U” had no wrongful intent, then it is recoverable in the budget for everything received in the transaction commission, that is, the value of goods received by LLC “U” for sale as a commission agent.

Reasons given in paragraphs 1-4, the most common and are present in nearly every lawsuit STI recognition of the transaction null and void under Article 49 of the Civil Code of Ukraine. We can therefore say that in such cases to protect apply common to this category of cases the arguments and reasons. In paragraph 5 shows the individual bases that appear in each individual claim and depending on the circumstances of the conclusion and implementation of specific controversial deal.

Thus, for invalidation under Article 49 of the Civil Code of USSR transaction must be proved contrary to his goal state interests.

The aim of this controversial deal was the establishment of obligations LLC “Y” to commission services Ltd “TDM” for the commission. Commission services were commercially LLC “TDM” property is not restricted and are not exempt from the civil law of Ukraine, owned by the LLC “TDM”, ie property that may be subject to civil transactions within the state. A controversial deal was legal capacity legal persons are not excluded from the Uniform State Register of Enterprises and Organizations of Ukraine (EDRPOU) – relevant actors of civil legal relations in Ukraine. In meaning and form of the controversial deal is a contract of commission, the conclusion and implementation of whom settled by the Civil Code of Ukraine, so – allowed by the state. Based on these, the purpose of the disputed transaction is not contrary to the interests of the state.

For recognition under Article 49 of the Civil Code of USSR transaction invalid must prove the intent of a party at the conclusion of this transaction is contrary to the interests of the state, and that intent was party to this particular transaction.

The plaintiff in the proof of intent LLC “TDM” for the conclusion of the disputed transaction contrary to the interests of the state refers to the fact that the constituent documents of the LLC “TDM” were invalid. Such a reference is incorrect and misleading.

As is seen from the case, the parties disputed transactions are legal entities. Legal entity – an independent organization, in its own name acquire the rights and duties is a separate defendant in court (art. 23 SC USSR) and bears an individual legally responsible. Legal persons to acquire civil rights and civil obligations take over their bodies (Article 29 CC USSR). For a limited liability company by such authority is the management or the director. Director and the person who concluded on behalf of LLC “TDM” disputed transaction is a gr-GN

Constituent documents – a document governing the relationship between the founders of the company and not the relationship-specific contracts entered into now. Limited Liability Company is not liable for the obligations of the founders and is the subject of a separate civil relations are not identical to the founders and is not dependent on them (Article 32 CC USSR). Thus, the invalidity of the constituent documents of LLC “TDM” is a legal fact-sky, affecting the relations of the founders: gr-VN and VK, and not against “TDM” with others.

In addition, the subjects of the constituent documents of LLC “TDM” are FIT B. and C. The subjects of the controversial deal – LLC “TDM” and “Y”. At the conclusion of the founding documents were the will of gr by Mr. W. and K., a controversial deal was in the will of others – LLC “TDM” and “Y”. In this case, on behalf of the LLC “TDM” acting director – G., on behalf of the LLC have “acted Director – B. Thus, the controversial deal could not be invalidated due to the fact that other transactions entered into by others, invalid .

In addition, none of the current legislation in Ukraine does not provide such legal consequences as an acknowledgment of the transaction legal person contrary to the interests of the state, for cases where the constituent documents among the founders of the legal entity void caused by the founders themselves, and not the fault of the legal person or his representative. The only law of Ukraine, which regulates the question of invalidity founding documents – is the Law of Ukraine “On Entrepreneurship”. In accordance with the eighth article the only consequence of the recognition of the constituent documents of a legal entity invalid – setting aside the state registration of legal entities. Other consequences, including the invalidation of transactions concluded a legal entity, the law does not set.

The plaintiff did not give the court the statements or explanations that the director of “TDM” gr-G. – the executive body of LLC TDM, the only person authorized to act on behalf of the LLC “TDM” – had its own or jointly with a gr-mi B. and K. unlawful intent to conclude exactly controversial, and not to any other transaction contrary to the interests of the state.

The plaintiff in the proof of intent LLC “TDM” for the conclusion of the controversial deal, contrary to the interests of the state, refers to the fact that, in recognition of the decision of the Pechersk district court in Kiev on June 11, 2001 null and void the constituent documents of LLC “TDM” from the moment of their registration, LLC “TDM” did not receive legal status and was at the time of the transaction direct intention not to pay taxes to the budget.

Such a reference is incorrect.

The company is considered established from the date of its registration (Article 6 of the Law of Ukraine “On Enterprises in Ukraine”). Pursuant to Part 19 of article 8 of the Law of Ukraine “On Entrepreneurship”, the company loses its legal status in its exclusion from EDRPOU.

Since LLC TDM “at the time of the controversial deal (11 May 2001) and at the time of the proceedings in the Commercial Court (March 2003) was recorded Pechersk District State Administration in Kyiv, is not excluded from EDRPOU, then at the conclusion and implementation of a controversial transaction acted as a legal entity having civil capacity.

Payer’s obligation to pay taxes, as well as legal liability for failure to pay taxes, individual (the Law of Ukraine “On the Procedure for repayment of taxpayers to budgets and state trust funds”, Article 7.5).

Income arises only because of the execution of transactions. Thus, the duty payer to pay taxes also arise after the transaction and generate income. This obligation does not exist in parties to the transaction at the time of its conclusion or prior to its execution.

With respect to claims, this means that no one except the LLC “TDM” is not required to properly pay taxes on income earned LLC TDM, and no one except LLC TDM, can not be prosecuted for tax evasion LLC TDM .

So, if at the time of the conclusion and implementation specified in the claim transaction meets the requirements of the law, then it can not be invalidated on the grounds that, in future, after its execution, LLC “TDM” has not paid the taxes without any fault or liability of LLC “Y”.

Thus, if after a controversial deal LLC “TDM” has not paid the taxes without any fault or liability of LLC “U”, the LLC “TDM” must pay the tax and penalties, an exhaustive list of which is set by law. Legal consequences in the form that the transaction be void in such cases the law does not provide.

With regard to claims about the STI collection with “U” to the state revenue received by all the disputed commission agreement, namely the value of the goods, the subject of civil legal relations arising under the contract of commission, are the actions that must comply with the commission. That is, the commission performs actions – provides services, and the principal shall, in turn, receives data services and pay him a commission. Transfer of things (goods) is not subject to the commission agreement. According to a commission agreement ownership of the items to the commission does not pass. Consequently, the erroneous assertion STI that “I” got on a controversial treaty commission products worth 9,000,000 USD, and therefore, the requirement to collect this amount is unlawful.

Economic court of Kiev has decided that the lawsuit dismissed STI. Appeal upheld his decision.

PYSARENKO Oleksandr.