Tax amnesty in Ukraine. What procedure is proposed?

The end of winter 2021 “made a present” to representatives of Ukrainian business  in form of four draft laws under which it is proposed to introduce amendments into Tax code and some other laws aimed at establishment of tax amnesty. However, what is the main aim of amnesty execution? According to research of shadow economy in Ukraine almost 25 per cents of the market is carried out in the shadow. Consequently, the budget does not receive at least a quarter of taxes and levies that must be paid in accordance with legislation.

Tax amnesty foresees the possibility to pay a one-time levy at rates that are lower than those established by law for income taxation, and for which tax payment deadlines have already expired. At the same time, such payers should not be held liable for undue payment of taxes. In order to implement such possibility, it is proposed to introduce a one-time (special) voluntary declaration (or as it is commonly called “zero declaration”). This is a special procedure for the voluntary declaration of assets that belong to a person if they were obtained from income that had to be taxable in Ukraine and from which taxes were not paid during any of the tax periods before January 01, 2021.

The declaration can be submitted both in electronic form and in simple written form. The declaration can be submitted both personally and through an authorized representative (notary) in the form of an impersonal one-time declaration. In case of submission of an impersonal declaration, the declarant draws up and submits personally a declaration in writing and provides it to a notary together with certified copies of documents that confirm that the person has assets from which taxes have not been paid. In this case, an agreement on the submission of an impersonal declaration is concluded between the declarant and the notary, where a special code-identifier of the declarant provided to the notary by the State Tax Service is indicated.

In accordance with draft laws, it is proposed to carry out declaring from July 01, 2021 to July 01, 2022. During this period, declarants can submit declarations, as well as clarifications and amendments to them, if necessary.

Given that the declaration indicates the assets owned by the person, a logical question arises: what will be considered the basis for calculating the levy from a one-time (special) voluntary declaration? The monetary value of the corresponding object of declaration or the nominal value of the monetary claim will be considered as the base. The declarant has to provide documentary evidence of the monetary evaluation of such objects. In the case of submission of an impersonal declaration, documents confirming the value are submitted together with the original declaration and in the future are kept only by a notary. It is important to note that the evaluation has to be carried out in accordance with the laws of the country in which the asset is located. The amount of the levy depends on the location of the asset, and for government bonds the special rate is fixed. Thus, it is proposed to establish the following rates:

  • 5 % – for objects located in Ukraine;
  • 9 % – for objects located abroad;
  • 2,5 % – of nominal value of governmental Ukrainian bonds with a turnover period of more than 365 days without the right of early redemption, and which were acquired by the declarant during the period from January 01, 2021 to June 20, 2022 prior to submission of declaration.

For the purpose of a special declaration, the declarant must place funds in national and foreign currencies in cash and/or in the form of bank metals on current accounts with a special regime of use in banks of Ukraine prior submission a declaration. The bank ensures the placement of funds in a special account after verification of the identity of the declarant and establishment of the source of origin of such assets, which generally contradicts the norm, which states that the declaration does not indicate information about the sources of receipt by the declarant of the objects of declaration.

However, not all assets will be subject to declaration. So, if a person does not use his/her right to submit a one-time (special) voluntary declaration, objects are considered as such for which taxes and levies have been paid in full, if it is:

  • assets, the total value of which does not exceed UAH 400,000 as of the date of the end of the voluntary declaration period;
  • immovable property, the owner of which was the declarant as of the end date of the voluntary declaration period, that does not exceed the following parameters:
  • residential real estate objects – an apartment or property rights to an apartment up to 120 m2, a residential building up to 240 m2;
  • non-residential real estate objects – up to 60 m2;
  • land plots, the size of which does not exceed the free transfer rate in accordance with Article 121 of the Land Code of Ukraine.
  • one vehicle for personal use and transportation of less than 10 persons, the ownership of which was registered in accordance with the legislation of Ukraine as of the date of the end of the declaration period.

The specified assets are not subject to a one-time (special) voluntary declaration fee.

Thus, the above mentioned draft laws offer a sort of compromise option between the state and business representatives regarding filling the budget by returning unpaid taxes at a reduced rate to the state treasury. However, the experience of foreign countries was not always positive, and in some countries, after the tax amnesty, declarants were still held accountable for taxes that were not paid on time.

If you are a business representative or an individual and you are not completely sure on how a tax amnesty can potentially affect your condition, our specialists are always ready to conduct an appropriate analysis and determine the risks that may arise in connection with a tax amnesty and suggest ways to minimize them.

For information regarding services, you can contact by tel. +38 (063) 388 81 20, e-mail: info@voropaevltd.com.ua

Cryptocurrencies: purchase and sell, mining, exchange – when the legislative regulation in Ukraine should be expected?

It is not the first year, when lots of countries step by step have been making attempts to legalize various aspects of crypto assets’ activities. At the same time, despite the fact that some countries prohibit the conduct of crypto assets’ activities, in fact, it is almost impossible to prohibit them, since there are many ways to continue carrying out such activities bypassing the established prohibitions. In addition to the above, the legal regulation of receiving income from conducting activities with crypto assets, given the significantly increased cost of cryptocurrencies (in particular, Bitcoin) over the last year, will allow the state to have another source of budget replenishment. A significant number of countries have already adopted the relevant legislative acts, partly or in whole, regulating activities with crypto assets. However, in Ukraine, regulation of this aspect is still on hold.

On December 02, 2020, the Verkhovna Rada of Ukraine in the first reading adopted the Draft Law “On Virtual Assets” and as of the moment the document is being prepared for the second reading. It defines such basic concepts as “virtual asset”, “virtual asset wallet”, “virtual asset key”, “service providers related to the turnover of virtual assets”, “virtual assets’ market participants”, etc.

In accordance with this Draft Law:

A virtual asset is a collection of data in electronic form that has a value and exists in the system of turnover of virtual assets.

A virtual asset can be both an independent object of civil turnover and certify property or non-property rights, in particular, the right to claim other objects of civil rights. At the same time, the Draft Law explicitly states that virtual assets are not a means of payment within the territory of Ukraine.

The subject of entrepreneurial activity that carries out one or more types of activities with virtual assets established by law in favor of third parties is considered as a provider of services related to the turnover of virtual assets and is subject to mandatory state registration. These types of activities include:

  • storage or administration of virtual assets and virtual asset keys;
  • exchange of virtual assets;
  • transfer of virtual assets;
  • participation and provision of financial services related to the issuer’s offer and / or sale of virtual assets.

In addition to the mandatory registration, the provider of services related to the turnover of virtual assets must also meet certain requirements, namely:

  • impeccable business reputation of the director and participants;
  • disclosure of information about the ownership structure (including information about the ultimate beneficiaries or their absence);
  • developed and implemented internal procedures of financial monitoring;
  • developed and implemented rules of the processing of personal data.

If an individual or a subject of entrepreneurial activity does not carry out these types of activities in favor of third parties, then such activities are not considered as the provision of services related to the turnover of virtual assets and are not subject to mandatory registration.

In accordance with the Draft Law, the Ministry of Digital Transformation of Ukraine within 30 days decides to conduct state registration of the activities of a provider of services related to the turnover of virtual assets and include information about it into the State Register of providers of services related to the turnover of virtual assets, or decides to refuse such registration. The validity period of state registration is unlimited.

At the moment, consideration of the Draft Law of Ukraine “On Virtual Assets” is not on the agenda of the Verkhovna Rada of Ukraine. However, new draft laws on the regulation of activities with crypto assets have not yet been submitted for consideration.

And what about taxes?

Much earlier (back in November 2019), the Draft Law of Ukraine “On Amendments to the Tax Code regarding the taxation of transactions with crypto assets” was submitted for consideration. The main idea of ​​this Draft Law is to designate the profit from operations with crypto assets as a positive difference between the income received by the tax payer from the sale of crypto assets and the costs related to their acquisition and/or creation. As a general rule, it is proposed that such profits will be the basis for applying the general income tax rate of 18% (+ 1.5% military duty). At the same time, it is proposed to establish a 5% rate for taxing investment profits from the sale of crypto assets for a period of 5 years.

It should be noted that despite the fact that the Draft Law was never adopted, the rules specified in this document on the taxation of profits derived from activities related to crypto assets are already applied in practice. Thus, the designated profit is taxed at a general rate of 18% (+ 1.5% military duty) and falls under the category of “other income”.

Therefore, individual entrepreneurs engaged in cryptocurrency mining are usually on a simplified taxation system and pay 5% tax on the income received. However, this approach is quite risky, since in practice, individual entrepreneurs were excluded from the Register for conducting activities that were not included in the list of activities in which they are engaged.

Thus, at the moment there is a legal conflict, when, on the one hand, there are incomes received from activities with crypto assets, and on the other hand, there is no legal regulation of the issues of declaring and taxing such incomes. So, as it was indicated, some entrepreneurs are trying to declare their income received from activities with crypto assets and pay taxes, and in return have risks of exclusion from the Register for conducting activities outside the law.

Some entrepreneurs and individuals who want to conduct business with crypto assets within the legal framework sometimes also consider options for obtaining residency in jurisdictions where such activity is legally regulated.

For information regarding obtaining legal advice on conducting activities with crypto assets in Ukraine or choosing a jurisdiction for conducting a crypto business, you can contact by phone. +38 (063) 388 81 20 or e-mail: info@voropaevltd.com.ua

Veronika Kurilko

 Lawyer

Key practice                                                                                                                                                                                      Corporate, labour, commercial, civil, regulatory law, intellectual property law, tax and business structuring consulting

Experience                                                                                                                                                                                              Kurilko Veronika joined Law Firm “Voropaev and Partners” team in August 2020. Since 2017 Veronika has been working in legal division of tax and legal department of audit company “KPMG-Ukraine”, where she worked as a provider of wide range legal services, including, but not limited to: legal consulting, due dilligence, M&A support, compliance analysis, support in execution of public procurements, participation in court proceedings on labour law issues.                                                                 In Law Firm “Voropaev and Partners” Veronika provides legal support and consults clients on the issues of structuring and management of private funds, including establishment and management of companies in foreign jurisdictions, as well as provides communication between client and companies-administrators in such jurisdictions.

Education                                                                                                                                                                                          Veronika Kurilko has a higher legal education, In 2017 she graduated from National university “Kyiv-Mohyla academy”, master degree.

Languages                                                                                                                                                                                        Veronika is fluent in Ukrainian, Russian and English

Contact                                                                                                                                                                        vkurilko@voropaevltd.com.ua

Tetyana Volkova

Partner, attorney-at-law

Key practice                                                                                                                                                                                                  Court practice (civil, criminal, commercial, administrative cases, family, succession, land, labour, tax disputes).                        Development and legal analysis of mechanisms of establishment of business-decisions, internal policies of the company, organisation of work of personell, development of evaluation and reward system.                                                                                      Legal analysis of business transactions.                                                                                                                                                          Legal assistance of construction and project works.                                                                                                                     Immigration law.

Experience                                                                                                                                                                                              Work experience: 23 years                                                                                                                                                                             Before joining Law firm “Voropaev and Partners” in October 2008 Tetyana Volkova worked as an attorney-at-law at Donetsk Regional Bar Association.  She was the head of legal advice agency bureau of Kalininskyy district of Donetsk, also was the presidium member of Donetsk Regional Bar Association. She also worked as a leading legal counsel in business corporations.    With 23 years of legal experience Tetyana Volkova can provide a wide range of legal services to legal entities and private individuals related to protection of the clients’ interests in criminal proceedings and at the stage of pre-trial investigation, represent their interests in the courts of all jurisdictions and advise on all the issues arising out of contractual and legally binding obligations under commercial, civil, administrative, labor, housing, tax, family, land and succession law.                        As a specialist in family law Volkova Tetyana proposes services on formalization of marital agreements; consulting on property protection issues, succession family property planning, support in testamentation and agreements on partition of joint property of married couple; minor age children’s assets management; divorce support, division of joint property by judicial procedure, alimony recovery and definition of child’s place of residence; elimination of risks of cohabitation without marriage, and in other issues related to family relations.                                                                                                                                                            Moreover, Volkova Tetyana is specialized in immigration law issues. Her competence includes: legalization of foreigners’ presence in Ukraine, presence of citizens of Ukraine abroad, help in obtainment of work permits, temporary or permanent residential permits, consulting on immigration law issues.

Key projects:

  • Participation in establishment of family business management structure (Family office), real property management structure, legal support in organization of personell work on servicing needs of family, optimization of financing and taxation, immigration issues;
  • Provision of support for USA and EU citizens in formalization of succession rights on the territory of Ukraine;
  • Legal support in building of private residential complex;
  • Protection of rights and interests of private individuals in administrative case on acknowledgement as unlawful and cancellation of the Resolution of the Cabinet of Ministry of Ukraine No. 595 dated 07.11.2014 under which social payments to the citizens of Ukraine from temporary occupied territories of Ukraine (case No. 826/18826/14).

Representation of interests:

  • “System Capital Management” JSC – legal support on labour law issues, on company’s HR policy issues;
  • “First Ukrainian International Bank” JSC – representation of interests in tax disputes, criminal and civil court proceedings on recovery of problem indebtedness under credit agreements;
  • “Kozyn Lux” LLC – complex legal support;
  • “Comtech Invest” LLC – legal support on corporate issues

Education                                                                                                                                                                                              Higher eductation: Donetsk State University in 1997, the faculty of Law and Economics, speciality – Law Studies. Course “Organisational Behaviour” of British MBA program, Edinburgh Business School, Heriot Watt University.

Membership in Bar Associations                                                                                                                                              National Association of Advocates of Ukraine, Donetsk Regional Bar Association.

Languages                                                                                                                                                                                          Russian, Ukrainian, English.

Contacts tvolkova@voropaevltd.com.ua

Anna Nechai

Partner, lawyer, advocate, the member of Society of Trust and Estate Practitioners (STEP)

Key practice                                                                                                                                                                                        Foreign Law: international tax planning, trust creation and management, wealth management, administration of offshore companies, succession planning, dealing with foreign banks, corporate law.                                                                                      Ukrainian Law: corporate, civil, banking and financial law, currency legislation, law drafting, foreign economic activities. 

Experience                                                                                                                                                                                                   In “Voropaev & Partners” Law Firm Anna Nechai provides legal support and consults clients on the development and implementation of wealth management structures, including the creation and management of trusts, companies in foreign jurisdictions, foundations, provides services on directorship of foreign companies of the customers; ensures effective communication with foreign banks (the opening and management of accounts in foreign banks, including private banking) and professional service providers of services abroad. Anna Nechai actively participates in development and further discussion of drafts of legislative acts of Ukraine in corporate law, securities, currency regulations, bank, and financial law with the representatives of state authorities of Ukraine.                                                                                                                                              The career of Anna Nechai in “Voropaev & Partners” Law Firm started in 2006. At that time, Anna Nechai specialized at most in issues of banking and corporate law, M&A transactions, secured financing.                                                                                        Since 2008 till 2013, Anna Nechai worked as the lawyer at Ukrainian office of international legal company “Baker&McKenzie” (USA) at department of banking and financial law (2008 – 2013 years), as well as corporate law and M&A transactions.                Anna Nechai started work experience in 2004 at PJSC “First Ukrainian International Bank”, where she handled court dispute and claims settlement, carried out the work on secured financing, was in charge of communications with representatives of tax, executive and law enforcement agencies, Anna also consulted the clients of the bank.

Education                                                                                                                                                                                                Anna Nechai has a higher legal education: in 2004 Anna with honors graduated from International Solomon University (city Kyiv) with a Bachelor degree, in 2006 Anna Nechai graduated from V.M. Koretsky Institute of State and Law of the National Academy of Sciences of Ukraine, with the Master degree in jurisprudence. Also in 2014 Anna Nechai got MBA diploma at University of New Brunswick (Canada) and International Institute of Business (Ukraine). In 2015, Anna Nechai received a Certificate and became a member of Society of Trust and Estate Practitioners (STEP).

Languages                                                                                                                                                                                               Anna Nechai is fluent in Ukrainian, Russian and English languages.

Membership in Professional Associations                                                                                                                                  From 2006 Anna Nechai is the advocate at Kyiv Regional Bar Association of Ukraine and from 2015 Anna Nechai is the member of Society of Trust and Estate Practitioners (STEP).

Contact anna.nechai@voropaevltd.com.ua