“Responsibility “for that guy”: should a company be liable for the actions of its counterparty?In Ukraine, state bodies are trying to shift responsibility for counterparty violations onto customers. Lawyers and courts argue
that the customer company is not responsible for the actions of the counterparty after the completion of a business transaction.
”, — write: unn.ua
Precedent of shifting responsibilityEarlier, UNN reported on a precedent that arose with the scientific and production firm LLC “MS AVIA-GRADE”, which was accused of allegedly legalizing funds through cooperation with counterparties. The company reported that law enforcement agencies reached their conclusions based on selective bank statements, without directly contacting the enterprise itself and without conducting a full inspection of primary documentation.
At the same time, “MS AVIA-GRADE” insists that all business operations are confirmed by relevant documents, they were carried out within the current legislation and do not contain any violations. The company emphasized that the actions of suppliers after the execution of the contract cannot be a reason for making claims against the customer, who acts in good faith and within the legal framework.
“MS AVIA-GRADE” considers this situation an attempt to exert unfounded reputational pressure on a business that, in the conditions of a full-scale war, performs critically important tasks for the benefit of the state, including in the defense sector.
Position of lawyersLawyers interviewed by UNN emphasize that the customer cannot be held responsible for the actions of the supplier after the termination of contractual relations.
The customer company acts within the framework of contractual relations with its counterparty, and cannot be responsible for its proper fulfillment of its tax obligations
Lawyer Serhiy Pager holds a similar position. He reminds that the principle of individual responsibility is enshrined in Article 61 of the Constitution of Ukraine, and European judicial practice does not allow a taxpayer to be held liable for the actions of third parties.
If we talk about tax audits, it should be noted that Article 61 of the Constitution of Ukraine enshrines the principle of the individual nature of a person’s legal responsibility. Taking into account the approaches of the ECHR, set out in the decisions in the cases “Business Support Center v. Bulgaria”, “Bulves AD v. Bulgaria”, “Intersplav v. Ukraine”, a taxpayer cannot be held responsible for possible illegal actions of other legal entities. This is also confirmed by numerous judicial practices
The reality of relations must be confirmedProvided that the business operation was real, the goods were delivered, the relevant acceptance certificates were signed, and the payment was made – there can be no claims against the customer.
Returning to the situation with LLC “MS AVIA-GRADE”, it is worth noting that a similar case was already considered within the framework of a forensic examination conducted by specialists of the “Research Laboratory of Forensic Examinations”. According to the results of the economic study, it was established: if the customer company actually received goods or services, to which there were no comments or complaints, has a full package of supporting documents and acted in accordance with the requirements of the law – it is not responsible for the subsequent actions of counterparties. In such a case, claims against it are unfounded.
Experts point out that often, in order to give weight to their evidence, law enforcement officers resort to certain manipulations, for example, they call superficial checks – “analytical studies” or “analytical certificates”, which, in practice, have no legal force. But it is precisely on the basis of such documents that criminal cases and accusations against bona fide companies are formed. That is, often the accusations are based on indirect responsibility, which can be regarded as arbitrary.
So-called “analytical studies” of the State Tax Service are not directly provided for by law
It is therefore obvious that the customer company should not and cannot be held responsible for the actions of third parties if it acted in good faith, received goods or services, paid for them on time, and has all supporting documents. Attempts by law enforcement agencies to hold customers responsible for the actions of counterparties are a violation of basic principles of law, including the Constitution of Ukraine, and should be challenged in court. Law in Ukraine should not work on the principle of “guilty because acquainted”.