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PROBLEM ASPECTS OF THE TAXATION OF ELECTRONIC PAYMENT SYSTEMS IN UKRAINE

In the conditions of consequences of financial crisis and unstable bank activity in Ukraine, active development of numerous systems "electronic payments" can quite be considered as alternative to traditional ways of calculations between natural and legal entities in almost any sector of economy.

Only in 2011 the volume of the calculations executed by means of various systems "electronic payments", according to the estimates of NBU made 115,7 million UAH (hryvnia). And by calculations by the State Tax Administration of Ukraine – to 2,5 billion UAH. Indicative forecasts allow to predict the further growth of such mutual settlements up to 15 billion hryvnias by 2014.

 

In the current legislation of Ukraine, monetary circulation in systems "electronic payments" still isn't settled, and existing normative legal acts insufficiently precisely capture the essence and the nature of systems "electronic payments", especially in a context of their taxation.

It should be noticed that in the international practice by the first legal status of electronic money is regulated. In particular, according to the paragraph of "b" of item 3 of Art. 1 of the Directive of the European Union 2000/46/EU, electronic money means the monetary cost (monetary value) as a special type of the right of the requirement to the organization issuer and correspond to the following three parameters:

1)  fixed and stored on an electronic medium;

2) issued for receiving money in a cost size, not smaller the emitted monetary cost;

3) accepted, as an instrument of payment, others (besides the issuer) the organizations.

 

The current legislation of Ukraine gives similar definition. According to item 1.2 of situation No. 178 NBU of 25.06.2008, electronic money is defined, how "the units of value which are storing on the electronic device", serving as an instrument of payment of clients of the issuer of such money and "being the liability of the issuer".

Legal status of systems "electronic payments" in Ukraine is regulated:

1) The civil code of Ukraine of 16.01.2003 No. 435-IV;

2) The instruction about an order of opening, use and closing of accounts in national and the foreign currencies, approved by the resolution of Board of NBU of 12.11.2003 No. 492;

3) The instruction about clearing settlements in Ukraine in the national currency approved by the resolution of Board of NBU from 21.01.2004 No. 22;

4) The provision on electronic money in Ukraine, the approved resolution of Board of NBU of 25.06.2008 No. 178 which obliges the companies issuing "electronic" money, within six months a tax on coordination of the rule of work of the systems;

5) Situation "About Electronic Money" update (No. 481 resolution NBU of 04.11.10).

 

Above the stated allows to use actively systems "electronic payments" in the enterprise sphere, in particular businessmen - the natural persons paying a uniform tax. However since January 1, 2012 they have the right to carry out calculations only in a cash and non-cash monetary form (item 291.6 of Art. 291 of the Tax code). Not monetary calculations are forbidden.

It brought to that, businessmen couldn't pay off with the help of informal systems "electronic payments" any more. The contradiction consists that in such calculations the scheme of a sedation of the rights of the requirement, recognized by tax inspection as barter operation was used.

Besides it should be noted that in the Tax code as however, and in the legislation of Ukraine, the concept "electronic money" isn't defined. The only normative legal act which defines that such "electronic money", regulates their issue, and the address in the territory of Ukraine is No. 481 resolution NBU of 04.11.10. "About electronic money". NBU also included electronic money in the List of standard operations on the settlement cash to service (SCS) the resolution No. 400 of 15.11.2011 which aren't object of the taxation of the VAT.

This list included also operations on release, repayment, distribution and reception of electronic money. However according to item 1.37 of the Law of Ukraine "About payment systems and money transfer in Ukraine", RKO are services which are provided by bank to the client.

Thus, operations with electronic money aren't assessed with the VAT, only if are carried out only by bank. Other participants of electronic monetary circulation, including systems "electronic payments", here don't belong because act as general distribution agents or an exchange of electronic money. Systems "electronic payments" can refer today to the State Tax Administration letter "About coordination of the list of operations on rasschetno-cash service". This letter agrees the list of operations on RKO which aren't object of taxation of the VAT (Art. 196 of the Tax code).

If operations of purchase and sale of electronic money are carried out by other subjects of economic activity (not banks) — namely so systems "electronic payments" work – there is a duty to pay the VAT. That is, at sale or purchase of electronic money between an electronic payment system and its agents or natural persons, there is a VAT.

It turns out that if operation is performed by bank, the VAT doesn't exist. But if operations of purchase and sale of electronic money pass through agents or electronic money passes directly through system "electronic payments" from the buyer/seller, there is an obligation for the VAT.

Such collision demands entering of corresponding changes into the Law of Ukraine "About payment systems and money transfer in Ukraine" regarding extension of the list of subjects who can render services in RKO.

According to lawyers, for permission of these contradictions, initial adoption of the relevant law, and then, on its basis - Provisions NBU would be more logical.

In this regard, for two last years in the Verkhovna Rada different parliamentary fractions repeatedly submitted for consideration the bills "About Electronic Trading", "About Electronic Commerce", etc. Today, any of them isn't accepted yet, and NBU in December, 2010 decided to suspend procedure of coordination of rules of systems of "electronic" money (the internal order No. 627-r of 16.12.10) before adoption of the relevant law.

Considering an indisputable fact that in Ukraine, users, only systems of electronic payments of "Webmoney" are more than 2 million natural and legal entities, and the average amount of one payment makes 300 UAH, reduction to uniform compliance of all standards of the current legislation of our state in the sphere of the taxation of virtual monetary circulation gains special importance in a context of implementation of the plan for filling of the state budget.

Literature

1. Why nobody knows real turns of the market of electronic payments? – [Electronic resource]. – Access mode:  http://kontrakty.ua/article/45850 . – The name from the screen.

2. Shamrayev A.V. Legal regulation of information technologies (analysis of problems and main documents). Version 1.0. – M.: "Statute", 2003. – 1013 pages.

3. "Law" beyond the Law. – [Electronic resource]. – Access mode:  http://e-commerce.com.ua/2011/01/закон - out of - zakona/. – The name from the screen.

Source: Scientific and practical conference "Legal Support of Commercialization of Results of Researches and Development", on May 22, 2012, Research institute of legal support of innovative development of National academy of legal sciences of Ukraine.

Published: 17.05.2014