Features of the choice of tax systems by participants of relations in the field of e-commerce

Author: Michael Kocherov, Candidate of Laws, Partner, Lawyer
Media title: "Lawyer and Law", online edition, №33
Exit: 08/16/2018

The harmonious relationship between the norms of various areas of legislation is an integral part of the concept of "quality of legislation." Any regulatory act must have its own consumer, that is, it must meet the needs of society in a particular area of ​​the relationship.The adoption of the Law of Ukraine "On e-commerce" at one time was due to the need for systemic regulation of the relations of e-commerce market participants, which, according to the authors of the draft law, made it possible to improve the country's economy and improve the investment climate.It is obvious that the implementation of business activities in the field of e-commerce is possible only under the condition of creating legal, organizational and economic prerequisites.If we talk about economic conditions, first of all, we should take into account the peculiarities of taxation of business entities that will be participants in such relations.As is known, the majority of small businesses have chosen a simplified taxation system, which makes it possible to work legally, avoiding the payment of individual taxes and complex accounting and reporting.However, taking into account clause 291.6 of Article 291 of the Tax Code of Ukraine (hereinafter referred to as the Tax Code of Ukraine), single tax payers of the first and third groups must pay for the goods shipped (work performed, services rendered) exclusively in cash (cash and / or non-cash).Let us consider in more detail the question: can the indicated payers be subjects of relations in the field of electronic commerce?The law, which defines the general principles of functioning of payment systems and settlement systems, is the Law of Ukraine "On Payment Systems and Transfer of Funds in Ukraine". According to Articles 3, 4 of this Law, funds exist in cash (in the form of banknotes) or in non-cash form (in the form of entries in bank accounts). For the transfer can be used in both forms of funds.At the same time, Article 15 of this Law defines the peculiarities of issuing electronic money and conducting operations with them. Electronic money should be understood as a unit of value that is stored on an electronic device, accepted as a means of payment by other persons than the person issuing them, and is a monetary obligation of this person, performed in cash or non-cash form. User - a business entity has the right to use electronic money to pay for goods, works and services. A business entity accepting electronic money as a payment for goods, works, services has the right to use the received electronic money exclusively for exchanging non-cash funds or return them to users in case of returning goods in accordance with the Law of Ukraine "On Consumer Protection" purchased for electronic money.If we analyze in detail the terminology used in the Law, we can come to the conclusion that the legislator distinguishes between the concepts of "money" and "means", while electronic money is only a unit of value, unlike means that are the national currency of Ukraine or foreign currency (subparagraph 14.1.93 of Article 14 of the Tax Code of Ukraine).A systematic analysis of the articles cited suggests that subparagraph 291.6 of Article 291 of the Tax Code of Ukraine deals with cash or non-cash funds, and not electronic money.In turn, according to subparagraph 298.2.3 of Article 298 of the Tax Code of Ukraine, single tax payers are obliged to switch to payment of other taxes and fees defined by this Code, if the single tax payer applies other methods of payment, than specified in paragraph 291.6 of Article 291 of this Code, - from the first day of the month following the tax (reporting) period in which this method of calculation is allowed.Based on the above, we can conclude that the Law of Ukraine "On e-commerce" has lost a significant number of its potential users - representatives of small business, who have chosen the simplified taxation system.Recently in Ukraine they say that the state policy of Ukraine is aimed at the adaptation of national legislation to the legislation of the European Union or the general business rules in the world. If this is true, then our legislators need to take into account the position of the Organization for Economic Cooperation and Development, the World Trade Organization or the UN Commission on International Trade Law, who believe that the domestic tax policies of each state should support the development of electronic commerce and eliminate barriers in the domestic economy. legislation of individual states.It remains to hope that in the near future the relevant changes will be made to paragraph 291.6 of Article 291 of the Tax Code of Ukraine, which will enable single tax payers to accept electronic money as payment for goods shipped, works and services.