{"id":5968,"date":"2026-11-06T09:00:00","date_gmt":"2026-11-06T06:00:00","guid":{"rendered":"https:\/\/svaroglaw.com\/?p=5968"},"modified":"2026-11-06T10:00:59","modified_gmt":"2026-11-06T07:00:59","slug":"podatkova-konsultacziya-donarahuvannya","status":"publish","type":"post","link":"https:\/\/svaroglaw.com\/en\/blog\/podatkova-konsultacziya-donarahuvannya\/","title":{"rendered":"You acted on a tax consultation, but the STS assessed additional tax: what you will have to pay and what you won’t"},"content":{"rendered":"

A tax consultation does not release you from additionally assessed tax, even if you followed it to the letter (paragraphs 53.1 and 112.6 of the Tax Code, or TC): the tax can be removed only by proving that the tax assessment notice is unlawful. The law does release you from the fine and the penalty (penya) if it was your individual tax consultation (ITC), issued on paper or electronically and registered in the unified register, or a generalised tax consultation of the Ministry of Finance (TC 112.8.2 and 129.9.2).<\/strong> An oral answer from the tax office, an explanation in ZIR (the State Tax Service knowledge base) or someone else’s ITC does not release you from the fine, although it may help prove that you were not at fault.<\/p>\n

You can still come across a quotation from the old TC 53.1, under which a taxpayer who acted on a consultation \u201ccannot be held liable, including financially (fines and\/or penalty)\u201d. From 1 January 2021, Law No. 466-IX deleted these paragraphs. What remained in TC 53.1 was the rule that had been there before: such taxpayers \u201care not released from the obligation to pay the tax liability\u201d. The release from the fine and the penalty was moved to TC 112.8.2 and 129.9.2, and these no longer say anything about protection after a consultation is amended or revoked.<\/p>\n

Few taxpayers obtain a written ITC: in the public report of the State Tax Service (STS) for 2025, the line \u201cRegister of individual tax consultations\u201d shows 7.0 thousand, while ZIR had 4.3 million visits that year. An answer from a Tax Consultant Office is not an ITC from the register either, although the Offices the STS opened last year have already provided 185,000 consultations (STS, 8 September 2026).<\/p>\n

Which tax consultations remove the fine and the penalty, and which do not<\/h2>\n
<\/svg>Releases you from the fine and penalty<\/span>

Your own ITC, on paper or electronic, registered in the unified register (TC 112.8.2). A generalised tax consultation (GTC) approved by a Ministry of Finance order protects you in the same way: the Supreme Court referred to this part of TC 112.8.2 in cases No. 420\/29881\/24 and No. 320\/27070\/24.<\/p><\/div><\/div>

<\/svg>Does not release you from the fine<\/span>

An oral answer from the tax office does not release you, because TC 112.8.2 requires a paper or electronic ITC from the register. An answer in ZIR, in the words of the STS itself, \u201cis not a tax consultation\u201d. Someone else’s ITC \u201cmay be used exclusively by the taxpayer to whom such consultation was provided\u201d (TC 52.2). And a letter replying to a request that lacks the mandatory details is not a consultation at all (TC 52.1, para. 8).<\/p><\/div><\/div><\/div>\n

With the penalty, things are less clear-cut: TC 129.9.2 does not mention the register, but under the Tax Code’s definition an ITC is an explanation \u201cregistered in the unified register of individual tax consultations\u201d (TC 14.1.172-1). We have not found any Supreme Court case law on oral consultations and the penalty, so without a written ITC it is better not to count on the penalty being annulled.<\/p>\n

Without an ITC, the fine can still be removed by arguing that you were not at fault. Where liability depends on fault, the STS must prove that the taxpayer acted \u201cunreasonably, in bad faith and without due care\u201d, and any doubts are interpreted in the taxpayer’s favour (TC 112.1, 112.2, 112.7). In our view, a tax office explanation that you relied on can also serve as evidence of due care. Back under the old version of the Tax Code, the Supreme Court upheld the cancellation of a UAH 757,351.53 fine: given the Instruction and the information from ZIR, the taxpayer \u201chad legitimate expectations\u201d as to the deadline, and the court found no fault (No. 826\/16260\/16).<\/p>\n

Tax, a 10\u201350% fine and the penalty: what a consultation removes<\/h2>\n
\n\n\n\n\n\n\n\n
What the STS assesses<\/th>\nDo you pay if you acted on your own ITC from the register or on a GTC?<\/th>\nProvision<\/th>\n<\/tr>\n<\/thead>\n
Tax (principal payment)<\/td>\nYes, unless you prove that the tax assessment notice is unlawful: a consultation does not release you from the tax<\/td>\nTC 53.1, 112.6<\/td>\n<\/tr>\n
Fine: 10% of the understated amount, 25% if intentional, 50% if repeated intentionally within 1,095 days<\/td>\nNo<\/td>\nTC 112.8.2; 123.1, 123.2, 123.3<\/td>\n<\/tr>\n
Penalty: 120% of the NBU discount rate, on an annual basis, for each day of understatement (from 18 September 2026 this is 19.2% per annum)<\/td>\nNo: no penalty is charged, and any penalty already charged is annulled<\/td>\nTC 129.9.2; 129.4<\/td>\n<\/tr>\n
Fine where the consultation was oral, from ZIR or issued to another taxpayer<\/td>\nAs a general rule, yes, if the STS proves you were at fault<\/td>\nTC 112.1, 112.2, 112.7<\/td>\n<\/tr>\n<\/tbody>\n<\/table><\/div>\n

The case of Predium LLC (No. 640\/21409\/21) shows that a consultation does not cancel the tax. Having received an ITC dated 18 August 2020 concerning land to which the rights were not registered in the cadastre, the company filed an amended return reducing its land tax for 2020 from UAH 2,608,204.46 to zero. The first-instance and appeal courts ordered the tax office to prepare a conclusion on the refund of UAH 2,371,085.07, but on 22 October 2025 the Supreme Court dismissed the claim: land tax is paid for the actual use of a plot, regardless of how the rights to it are formalised.<\/p>\n

A hypothetical example: you applied a tax benefit exactly as stated in your ITC from the register, but the audit disagreed. The STS assesses UAH 100,000 of tax, a UAH 10,000 fine (TC 123.1) and a penalty. For simplicity, we calculate the penalty for one year at a constant rate: 120% \u00d7 16% NBU discount rate (from 18 September 2026) = 19.2% per annum, i.e. UAH 19,200. Together with the tax and the fine, that comes to UAH 129,200. If the audited transaction matches the one described in your request, the fine is cancelled under TC 112.8.2, the penalty is annulled under TC 129.9.2, and only the UAH 100,000 of tax remains payable. Without a consultation, the penalty would keep growing even while you appeal, because it is charged for the entire period of understatement (TC 129.1.2).<\/p>\n

\"Hypothetical<\/a><\/p>\n

While martial law is in effect, the fine and the penalty can be avoided even without a consultation. If the tax assessment notice was issued following a documentary audit started or resumed on or after 1 August 2023, and you pay the additionally assessed tax within 30 calendar days from the day after you receive the notice, the fine is deemed cancelled and no penalty is charged (TC, Section XX, subsection 10, paragraph 69, subparagraph 69.37). But an amount paid this way can no longer be challenged, so this route suits you only when there is no point in disputing the tax.<\/p>\n

Rulings under the old TC 53.1: why they are no longer relied on<\/h2>\n
<\/svg><\/span>

Case No. 480\/5366\/22: the old TC 53.1 did not help, but the notice was set aside for a different reason<\/h3><\/div>

The STS assessed UAH 8,000,866 of tax against the private agricultural enterprise Slobozhanshchyna Agro on dividends paid to a Cypriot company in the first quarter of 2021: in the tax office’s view, 15% should have been withheld instead of 5% under the Convention with Cyprus (tax assessment notice of 28 January 2022). The taxpayer relied on an ITC of 13 May 2022, obtained after the notice had already been issued, but the first-instance and appeal courts found this argument groundless: the consultation merely stated that the Convention does not restrict the type and form of investment.<\/p>\n

In its cassation appeal the taxpayer also cited Supreme Court case law under the old TC 53.1, but on 27 September 2023 the Supreme Court found four such rulings irrelevant: these provisions were \u201cdeleted from the Tax Code of Ukraine on the basis of Law of Ukraine No. 466-IX of 16 January 2020\u201d. The Supreme Court remitted the case for retrial, and this time the courts set aside the notice under Art. 10(2)(a) of the Convention (the 5% rate); on 23 June 2026 the Supreme Court upheld those decisions.<\/p>\n

How to apply this:<\/strong> for periods from 2021 onwards, rely on TC 112.8.2 and 129.9.2, because the Supreme Court considers case law under the old TC 53.1 irrelevant. A court cancels the tax only when it agrees with your reading of the provision. And request an ITC before the transaction and about that specific transaction: we have not come across a Supreme Court conclusion on a consultation obtained after the notice.<\/p><\/div>\n

We have not seen a single post-2021 ruling in which the fine or the penalty was cancelled precisely because the taxpayer acted on an ITC, while the tax was left in place. So in tax disputes in court<\/a>, a consultation is best combined with the argument that you were not at fault.<\/p>\n

How to obtain an individual tax consultation you can rely on<\/h2>\n

The STS provides an ITC free of charge within 25 calendar days, counted from the day after it receives the request. This period may be extended by no more than another 15 days if the STS notifies you of this in writing before the first 25 days expire (TC 52.1). A written ITC is issued by the STS or its territorial body, while a state tax inspectorate gives only oral consultations (TC 52.4). The request must contain (TC 52.1, paras 3\u20137):<\/p>\n