Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
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197402ZU34
ppi 201502ZU4645
Vol.39 N° 71
2021
Recibido el 03/10/2021 Aceptado el 23/11/2021
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
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de Es tu dios Po lí ti cos y De re cho Pú bli co Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
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avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
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Vol. 39, Nº 71 (2021), 405-416
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Guarantees within tax legal relations:
challenges of the present day
DOI: https://doi.org/10.46398/cuestpol.3971.22
Yevhen Leheza *
Andrii Novytskyi **
Alina Kravziuk ***
Nataliia Repekha ****
Artem Yefremov *****
Abstract
The purpose of the research is dedicated to modern challenges
related to the implementation of legal guarantees within tax
legal relationships. Legal guarantees within tax legal relations
are the embodiment of the constitutional and legal guarantees of
human and civil rights and, at the same time, act as an integrated
intersectoral tool, covering both the administrative, nancial and
tax spheres respectively. The methodological basis of the article
consisted of a set of general and special methods of scientic knowledge
that, when applied, provide the opportunity to achieve the stated
objective and ensure the scientic reliability and validity of the theoretical
conclusions obtained. It is concluded that, to implement the potential to
ensure taxpayers’ choice of alternative methods of taxation, it is necessary
to create conditions for commercial entities to perform the appropriate
calculations and make the appropriate decisions. Entrepreneurs should
receive government help in this through various electronic services.
Keywords: taxpayers; tax legal relationships; legal guarantees; electronic
services; alternative tax systems.
* Professor, Doctor of Science in law, Professor at the Department of Administrative and Customs Law,
University of Customs and Finance, Dnipro, Ukraine. ORCID ID: https://orcid.org/0000-0001-9134-
8499
** Andrii Novytskyi, Doctor of Science in Law, Professor, State Fiscal University of Ukraine. Ukraine.
ORCID ID: https://orcid.org/0000-0001-6860-9654
*** Alina Kravziuk, graduate student, State Fiscal University of Ukraine. Ukraine. ORCID ID: https://
orcid.org/0000-0002-1735-5225
**** Nataliia Repekha, graduate student, State Fiscal University of Ukraine. Ukraine. ORCID ID: https://
orcid.org/0000-0002-5901-7259
***** Artem Yefremov, PhD in Science of Law, Head of the Main Directorate of the STS in Kharkiv region.
Ukraine. ORCID ID: https://orcid.org/0000-0001-7972-0323
406
Yevhen Leheza, Andrii Novytskyi, Alina Kravziuk, Nataliia Repekha y Artem Yefremov
Guarantees within tax legal relations: challenges of the present day
Garantías dentro de las relaciones legales tributarias:
desafíos actuales
Resumen
El propósito de la investigación está dedicado a los desafíos modernos
relacionados con la implementación de garantías legales dentro de las
relaciones legales tributarias. Las garantías legales dentro de las relaciones
jurídicas tributarias son la encarnación de las garantías constitucionales
y legales de los derechos humanos y civiles y, al mismo tiempo, actúan
como una herramienta intersectorial integrada, que abarca tanto el
ámbito administrativo como el nanciero y tributario respectivamente.
La base metodológica del artículo consistió en un conjunto de métodos
generales y especiales de conocimiento cientíco que, al ser aplicados,
brindan la oportunidad de lograr el objetivo planteado y asegurar la
conabilidad cientíca y validez de las conclusiones teóricas obtenidas.
Se concluye que, con el n de implementar el potencial de garantizar la
elección de los contribuyentes de métodos alternativos de tributación, es
necesario crear condiciones para que las entidades comerciales realicen los
cálculos adecuados y tomen las decisiones adecuadas. Los emprendedores
deberían recibir gubernamental ayuda en esto mediante diversos servicios
electrónicos.
Palabras clave: contribuyentes; relaciones jurídicas tributarias;
garantías legales; servicios electrónicos; sistemas
tributarios alternativos.
Introduction
In recent years, scholars and practitioners, especially in the eld of
jurisprudence, are concerned about how eective is the procedure of
guaranteeing human and civil rights by the Ukrainian state, and which
model of the state is more able to guarantee for citizens their rights and
freedoms? This necessitates the clarication of various approaches to
the concept and possible classication of “guarantees of human and civil
rights and freedoms with legal guarantees within tax legal relations taking
a prominent role in these rights and freedoms. It is generally believed
that guaranteeing legal protection and protection of human rights is a
comprehensive function of the state.
Guarantees within tax legal relations are a sectoral embodiment of
the system of constitutional guarantees of human rights and freedoms.
The subject of regulation of tax law is presented as a set of nancial
and legal norms governing public relations arising in connection with
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CUESTIONES POLÍTICAS
Vol. 39 Nº 71 (2021): 405-416
the establishment, collection, change or abolition of taxes, fees, other
mandatory payments to budgets of various levels and trust funds in form
of monetary assets ensured by the coercive force of the state apparatus.
Tax law is a system of nancial and legal relations, which regulates the tax
relations of state bodies and taxpayers to establish, change and collect a
part of taxpayers’ income to the budget, - says P.T. Gegha (Gegha, 2003).
It is also worth recalling that according to Professor M.P. Kucheryavenko,
the tax right is in a state of administrative law, or even belongs to it as an
independant institution (Kucheryavenko, 2003). Thus, Legal guarantees
within tax legal relations are the embodiment of constitutional and legal
guarantees of human and civil rights and at the same time they act as an
integrated intersectoral tool, which covers the administrative sphere as well
as nancial and tax spheres.
1. Literature Review
The legal term “guarantee” comes from the French “garantie”,
which means a surety, a condition that provides something. In modern
encyclopedic literature, the concept of guarantee (from the French ‘garantie’
- security, surety) of human and civil rights and freedoms is understood as
conditions, means, methods that ensure a full-range implementation and
comprehensive protection of individual rights and freedoms. The concept
of “guarantee” covers the whole set of objective and subjective factors aimed
at the practical realization of rights and freedoms, to eliminate possible
obstacles to their complete or proper implementation (Shemshuchenko,
1998).
From the standpoint of the theory of law and domestic constitutionalism,
the issue of guarantees of human and civil rights and freedoms is a
topic widely covered in scientic publications. The situation with the
applied aspect of assessing the impact of guarantees precisely in the legal
relationship of a tax nature is quite dierent.
When dening the concept of guarantee V. M. Kornukov wrote:
Everything that to any extent contributes to achievement of certain results or
provides a certain condition can be regarded as a guarantee of the relevant activity
or condition, because it promotes this activity, protects this condition, that is it
guarantees them. The general concept of a guarantee is often quite conditional
and, if the expression may be tolerated, mobile, because what in one case is a
guarantee, in another case is not such (Kornukov, 1988: 410).
It should be noted that the concept of guarantees reects the perfection
of legislative technique and the variety of law language forms. In his work
V. F. Pogorilko considers legal guarantees as the provision by the state of a
formal (legal) generally binding nature of conditions necessary for everyone
408
Yevhen Leheza, Andrii Novytskyi, Alina Kravziuk, Nataliia Repekha y Artem Yefremov
Guarantees within tax legal relations: challenges of the present day
could be able to exercise his/her constitutional rights and freedoms. Legal
guarantees are established by the state in the Constitution and norms
of the current legislation. Their purpose is to provide real legal means
for maximum exercising protection of rights and freedoms of citizens
(Pogorilko, 1999).
When speaking about implementation of rights and freedoms of persons
and citizens A.R. Yuzer noted that within the limits of the whole (system)
the purpose of guarantees consists in that they are called to provide such
most possible and favorable situation for person’s rights and freedoms
(those written down in the Constitution and laws) could become the de
facto position of each individual and citizen (Yuzer, 2018).
O.F. Skakun believes that the guarantees of human and civil rights,
freedoms and responsibilities are a system of social and economic,
political, legal conditions, methods and means that ensure their actual
implementation, protection and reliable protection. When it is not about
guarantees, rights, freedoms and responsibilities of persons and citizens
take the form of declarations of intent (Skakun, 2006).
Guarantees help to x ways for achieving reality of rights and freedoms
(the way guarantees unction) - provision, implementation, protection and
defense of rights and freedoms.
The system of guarantees also includes such guarantees as social and
political, social and economic (material), ideological, legal (lawful).
The role and signicance of guarantees of individual rights and
freedoms is determined by the fact that they are important factors in the
economic, political, legal, cultural and other spheres of social life, which
create conditions for real possibility to implement individual rights and
freedoms. The system of guarantees of individual rights and freedoms is
quite complex and extensive.
Economic guarantees of rights and freedoms constitute a separate
important group of guarantees. Their signicance is especially raised in the
conditions of a market economy, under creating a material basis of life of
the society. It should be noted that economic guarantees of human and civil
rights and freedoms in Ukraine deserve a special attention. Let’s consider
how this concept is interpreted by modern scientists. V. F.Pogorilko states
economic guarantees of rights and freedoms of citizens of Ukraine as:
method of production; economic freedom of citizens and their associations
in choosing forms of ownership and carrying out business activities;
economic system of the society which should ensure a steady growth of
productive forces based on recognition and protection of various forms of
ownership of the means of production; socially-oriented market economy
(Pogorilko, 2006).
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According to V.Y. Tatsiy and Y.M. Todyka economic and social
guarantees include material conditions and social environment that ensure
the free use of human rights and freedoms (Tatsiy et al, 1999).
Thus, an important task of the present day consists in the necessity to
assess the current state and challenges of practical realization of guarantees
within tax legal relations, as a special variety of economic guarantees of
persons and citizens.
2. Material and Methods
The methodological basis of the article consists in a set of general and
special methods of scientic knowledge which if applied give an opportunity
to achieve the set goal and ensure the scientic reliability and validity
of the obtained theoretical conclusions. The consistency and positivity
of methodological application results is due to their complexity, which
naturally led to the completeness, comprehensiveness and objectivity of the
formulated scientic conclusions. The research was based on a systematic
method, which contributed to a comprehensive and objective study of legal
phenomena and categories in the process of their interaction. In particular,
the systematic approach is used to determine the system of legal doctrines,
dene the place of guarantees within tax legal relations, establish a system of
subjects of forming guarantees within tax legal relations, outline the system
of principles of guarantees within tax legal relations. Based on taking into
account such qualities of the system as component, integrativeness, the ratio
of the whole and a part, functions and structure functional and structural
analysis provided an in-depth study of such categories as “doctrine”, “legal
doctrine”, “guarantees within tax legalrelations”, etc.
3. Results and Discussion
Important challenges of today in the sphere of practical implementation
of guarantees in tax legal relations of Ukraine include three interrelated
elements. We are talking about the widespread use of international
practice to guarantee taxpayers’ choice of alternative ways of taxing their
income, challenges of special territorial tax proles and guarantees for
their participants, the widespread use of “electronic legal relations” in tax
administration (in Ukraine it is better known as “digitalization”).
1. Guarantees for payers’ choosing alternative methods of taxation.
Economic (stimulating) function is one of the key functions of taxation,
which ensures harmonization of interests of all participants of tax relations.
By means of this function the state can encourage taxpayers to develop
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Yevhen Leheza, Andrii Novytskyi, Alina Kravziuk, Nataliia Repekha y Artem Yefremov
Guarantees within tax legal relations: challenges of the present day
those areas and activities that meet the priorities of the national economy,
stimulate the intensication of investment processes and rational use of
resources etc. On the other hand, with the help of tax policy, the state can
prevent development of areas it is not interested in.
Alternative taxation systems are a common tool for optimizing the tax
burden on small businesses. Tax reform gives us an opportunity to talk more
specically about the special attitude to small businesses in this area. Small
enterprises with regard to their payment of taxes have got a possibility of a
certain choice, limited by the requirements of the tax legislation: taxpayer
applies either the general tax prole or an alternative system. When the
taxation system is properly selected business entities receive opportunities
to optimize the burden of paying taxes and focus their eorts on other tasks.
Researching foreign countries’ experience in legal regulation of taxation
of small and medium-sized businesses have an opportunity to reveal the
following specic features: according to the legislation of most developed
countries small and medium-sized businesses are dened as a special
subject of state regulation; the specics of taxation of such payers consists in
the possibility to apply privileges, choice of alternative taxation, simplied
reporting and increase of investment activity of small and medium-sized
businesses; alternative taxation systems have more incentive principles for
businesses and eciency of tax administration for these categories, and
namely these principles include: the principle of certainty, the principle of
suciency and elasticity of tax receipts, the principle of social justice and
the principle of economic substantiation, as compared to the principles of
the general taxation system (Anistratenko, 2017).
Alternative taxation systems are a certain manifestation of the society
democratization. In their presence business entities (taxpayers) have the
opportunity to independently choose tax conditions of management, i.e.
they have the opportunity to actively inuence this factor of the external
environment, and this signicantly increases the degree of their freedom in
making business decisions. Therefore, the possibility of applying alternative
taxation systems at the level of business entities should be considered as
one of the reserves to improve the eciency of their management.
In developed countries, alternative taxation systems are aimed at
stimulating the development of certain sectors of the economy and
prioritized forms of entrepreneurial activity. The systemic nature of these
tax regulation instruments is manifested in the fact that in case of their
application the structure of tax payments and tax objects are fundamentally
changed.
The alternative nature of these systems in most countries that use such
a regulator is determined by the following factors:
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CUESTIONES POLÍTICAS
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the same activity carried out by an economic agent may be taxed
only under one taxation system - the ordinary (general) one or an
alternative one.
each of these systems is an alternative to the general taxation system,
i.e. it limits the relevant list of taxes and fees that are mandatory.
At that, the choice of one of these systems exempts the payer from
paying a number of the most legally signicant taxes and fees, which
are provided by the general system.
transition to one of these taxation systems (subject to the established
restrictions) is largely conditioned by the decision of the taxpayer
itself.
In the Tax Code of Ukraine, a separate chapter 1 of Section 14 “Special
Tax Proles” is devoted to the issues of simplied system of taxation,
accounting and reporting. This chapter establishes legal principles for
application of simplied taxation, accounting and reporting system, as well
as for collection of a single tax. A simplied system of taxation, accounting
and reporting is a special mechanism for collecting taxes and fees as well as
for keeping records. A legal entity or a sole proprietor may independently
choose a simplied taxation system if such an entity/natural person meets
the requirements and is registered as a single tax payer according to the
procedure (Law of Ukraine, 2010).
Today, there are four groups of single tax payers and a general taxation
system for sole proprietors and limited liability companies. The rst group
is created for traders in the markets; the fourth group is for farmers. The
general system, the second and the third groups are the most common in
Ukraine. The rst group of sole proprietors pays the single tax and the unied
social tax (the UST), has a limit of UAH 1,002,000 of annual turnover, has
the right to trade in the markets and provide household services to the
population. Types of services are listed in paragraph 291.7 of the TCU.
The second group of sole proprietors pays the xed unied social tax and
the single tax monthly, has a limit of UAH 5,004,000 of annual turnover.
Proprietors of the second group have the right to engage in restaurant
business, production and sale of goods, as well as in provision of services
to the public and single tax payers. For example, for the IT-sector this
taxation system is not always suitable. The third group of sole proprietors
pays the UST and 5% of the income tax and has a limit of UAH 7,002,000
of annual turnover. This group is also suitable for legal entities and gives
an opportunity to provide services without restrictions. The fourth group is
created for agrarians and has its own registration conditions.
Thus, at rst glance, the eectiveness of implementing the guarantee
of taxpayers’ choice of alternative methods of taxation is obvious - it is
a simplied system of taxation. But it is not always right. Comparison
412
Yevhen Leheza, Andrii Novytskyi, Alina Kravziuk, Nataliia Repekha y Artem Yefremov
Guarantees within tax legal relations: challenges of the present day
of alternative taxation systems and the general taxation system gives an
opportunity to conclude on the feasibility and necessity of such alternatives
that stimulate activity of small businesses and, as a consequence, increase
economic growth (Slatvinska, 2012). At the same time, in order to more
or less accurately calculate the amount of taxes that will have to be paid
in the case of choosing a particular taxation system it is necessary to know
the estimated amounts of revenue and expenses, and this is not always
possible. However, for typical cases, recommendations can be made based
on the knowledge of typical economic indicators, even without accurate
calculations. For a legal entity, the correct choice of a proper taxation
system is a more dicult task than for a sole proprietor (a natural person).
This can be done most accurately by comparing results of calculations of
several alternatives using the respective estimated amounts of income and
expenses.
Alternative taxation systems solve two extremely urgent problems:
implementation of the regulatory function of taxation, in particular
stimulating the growth of activities and ecient use of available
resources, as well as stimulating eective employment of population
and small business development as a basis for formation of an
entrepreneurial initiative in the country;
reduction of administrative pressure on business activities, which
signicantly reduces expenses of the state for administration of
taxes as well as taxpayers’ fees and the costs for preparation of
reports, and it also reduces the risk of errors and application of
penalties. This aspect, along with the reduction of the tax burden
in many cases, is crucial for taxpayers in making a decision on the
transition to this or that alternative system.
Thus, in order to implement the potential of guaranteeing taxpayers’
choice of alternative methods of taxation it is necessary to create conditions
for business entity’s performing appropriate calculations and making
appropriate decisions. Entrepreneurs should be helped in this by various
electronic services (Halaburda et al., 2021).
2. Distribution of “electronic legal relations” in the sphere of tax
administration. The modern Internet has become a universal means of
communication, commerce, instant payments, a space for the realization
of rights and interests of individuals, and the unimpeded access to the
web environment is recognized as one of the universal human and civil
rights. Formation of the doctrine of “electronic rights” or «digital rights» of
individuals is going on. It is natural that such a situation requires legislator’s
close attention to the mechanisms of protection and defense of the rights,
freedoms and interests of both individual Internet users and the society as
a whole. Not least of all, this concerns the regulation of present day tax legal
relations.
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Creation of an eective public and legal mechanism for legal regulation
of public relations using the Internet-network is incomplete. Active
development of the information society and digital economy, global
processes of digital transformation in Ukraine and the world in general,
form the tasks set out in the CMU Program of Activities on “the state in
smartphones”, “digitalization of the economy” and “digital transformations”
in government (Leheza et al., 2018).
In order to implement the guarantees of taxpayers, it is necessary to
develop a separate electronic system (interactive service). Conventionally it
can be called “Choice of alternative taxation system” module. With its help,
taxpayers will be able to choose their optimal taxation system based on their
own parameters without contacting the specialists and get conrmation of
their optimal choice.
3. Special territorial proles of taxation and guarantees of their
participants. Special territorial and economic entities called Special (free)
Economic Zones (SEZ) and Priority Development Territories (PDT) are
leaders of international economic exchange of capital and goods, catalysts
for innovation and points of social and economic development. For positive
zoning results the host country must take into account both the general
developmental patterns of SEZ and PDT, and their specic features, adapt
the mechanism of special territorial and economic entities to its own
economy. As a rule, SEZs provide for a whole set of privileges which gave
an opportunity to quickly open factories and conduct business activities,
the abuse of this process ultimately led to their elimination. Ocially, the
goal of the SEZ and PDT has not been achieved: in the conditions of social
and political changes caused by events of 2004, they were assessed as “tax
havens” inside the country. In this regard, in 2005 the government decided
to liquidate FEZ (SEZ) and PDT on the territory of Ukraine (Leheza et al.,
2020).
The legislation requires a number of amendments, and namely: it is
necessary to determine the term of the special economic regime, general
management bodies created in all special (free) economic zones and their
powers, as well as to specify denite benets (privileges) provided to
economic entities depending on the type of the respective special economic
zone and conditions of privileged regimes.
In this case, it is possible to ensure solution of problems of SEZ activity,
without losing the investment attractiveness of the country’s territories
(Leheza et al., 2021).
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Yevhen Leheza, Andrii Novytskyi, Alina Kravziuk, Nataliia Repekha y Artem Yefremov
Guarantees within tax legal relations: challenges of the present day
Conclusion
Legal guarantees within tax legal relations are the sectoral embodiment of
the system of constitutional guarantees of human rights and freedoms. Legal
guarantees within tax legal relations are the embodiment of constitutional
and legal guarantees of human and civil rights and at the same time they act
as an integrated intersectoral tool, which covers the administrative sphere
as well as nancial and tax spheres. The object of guarantees is presented
as public relations related to protection of human rights, satisfaction of
proprietary and non-proprietary interests of taxpayers. Guarantees within
tax legal relations should be understood as satisfaction of the proprietary
interest of taxpayer or declarant, if we mean tax guarantees in the broadest
format, including the relationships of customs regulation. Important
challenges of today in the sphere of practical implementation of guarantees
in tax legal relations of Ukraine include three interrelated elements.
It is about the widespread use of international practice to guarantee
taxpayers’ choice of alternative ways of taxing their income, challenges
of special territorial tax proles and guarantees for their participants,
the widespread use of “electronic legal relations” in tax administration
(in Ukraine it is better known as “digitalization”). In order to implement
the potential of guaranteeing taxpayers’ choice of alternative methods of
taxation it is necessary to create conditions for business entity’s performing
appropriate calculations and making appropriate decisions. Entrepreneurs
should be helped in this by various electronic services. In order to implement
the guarantees of taxpayers, it is necessary to develop a separate electronic
system (interactive service).
Conventionally it can be called “Choice of alternative taxation system”
module. With its help, taxpayers will be able to choose their optimal taxation
system based on their own parameters without contacting the specialists
and get conrmation of their optimal choice. Another important guarantee
of taxpayers’ rightsis the restoration of special (free) economic zones as part
of the power decentralization program in Ukraine, when the development
interests of separate territorial communities provoke creation of special
(free) economic zones for implementation of projects in these territories.
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