Cases

REFUSAL OF THE BUYER TO SETTLE A DEBT BECAUSE OF FAILURE TO SUBMIT VAT DOCUMENTS

Problem: The grain trader (the customer of our company) signed a grain delivery contract at 83% of the prepayment and 17% of the payment on the basis of actual delivery for the submission of documents according to the list. The counteragent refused to pay 17% of the cost, referring to incomplete provision by the Supplier of the documents in accordance with the contract, including those relating to the payment of VAT.
The size of the debt at the time of the client’s request to the law firm was about 900 000 UAH.
Solution: Based on current legislation and judicial practice, we have formed a legal position that allowed us to sue for debt collection. The claim was fully satisfied by the decision of the court of first instance, the appellate and cassation instances upheld the decision of the court of first instance.
Additionally, debt settlement was settled without opening an enforcement proceeding.
Result: The customer was charged with arrears, taking into account the penalties and indexes stipulated by the agreement and legislation, within 6 months from the moment of applying to the law firm.

REGULATION OF DISPUTES UNDER THE TREATY ON THE PROVISION OF SERVICES IN THE ABSENCE OF PRIMARY DOCUMENTS

Problem: IT company (our client) provided information services in favor of the Customer, while only “framework agreements” were signed. The annexes to the contracts and services provided are not concluded, services are provided on the basis of oral agreements and e-mail correspondence. In the process of rendering services, the Customer got into debts and there were unsettled claims to the quality of services.
The cost of services unconfirmed by primary documents at the time of client’s appeal to a law firm was about 1 200 000 UAH. The amount of the debt – about 300 000 UAH.
Solution: We analyzed the strengths of the situation and developed the main levers of pressure, made a forecast of options for the development of the situation and provided a risk assessment for each option. On the basis of the said analytics, a negotiation process was initiated; a roadmap was prepared and implemented on the basis of mutual agreements, which allowed to translate the legal relations of the parties in the legal movement in full.
Result: The parties signed all necessary annexes to the agreements, acts and other primary documents, recorded the debt and terms of its repayment, and developed a procedure for eliminating the shortcomings of the services rendered

CANCELLATION OF THE COURT DECISIONS OF THE FIRST AND APPEALING INSTANCES CONCERNING DEBT COLLECTION IN THE PRESENCE OF A DOCUMENTARY SUPPORT OF THE DEBT

Problem: Arrears were created artificially in the state enterprise, after which a chain of retrenchment claims was made. The new creditor appealed to the Commercial Court with a claim for debt collection, which, due to the passive position of the lawyers of the DP, was satisfied, the appeal was left without satisfaction. The indicated company appealed to our company with a request for rendering legal services for the annulment of court decisions in cassation instance.
Solution: After a detailed analysis of the case file, supplemented by the study of judicial practice, we formed a legal position, which was reflected in the cassation appeal to the decisions of the courts of the first and appellate instances. The weaknesses of the court decisions were found out, the facts of incomplete study of the materials of the case; violations of the rules of substantive and procedural law were revealed.
Result: The Cassation Economic Court in the Supreme Court of Ukraine was satisfied with the cassation appeal, the case was referred to a new trial before the court of first instance.

Development and implementation of a set of measures aimed at combating parallel and illegal import of products

Problem: An official importer of gas equipment in Ukraine has asked a law firm to develop a set of measures aimed at combating the unauthorized and illegal import of the above-mentioned equipment by unscrupulous competitors, and then to apply such measures in practice in order to achieve a positive result.
Solution: Based on the norms of the current legislation of Ukraine and international legal norms, we have developed the documents necessary for the execution of our client’s powers aimed at protecting intellectual property rights against unlawful use by third parties, an active mechanism of pressure on unscrupulous importers has been proposed with the involvement of authorized state bodies power.
Result: After implementation of the forgoing measures, the volume of sales of illegally imported products via the Internet was substantially reduced, a number of appeals to law enforcement agencies was carried out, criminal proceedings were filed against officials. Individual companies stopped their illegal practices voluntarily.

Law firm WINNER has defended the rights of a construction company in a lawsuit with a state tax office.

Factual allegations
The company, which is engaged in the implementation of a complex of specialized construction works, has entered into a contract with the customer company for the construction of the building.
In order to perform part of the concrete work, the contractor concluded a subcontract with another company, which also has a license for construction work.
The subcontractor and contractor’s work was successfully completed, duly executed and handed over to the customer, who started using the built facility in his business activities.
However, at the time of our client’s verification, the tax authority concluded that the actual execution of business transactions with a subcontractor was not confirmed. At the same time, the verification does not establish any facts that would deny the reality of the implementation of the said business transactions or indicate that there is no connection of such operations with the economic activities of the client, whose main activity is the construction of residential and non-residential buildings. The findings of the audit were based on the fact that the subcontractor had weaknesses in its activities.
According to the results of the audit, the tax authority has drawn up an act and issued a tax notice-a decision on the overstatement of the tax credit by the client.

Legal position
A legal position was prepared by a team of lawyers from the Winner Law Company, which led to the cancellation of the tax notice-a decision.
The position was based on the fact that the contractor of the client (subcontractor) was a VAT payer in accordance with the current legislation and duly registered in the Unified State Register of Legal Entities and Individual Entrepreneurs, that is, he had a sufficient amount of legal capacity for the conclusion of the contract. In its turn, the current legislation does not set the condition for the taxpayer’s tax obligations depending on the state of tax accounting of its counterparties, the actual location of them at the place of registration and availability or absence of fixed assets. The taxpayer cannot be held liable for the failure of his contractors to fulfill their tax obligations.

Result
Due to the effective operation of the Winner Law Company, courts of the first and appellate instances, the tax notice-decision was found to be unlawful and canceled.

WINNER Law Firm recently successfully defended the rights of the importer in a lawsuit with the Ukrainian Customs of the State Fiscal Service

Factual allegations
Our client – a foreign importer company, whose front office is located in Turkey, has signed a contract for the supply of goods with a Ukrainian company engaged in the implementation of the appropriate type of goods.
During the transportation of goods across the state border of Ukraine, customs officers wrote a protocol on violation of customs rules, according to which the value of the goods was considered low. In this regard, it was temporarily suspended until the final decision of the matter by the court.
Sanctions of Part 1 of Art. 483 of the Customs Code of Ukraine provided for liability in the form of a fine of 100% of the value of the goods, with the confiscation of such goods in the state’s income.

Legal position
A legal position was developed by a team of lawyers from the Winner Law Company, which led to the decision to return the goods temporarily withdrawn.
The position was based on the fact that according to Art. 53, 57 of the Customs Code of Ukraine documents confirming the customs value of goods is invoice, and the customs authority is obliged to determine the customs value, first of all, from the contract concluded between the companies.
Since the contract stipulates that the price of the goods is indicated on the invoice, then the invoice is invoiced to the contract and is the document according to which the customs value should be determined. The use of other ways to determine the value is inappropriate. That is, the proper document confirming the value of the cargo is exactly the invoice provided for the passage of customs control.
It was also noted that documents not provided by the importer for customs clearance can not confirm the underestimated value of the goods.

Result
Due to the effective operation of the Winner Law Company, by a court decision of the appellate court, temporarily withdrawn goods were obliged to return the company to the importer.

Construction Law
The law firm WINNER had a task from the client to evaluate the documentation of a third person as a land user in order to further sign an investment contract for the construction of an object.

To accomplish the task, the following documents were evaluated by the employees of our company and their availability (absence):

  • documents for possession or use of a land plot;
  • availability of permits;
  • availability of project documentation;
  • compliance of the desired Object with the intended purpose of the land plot;
  • availability of complete package of permit documentation.

During the study of these documents, we identified some issues regarding the land plot. This was reported to the client with indication of possible consequences in case of failure to correct deficiencies. The greatest risk was the cessation of any rights to the land, and as a consequence, the Object in which it was planned to invest.
The client, having received from us a conclusion, has made certain actions for minimization of risks in the future. All essential conditions were further specified and enumerated in the Investment Agreement, thereby incorporating the additional terms of the client’s security in cooperation with the investment of the new Object.

Contracts, AGREEMENTs, MEMORANDUM) for registration of future relations according to the direction of its activity with others

At the request, certain models of the contract were developed (Investment Agreement, Memorandum, Agreement on the intention to cooperate, Preliminary agreement on the sale and purchase of corporate rights, etc.).

The client has been identified (drawn attention) to essential conditions that should be taken into account and available when entering into any contracts (agreements) for their further security and minimizing risks with other legal entities.

Additional current assistance from our Legal Company for this client is further advising on the developed samples, and, if necessary, additional processing of details for each contract (agreement, memorandum, etc.).