Irrespective of a rather long practice of administrative proceedings in Ukraine, the range of issues of a problematic (complex) nature arising in this area does not grow smaller. These problems emerge and exist for various reasons, with the main place among them taken by the insufficient elaboration of the theoretical foundations of administrative law and administrative procedure law, as well as the reluctance (unwillingness) of judges to use scientific achievements for administering justice.

The article aims at proving that judges of administrative courts should use the achievements of legal doctrine for administration of justice (by the example of a separate category of administrative jurisdiction cases).

The article analyzes a specific court judgment passed by the Administrative Cassation Court within of the Supreme Court; its subject matter was a taxpayer’s appeal against an individual tax consultation.

The individual tax consultation concerned is analyzed through the prism of legal doctrine, in particular, the doctrine of administrative procedure law and administrative law. Firstly, the author checks whether it may be classified in the category “decision” which may be subject to review by an administrative court. It is noted that the signs of an individual act present in the individual tax consultation does not automatically ensure the possibility of an appeal against it (as well as against any other individual act) under the provisions of the Code of Administrative Procedure of Ukraine.

 Based on the semantic analysis of the categories “application of the rules of law” and “interpretation of the rules of law” the author concludes that an individual tax consultation is not an individual act (administrative act), but is an act which explains a tax rule issued in the official written manner by a subject vested with power.

The author makes a critical comment on the conclusion of judges in which they recognized an individual tax consultation as an individual act based on its classification as a legal fact, this being the ground for relieving liability of the taxpayer which acted in accordance with the explanations provided in the course of this consultation on the practical application of certain provisions of tax law. The author proves that the legislator has assumed an erroneous position which is enshrined in cl. 53.2, Article 53 of the Tax Code of Ukraine with regard to the possibility of appealing against an individual tax consultation to a court of law.

Based on the study made, the author concludes that an individual tax consultation is an act of clarification of law, for which cause it may not be recognized as an act of law application (an individual act or an administrative act), does not entail (and may entail) a violation of rights, freedoms or legitimate interests of a taxpayer and, therefore, may not be appealed against to an administrative court.

Bibliography

Authored books

1. Detterbeck S, Allgemeines Verwaltungsrecht mit Verwaltungsprozessrecht (4 Auflage, Verlag C H Beck 2006) <https://www.gesetze-im-internet.de/vwvfg/index.html> (accessed: 31.01.2019) (in German).

2. Melnyk R, Zahalne administratyvne pravo v pytanniakh i vidpovidiakh [General Administrative Law in Questions and Answers] (Yurinkom Inter 2018) (in Ukrainian).

Edited books

3. Kovalskyi V (ker) ta Hizhevskyi V ta Holovchenko V ta inshi, Populiarna yurydychna entsyklopediia [Popular Legal Encyclopedia] (Yurinkom Inter 2003) (in Ukrainian).

4. Shemshuchenko Yu (ed), Yyurydychna entsyklopediia [Legal Encyclopedia], t 2: D-I (Ukrainska entsyklopediia imeni M P Bazhana 1999) (in Ukrainian).

5. Shemshuchenko Yu (ed), Yyurydychna entsyklopediia [Legal Encyclopedia], t 6: T-Ya (Ukrainska entsyklopediia imeni M P Bazhana 1999) (in Ukrainian).

Journal articles

6. Lazor L, ‘Spivvidnoshennia publichnykh ta pryvatnykh elementiv pravovoho rehuliuvannia u pravi sotsialnoho zabezpechennia’ [‘The Interrelation of Public and Private Elements of Legal Regulation in the Law of Social Security’] (2010) 4 Forum prava 566-71 <http://www.nbuv.gov.ua/e-journals/FP/2010-4/10llipcz.pdf> (accessed: 01.02.2019) (in Ukrainian).

7. Pohrebniak S, ‘Podil prava na publichne i pryvatne (zahalnoteoretychni aspekty)’ [‘The Division of the Law to Public and Private (General Theoretical Aspects)’] (2006) 12 Derzhavne budivnytstvo ta mistseve samovriaduvannia 3-17 (in Ukrainian).

8. Zalisne Y, ‘Rozuminnia pryntsypu doviry derzhavi i pravu u Polshchi u period transformatsii derzhavnoho ladu’ [‘The Understanding of the Principle of Trust in State and Law in Poland during the Stage of State System Transformation’] (2013) 5 Prohalyny v ukrainskomu zakonodavstvi 31 (in Ukrainian).

9. Zavhorodnia V, ‘Pryntsyp zakhystu lehitymnykh ochikuvan v pravi YeS ta perspektyvy yoho vprovadzhennia v Ukraini’ [‘The Principle of Protection of Legitimate Expectations in EU Law and the Prospects for its Implementation in Ukraine’] [2013] 2(9) Pravovyi visnyk Ukrainskoi akademii bankivskoi spravy 25-30 (in Ukrainian).