Failure to provide documents during a tax audit: new Supreme Court position

During a tax audit, the tax authority may request primary, accounting and other documents related to the subject of the audit. If the taxpayer does not provide them, the State Tax Service (STS) often relies on paragraph 44.6 of the Tax Code of Ukraine and concludes that the documents did not exist when the tax returns were prepared.

However, a mere statement in the audit report that “documents were not provided” is not enough.

In its ruling of 8 October 2026 in case No. 380/28828/23, the Administrative Cassation Court within the Supreme Court confirmed that the tax authority must properly record which documents it requested, what exactly it received and which documents the taxpayer refused to provide.

If the STS did not draw up the refusal report and list of received documents required by law, a court may find its reliance on paragraph 44.6 of the Tax Code unfounded.

Below we explain what the Supreme Court decided, how the handover of documents should be recorded and what businesses should do during an audit.

The problem

Following an audit, the tax authority may write in its report:

“The taxpayer has not provided documents confirming the declared figures.”

The STS then applies paragraph 44.6 of the Tax Code and treats the documents as not having existed when the returns were prepared.

The consequences may include:

• disallowance of expenses;
• exclusion of amounts from input VAT;
• additional tax assessments;
• penalties;
• late-payment interest;
• a separate fine for failing to provide documents.

In practice the dispute usually looks like this: the taxpayer says the documents were handed over, the STS says it did not receive them, and there is neither a proper list of the documents handed over nor a separate refusal report.

This was one of the main issues in case No. 380/28828/23.

What paragraph 44.6 of the Tax Code provides

Paragraph 44.6 of the Tax Code sets out a special legal consequence. If, before the audit is completed or within the time limits set by paragraph 86.7 of the Tax Code, the taxpayer does not provide documents confirming the figures in its tax reporting, those documents are deemed not to have been in the taxpayer’s possession when the reporting was prepared.

There is an exception, in particular, where documents were seized or otherwise removed by law enforcement authorities.

However, the paragraph 44.6 rule is not applied automatically to any document the STS mentions. Under the settled case law of the Supreme Court, which the ruling in case No. 380/28828/23 also cites, these consequences apply to documents that simultaneously:

• belong to or relate to the subject of the audit;
• are used to account for income, expenses and other figures;
• are directly related to determining the tax base or tax liabilities;
• must be kept by the taxpayer;
• were listed in a properly drawn-up request from the tax authority.

So the STS must prove two things: that a document is missing and that it lawfully and specifically requested it within the subject of the audit.

Which documents a taxpayer must provide

Under paragraph 85.2 of the Tax Code, once the audit has begun, the taxpayer must provide STS officials in full with the documents that belong to or relate to its subject. For example:

• contracts and supplementary agreements;
• acts of acceptance;
• delivery notes and consignment notes;
• payment documents and bank statements;
• accounting registers;
• VAT invoices;
• documents on the use of property;
• other materials confirming the relevant transactions.

At the same time, the tax authority may not request any documents unrelated to the subject of the audit. If a specific tax, period or transaction is being audited, a request for all of the company’s documents without justification may go beyond the scope of the audit.

How the STS must record a taxpayer’s refusal

Paragraph 85.6 of the Tax Code sets out a separate procedure. If the taxpayer or its representative refuses to provide copies of documents, the STS official draws up a refusal report in free form.

The report states:

• the fact of refusal;
• details of the official or the taxpayer’s representative;
• the list of documents that were requested;
• the signatures of the inspector and the taxpayer or its representative.

If the taxpayer refuses to sign the report, the inspector makes a note to that effect.

So the law provides for a separate piece of evidence of non-provision. A general statement in the final audit report may not be enough, especially if it does not show when and which documents were requested.

How receipt of documents is recorded

The other side of the procedure is set out in paragraph 85.7 of the Tax Code: receipt of copies of documents is recorded in a list. A copy of the list is handed to the taxpayer or its representative against signature. If they refuse to certify the list or receive a copy, the STS officials make a note.

The list shows:

• which documents were handed over;
• for which period;
• for which counterparties or transactions;
• in what quantity;
• when they were received;
• who exactly received them.

Without a list, the tax authority cannot reliably prove that a particular document was not among the materials received.

What the courts established in case No. 380/28828/23

The dispute arose after an audit of a sole proprietor (FOP) engaged in road freight transport.

The tax authority claimed that the FOP had not provided documents confirming the right to use vehicles in his business, in particular vehicle lease agreements and acceptance certificates. On that basis the STS disallowed expenses and input VAT for fuel, spare parts and vehicle maintenance.

The courts found that the tax authority had drawn up neither a list of received documents under paragraph 85.7 of the Tax Code nor a report on non-provision of documents under paragraph 85.6. The STS representative confirmed this in court. The appellate court also noted that the case file contained no evidence that these documents had not been provided.

The entrepreneur, questioned by the court as a witness, confirmed that he had personally handed over all primary documents to the inspectors, including the vehicle lease agreements. He also explained that no further documents had been requested from him and that he had not signed any documents recording the handover of primary documents.

In addition, the courts established that the vehicles were actually used in the business: this was confirmed by contracts, delivery notes, acts, payment documents and other primary documents on the transport services and costs, not only by the lease agreements.

The Supreme Court’s conclusion

The Supreme Court agreed with the lower courts: the STS had not proven, in the manner required by the Tax Code, that the documents had not been provided. Consequently, the circumstance to which paragraph 44.6 of the Tax Code links the presumption that documents did not exist when the reporting was prepared had not been established. The STS’s cassation appeal was dismissed.

The Court also referred to its earlier case law. In particular, in its ruling of 25 May 2021 in case No. 815/5615/15, the Supreme Court held that the absence of a report recording a refusal to provide primary documents indicates that the audit was incomplete and biased.

The Court linked the conditions for applying paragraph 44.6 of the Tax Code to the case law set out, in particular, in its rulings:

• of 27 April 2022 in case No. 420/13197/20;
• of 22 June 2022 in case No. 826/13633/17;
• of 23 March 2023 in case No. 580/9734/21;
• of 18 April 2024 in case No. 460/16521/23.

Does this mean documents need not be provided?

No. The Supreme Court ruling does not cancel the taxpayer’s obligation to provide documents related to the subject of the audit.

The consequences of paragraph 44.6 of the Tax Code may apply if the STS:

• sent a properly drawn-up request;
• specifically listed the documents;
• recorded the refusal in a report;
• proved the link between the documents and the subject of the audit.

Relying solely on a procedural error by the tax authority is dangerous. The taxpayer must both fulfil its obligations and gather evidence that it has done so.

How to hand over documents during an audit

1. Receive requests in writing

A request should specify the documents, period, transactions and their connection to the subject of the audit. Do not hand over a large volume of documents on an inspector’s oral request alone.

2. Make your own list

Even though the list is supposed to be drawn up by STS officials, prepare your own cover letter listing all documents. State:

• the document title;
• number and date;
• number of pages;
• period;
• counterparty;
• number of copies or files.

On your copy, obtain a signature, date, incoming reference number or other confirmation of receipt.

3. Do not hand over originals without a lawful basis

The Tax Code prohibits the seizure of original primary, accounting and other documents, except in cases provided for by criminal procedure law (paragraph 85.5 of the Tax Code). Duly certified copies are normally provided for an audit.

4. Duplicate the handover

If an inspector refuses to accept or take documents into account, before the audit ends they can be sent to the tax authority by registered mail with acknowledgement of receipt and a list of contents, or submitted through the authority’s front office (paragraph 44.7 of the Tax Code).

Keep all proof of sending and receipt.

What to do if the report says documents were not provided

After receiving the audit report:

1. compare the STS findings with the inspectors’ written requests;
2. check whether there is a refusal report under paragraph 85.6 of the Tax Code;
3. check whether a list was drawn up under paragraph 85.7 of the Tax Code;
4. gather cover letters, postal lists of contents and confirmations of receipt;
5. establish whether the requested documents related to the subject of the audit;
6. file reasoned objections (within 10 business days, paragraph 86.7 of the Tax Code);
7. attach documents supporting your position to the objections;
8. insist that they be taken into account before a tax assessment notice is issued.

In the objections it is not enough to say the documents were handed over. Show the date, the method of handover and the specific list of materials.

The types of audits and what to check before admitting inspectors are covered in our article on tax audits in Ukraine in 2026, and unannounced visits in our article on on-site tax inspections. If the STS asks for documents before any audit, see our article on requests from the tax authority.

Conclusion

The ruling of the Administrative Cassation Court of 8 October 2026 in case No. 380/28828/23 confirms a simple principle: a finding that documents were not provided must rest on properly recorded facts.

If the STS did not draw up a refusal report, did not record the copies received in a list and cannot establish which documents it examined, a reference to paragraph 44.6 of the Tax Code alone does not prove that the documents did not exist.

So during an audit, a business should watch both the content of its documents and how they are handed over.

Legal framework

• Tax Code of Ukraine No. 2755-VI — paras. 44.6, 44.7 of Art. 44 (consequences of not providing documents, sending documents by post), paras. 85.2, 85.5, 85.6, 85.7 of Art. 85 (providing documents, ban on seizing originals, refusal report, list), para. 86.7 of Art. 86 (objections to the audit report)
• Supreme Court ruling of 08.10.2026 in case No. 380/28828/23 — Unified State Register of Court Decisions

ARGUS Consulting group supports clients during tax audits, analyses STS requests, organises proper handover of documents, prepares objections to audit reports and challenges tax assessment notices administratively and in court. See tax dispute support.

Legal framework as of 14.10.2026.