Концепція вини в податковому правопорушенні через призму судової практики Канади

Tymchenko L. D., Selezen P. O. CONCEPT OF MENS REA IN TAX OFFENCES THROUGH THE PRISM OF COURT PRACTICE IN CANADA Successful and long experience of counteracting tax offences in Canada determines the need of its generalization and characterization with the purpose of best practices’ implementation into the reality of Ukraine. The Tax Code of Ukraine has included the criterion of mens rea in the definition of tax offence starting from 01.01.2021 so there is no stable and long practice of application of the referred concept in disputes between the Ukrainian tax authorities and taxpayers that might have negative impact on guaranteeing balance between public and private interests in the area of taxation. Taking into consideration the existing circumstances, it is highly recommended to implement best practices of foreign states in interpretation and application of the concept of mens rea in tax offences but with the due respect to legal traditions and features of the Ukrainian legal order. The three court cases are in the focus of the article: 1) R. v. Porisky, 2019 BCCA 159, 30.04.2019; 2) R. v. Patry, 2018 BCSC 1524, 17.08.2018; 3) R. v. Klundert, 242 D.L.R. (4th) 644, 18.02.2004. Following the position of the domestic courts in Canada, the special interest is determined by description of two key elements for identification of willfulness (fault component) in the behavior of taxpayer, i.e. knowledge and purpose that are closely related to each other. A person who does not know that there is a tax imposed by the tax legislation cannot do something for the purpose of evading payment of the respective tax. At the same time, there might be situations in which the taxpayer may know about his/her legal duty to pay tax and do something that has the effect of evading the payment of that tax without necessary having done so for the purpose of evading the payment of the tax (mistaken belief). For example, a taxpayer may through arithmetic error misstate the amount of tax owing (factual errors), or a taxpayer may be unaware of the statutory definition of income (legal errors), or a taxpayer may have come to a mistaken conclusion as to the application of that definition in the existing circumstances (combination of factual and legal errors).

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