Notice of significant changes in property status: problems of practical application

The introduction of the electronic declaration system, the obligation to report significant changes in the property status and the responsibility for violating this duty, are intended to become one of the effective tools for the struggle with corruption in Ukraine. Experience has proven that the violation of the legislation in the part of notification of significant changes in the property status is often not related to the desire of the subjects of the declaration to avoid the disclosure of wealth, but to the imperfection of legal regulation and lack of awareness of the obligated persons on the order of such notice. We are going to consider an example of a notice of significant changes in the property status that has turned up due to the payment of wages. Thus, Part 2 of Article 52 of the Law of Ukraine “On Prevention of Corruption” established that in the event of a significant change in the property status of the subject of the declaration, namely receipt of income, the acquisition of property for an amount exceeding 50 minimum levels of subsistence established for able-bodied persons on January 1 of the respective year, the indicated subject must notify the National Agency in writing within ten days from the date of receipt of income or acquisition of property. The first problem faced by the subjects of declaration is the legislative uncertainty of the concept of “income” for the purposes of the application of Part 2 of Article 52 of the Law of Ukraine “On Prevention of Corruption”. At the legislative level, it is not determined whether wage information should be provided if the received wage amounts to less than 50 minimum levels of subsistence, but after adding all taxes and fees retained by the employer as a tax agent, this sum is more than 50 minimum levels of subsistence. In the Law of Ukraine “On Prevention of Corruption”, the legislator uses the term “income received” in the articles that regulate the procedure for notification of significant changes in the property status of the subject of declaration. In the decision of the National Agency for Prevention of Corruption of June 10, 2016, No. 3, which approved the Form for notification of significant changes in the property status of the entity, the explanation is provided that the income accrued but not paid (not received) is not reported. Based on it, the subjects of declaration often conclude that reporting significant changes in the property status is necessary only when the actual amount of salary received exceeds 50 subsistence minimums, without taking into account the deductible taxes and other mandatory payments.

However, in compliance with the provisions of Article 52 of the Law of Ukraine “On the Prevention of Corruption”, the National Agency for Prevention of Corruption proceeds from the fact that the receipt of income is the total amount of accrued wages including the pre-deductible taxes and fees that have not been actually received by the entity of declaration. The disadvantage of such an approach to defining the notion of a significant change in the property status is that the subject of the declaration may not even know about the sum of wage deductions at the time of receipt. Taking into consideration this fact, a special attention shall be paid at the fact that when a court decides on the existence of an administrative corruption offense in individual’s actions, inter alia, one must take into account the subjective part of the offense. In accordance with Part 1 Article 1 of the Law of Ukraine “On the Prevention of Corruption” the definition of the term corruption offense is always characterized by an intentional form of guilty. In particular, corruption offenses prescribed in Part 2 of Art. 172-6 of the Code of Ukraine on Administrative Offences, can be committed intentionally only.