A Ukrainian airline leasing an aircraft from a foreign owner is a common practice used by almost all carriers in the country. However, since 2024, the Bureau of Economic Security decided that this is not a lease, but the use of equipment for which royalties must be paid. The result is criminal proceedings against at least five airlines and the question of whether a law enforcement body can effectively rewrite tax legislation through its interpretation.
Cases Against Half the Industry
According to the investigation's version, Ukrainian airlines were supposed to pay royalties for leasing aircraft and helicopters from non-residents. On this basis, the BES opened criminal proceedings against Ukraine International Airlines, Konstantin Airlines, Rozy Vitriv, H3Operations, and Skyline Express. According to UNN information, the Urga airline may also be involved in a similar context.
Notably, the proceedings appeared despite the fact that almost all these companies successfully passed tax audits — tax authorities' claims regarding leasing concerned only one of them. Industry representatives speak of ambiguous interpretation of norms and the lack of a unified state approach.
The stakes are not abstract. According to the State Register of Civil Aircraft of Ukraine, 86% of the aircraft fleet of Ukrainian companies is leased. The Ministry of Finance, in response to UNN's inquiry, emphasized: the Tax Code does not provide for taxing aircraft leasing as royalties, and the BES approach without changing the legislation could strike the entire passenger and freight transportation industry.
The issue has already reached the tax committee of the Public Council under the Ministry of Finance — they decided to create a working group to prepare a comprehensive tax consultation on taxing lease payments to non-residents.
The Position of the Investigation Is Not the Norm of Law
Lawyer Rostyslav Kravets explained in a comment to UNN: the BES, as a law enforcement body, has the right to form its own legal assessment of companies' actions and use it to substantiate suspicions. However, this right is not identical to the authority to establish taxation rules.
The BES, as a law enforcement body, cannot change the law or establish new taxation rules through its conclusion. The ultimate interpretation of the law is carried out by the court. Therefore, the court is not obliged to agree with the legal assessment provided by the BES.
Kravets adds: the Bureau's own interpretation of the law may be sufficient for procedural actions—opening a case, searches, notices of suspicion. However, this does not mean the automatic correctness of conclusions from a legal standpoint. In addition, all procedural documents of the investigation must be agreed upon by the prosecutor, who will subsequently represent the prosecution in court.
Making a conclusion about how lease payments should be taxed solely on the basis of the BES position is, in the lawyer's view, incorrect. The fact that a law enforcement body interprets a norm in a certain way does not mean that this interpretation automatically applies to the entire business.
Who Makes the Final Decision
If the cases reach trial on the merits, the court will consider the arguments of both parties, judicial practice, and scientific conclusions—but will not be bound by the BES position as a pre-established truth.
No conclusion of the BES is binding on the court in itself and cannot substitute for the law. The court makes the final decision on how the relevant legislation should be applied in a specific case.
The right to investigate possible tax crimes is not identical to the authority to independently formulate new taxation rules—this boundary is the essence of the conflict. The question remains open: whether the working group at the Ministry of Finance will manage to develop a comprehensive consultation before courts begin to hear the cases on the merits, and whether criminal prosecution will become a tool of pressure on the industry, where almost the entire aircraft fleet is leased.
