Analytical reports from the Bureau of Economic Security can be grounds for initiating a pretrial investigation, but by themselves they are not evidence of a crime. The issue is not the existence of such a mechanism, but rather the fact that in practice it is used to pressure business — this is the opinion expressed in a comment to UNN by lawyer Oleg Shram.
Grounds — not evidence
The idea of creating an analytical division of the BES provided that its employees would analyze information and identify signs of economic crimes with access to state databases. However, according to Shram, it is fundamentally important to distinguish between grounds for initiating an investigation and proof of guilt.
An analytical product in itself is not and cannot be evidence of anything. That is, it is only grounds for initiating criminal proceedings
The greatest risks, the lawyer believes, arise not from the legislative model itself, but from abuse in its application.
The question is how it is used and how legally they do it. There are many questions about what they write in the report that they need, or how objective these reports are and whether this is used as grounds
Shram's key question concerns the good faith of the BES itself.
I have a question for the BES about whether they are using the powers given to them in good faith, honestly, conscientiously and in accordance with the purpose and objectives that were established as an idea. Whether there are elements of abuse in this case, use of this mechanism to groundlessly initiate criminal proceedings, initiate interference in legitimate business activities or pursue some other purpose
Any legal provision, emphasizes the lawyer, can be written correctly, but applied to achieve an unlawful purpose or cover up illegal activity — therefore it is important to distinguish between the legality of the idea and the legality of its implementation.
Conclusions "Carbon copy" against five airlines
An example of criminal prosecution based on analytical reports is a number of Ukrainian airlines. The BES is investigating cases against at least five carriers — MAU, "Aviacompany Konstanta", "Urga", N3Operations and "Skyline" — allegedly for non-payment of an additional 15% tax on non-resident income under aircraft and helicopter leasing agreements. Investigators equate lease payments to royalties and interpret aircraft not as vehicles but as "equipment".
Law enforcement received analytical conclusions after the previous STS team published an article in 2024 proposing to tax leasing operations with non-resident transport as royalties. Documents similar to each other, as if written "carbon copy", formed the basis of criminal cases against airlines.
Lawyers interviewed by UNN point out that investigators ignore existing international conventions on avoiding double taxation. Treaties ratified by the Verkhovna Rada take precedence over national legislation and determine in which state and at what rate a non-resident's income is taxed. Automatic recalculation of 15% in Ukraine without considering the provisions of a specific convention is at least a questionable decision.
Ukrainian tax law regarding leasing taxation has not changed for decades. According to the STS, airlines underwent tax audits, and only as a result of one of them were violations in lease taxation found — the rest of the audits revealed no violations.
As a result of one audit of aviation industry companies, lease payments were reclassified as royalties. Only one audit
— said Victoria Kasyan, Deputy Director of the Transfer Pricing Department of the State Tax Service of Ukraine.
The absence of systemic violations did not prevent the BES from opening criminal cases, believing that airlines did not pay 15% royalties over the past seven years. Aircraft leasing is used by approximately 40 carriers, so the list of companies under claims could expand at any moment — the entire civil aviation industry is at risk.
Representatives of the aviation industry have already publicly stated pressure from the BES and warned that criminal proceedings and attempts to recalculate taxes for seven years could finally ruin companies that survived airspace closure and relocation due to the full-scale war.
Formally, an analytical report is legitimate grounds for investigation, but not proof of guilt or a substitute for a full investigation. The problem arises when identical conclusions become the basis for criminal prosecution of business despite the absence of established tax practice, results of STS audits and provisions of international conventions. The question remains open: is the BES ready to reconsider the practice of using analytical reports before the rest of the country's airlines come under investigation?
