The Supreme Court expressed its position on the legal nature of penalties for violation of payment terms in the field of foreign economic activity as a creditor's claim in bankruptcy proceedings

By the ruling of the Commercial Court of Vinnytsia Region dated 15.10.2025 in case No. 902/158/24, the application of the Main Department of the State Tax Service in Vinnytsia Region dated 15.09.2025 for recognition of current creditor claims against the debtor in the amount of UAH 1,204,061,874.95 as penalties was denied.

By the decision of the Northwestern Appellate Commercial Court dated 13.01.2026, the ruling of the Commercial Court of Vinnytsia Region dated 15.10.2025 in case No. 902/158/24 was canceled and a new decision was made, which satisfied the application of the Main Department of the State Tax Service in Vinnytsia Region dated 15.09.2025 for recognition of current creditor claims against the debtor. The current creditor claims of the Main Department of the State Tax Service in Vinnytsia Region against the debtor Limited Liability Company were recognized in the amount of UAH 1,204,061,874.95 as penalties (sixth priority of satisfaction of creditor claims), UAH 6,056 for court fee expenses for submitting the application for recognition of creditor claims (first priority of satisfaction of creditor claims), and UAH 7,267.20 for court fee expenses for submitting the appeal (first priority of satisfaction of creditor claims).

The appellate court concluded that, in violation of part five of Article 41 of the Bankruptcy Procedure Code of Ukraine, the court of first instance applied a moratorium on the claims of the Main Department of the State Tax Service in Vinnytsia Region, which led to the erroneous rejection of the monetary claims of the Main Department of the State Tax Service in Vinnytsia Region.

This decision of the appellate commercial court was motivated by the fact that in this case, the creditor's claims consist of penalties for violation of payment terms in the field of foreign economic activity based on tax notification-decision No. 0415550706 dated 20.12.2024 in the amount of UAH 1,204,061,874.95, the claims for payment of which arose from 28.02.2024 to 30.09.2024, i.e., after the opening of bankruptcy proceedings. The accrual of penalties did not fall under the liquidation procedure, the calculation of penalties is arithmetically correct, therefore such claims are current, and the provisions of Article 41 of the Bankruptcy Procedure Code regarding the moratorium on penalty accrual cannot be applied to them, since such claims are not penalties accrued on the "principal" claim, but this penalty itself is the principal claim.

The Supreme Court, among other things, indicated that the obligation to conduct a legal analysis of the creditor claims submitted in the case, the grounds for the emergence of monetary claims of creditors against the debtor, their nature, determination of the amount and the moment of occurrence of these monetary claims lies with the commercial court handling the bankruptcy case (decisions dated: 26.02.2019 in case No. 908/710/18, 05.03.2019 in case No. 910/3353/16, 18.04.2019 in case No. 914/1126/14, 20.06.2019 in case No. 915/535/17, 25.06.2019 in case No. 922/116/18, 15.10.2019 in case No. 908/2189/17, 24.10.2019 in case No. 910/10542/18, 07.11.2019 in case No. 904/9024/16).

The use of a formal approach when considering an application with creditor claims and recognizing creditor claims without providing a legal analysis of the submitted application with creditor claims, the grounds for the emergence of monetary claims of creditors against the debtor, their nature, determination of the amount and the moment of occurrence of these monetary claims creates a risk of the court recognizing fictitious creditor debt against the debtor in bankruptcy proceedings. This violates the rights of creditors with justified monetary claims in bankruptcy proceedings.

The Supreme Court noted that by considering the penalty as a principal claim, the appellate commercial court included the recognized amount of the penalty in the sixth priority of satisfaction of creditor claims, although claims for payment of taxes and fees (mandatory payments) are subject to inclusion in the third priority.

The cassation court stated that a penalty (fine, penalty interest), according to Article 549 of the Civil Code of Ukraine, is a monetary amount or other property that the debtor must transfer to the creditor in case of breach of the debtor's obligation; a fine is a penalty calculated as a percentage of the amount of the unfulfilled or improperly fulfilled obligation; a penalty interest is a penalty calculated as a percentage of the amount of the untimely fulfilled monetary obligation for each day of delay.

Thus, a penalty interest is a derivative claim from the claim for recovery of the principal debt.

As can be seen from the content of the Supreme Court ruling dated 08.06.2023 in case No. 902/1169/21, the cassation court examined the issue regarding the type of penalty sanctions for violation of payment terms in the field of foreign economic activity and concluded that penalty interest is a penalty within the meaning of part 3 of Article 549 of the Civil Code of Ukraine.

However, the appellate court did not take into account the above conclusion set out in the Supreme Court ruling dated 08.06.2023 in case No. 902/1169/21, according to which the penalty for violation of payment terms in the field of foreign economic activity is a type of penalty sanction, mistakenly stating in the contested ruling that such penalty is a "principal claim."

Therefore, the conclusion of the appellate court about the existence of legal grounds for recognition and inclusion in the register of creditor claims of UAH 1,204,061,874.95 as penalties for violation of payment terms in the field of foreign economic activity is premature.

This conclusion was reached by the Supreme Court composed of the panel of judges of the Cassation Commercial Court in the ruling dated 20.05.2026 in case No. 902/158/24, which canceled the decision of the Northwestern Appellate Commercial Court dated 13.01.2026 and sent the case back to the appellate court for a new hearing.

The full text of the Supreme Court ruling composed of judges of the Cassation Commercial Court dated 20.05.2026 in case No. 902/158/24 can be found at this link.

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