When Does a Case Require a Forensic Economic Examination

A forensic economic examination is not required in every case that involves money. It is required only where the dispute, at its core, comes down to a figure and a calculation that cannot be verified without specialised knowledge. If the outcome depends on exactly how much money moved, where it went, and on what basis, that is the working ground of an economic expert. But if the parties do not argue about the amounts and disagree only on how a legal rule should be read, no examination is needed. Below we look at the categories of proceedings where such an examination is typical, when it becomes effectively unavoidable, and when it is appointed at the discretion of a party or the court.

The key test: a dispute about the number, not about the law

The most reliable guide is this: if the parties do not agree on a sum, a calculation, a flow of funds, or a financial result, an economic examination is probably needed. If, however, they do not argue over the figures but diverge on how to interpret a rule or how to characterise conduct, that is a question of law — one for the court to decide, not for an expert.

A forensic economic examination answers questions such as:

• What amount of underpayment or damage is confirmed by the documents?
• Do the accounting records match the primary (source) documents?
• How exactly were the debt, penalty interest, or losses calculated?
• Was there a shortfall, and in what documented amount?

The expert does not establish guilt, does not classify a crime, and does not interpret a contract. The expert studies the documents of accounting and tax records, financial statements and business activity, and gives a reasoned conclusion about the figures. This principle follows from the Law of Ukraine “On Forensic Expert Examination” and from the Instruction on the Appointment and Conduct of Forensic Examinations and Expert Studies, approved by Order No. 53/5 of the Ministry of Justice of Ukraine (Minyust).

Criminal proceedings

This is the most fertile category. Here the examination often becomes the pivotal piece of evidence, because it is precisely what converts an abstract “damage was caused” into a concrete, documented amount.

Misappropriation, embezzlement, taking of property (Article 191 of the KK)

A classic request under the Criminal Code of Ukraine (KK): is a shortfall of funds or property confirmed, in what amount, over what period, and on the basis of which documents? The expert reconciles the primary documents, the accounting data, and the balances and movement of assets. Without such a calculation, any claim about the size of the loss rests on assumptions alone.

Tax evasion (Article 212 of the KK)

Here an examination is needed almost every time the amount of allegedly unpaid tax is itself in dispute. The forensic economic expert examines whether the object of taxation was determined correctly, whether the declarations agree with the primary documents, and what tax liability is actually confirmed. One caveat: whether the conduct amounts to a crime is for the investigation and the court; the expert only establishes the figure and its documentary basis.

Fraud, driving a business into bankruptcy, official crimes

• Fraud (Article 190 of the KK) — when the amount taken and the real movement of money through a scheme must be confirmed.
• Driving a business into bankruptcy — analysis of the company’s financial condition, the causes of insolvency, and signs of asset stripping.
• Official crimes (abuse of office, forgery in office) — when the damage from an official’s actions has a monetary dimension that must be calculated.

In such proceedings the examination is commissioned by investigators and detectives — in particular the Bureau of Economic Security (BEB), the National Police, and, for certain offences, detectives of the National Anti-Corruption Bureau (NABU). The materials for the calculations are often assembled with input from the State Tax Service (DPS) and the State Financial Monitoring Service (Derzhfinmonitoring).

Commercial disputes

In commercial proceedings (governed by the Commercial Procedure Code, HPK), an economic examination is appointed when a business conflict turns on a calculation. Typical situations:

• Recovery of losses and debts — confirming the size of actual losses, lost profit, or contractual indebtedness.
• Settlements under contracts — checking the accuracy of charges, set-offs, penalty interest, contractual penalties, and exchange-rate differences.
• Corporate conflicts — examining a participant’s share, the justification for dividend payments, and the movement of funds between related parties.

Here the examination is often decisive: the court may accept a party’s legal position, but without a confirmed sum it has nothing to award.

Civil cases

In civil proceedings (governed by the Civil Procedure Code, TsPK), an economic examination helps individuals and families in disputes that likewise come down to a number:

• Division of marital property — determining the value of assets, shares, jointly acquired funds, and the origin and movement of money.
• Credit disputes — verifying the calculation of interest, principal, penalties and fees, and whether the bank’s figures match the terms of the contract.
• Debt recovery — documentary confirmation of the amount of debt and the period in which it arose.

It is precisely in credit disputes that an incorrect calculation method often changes the final sum substantially — and this becomes apparent only through a professional recalculation.

Administrative disputes: challenging tax assessment notices

In administrative justice (governed by the Code of Administrative Procedure, KAS), the most typical category is challenging a tax assessment notice (podatkove povidomlennia-rishennia, PPR). When a taxpayer disagrees with additional charges set out in an audit report, an examination allows an independent check of:

• whether the controlling authority’s conclusions rest on primary documents;
• whether the tax base and the amount of liability were determined correctly under the rules of the Tax Code;
• whether there are arithmetical or methodological errors in the auditors’ calculations.

Such a conclusion becomes weighty evidence on the taxpayer’s side — provided the dispute really is about the number, not merely about how a rule should be read.

When an examination is mandatory, and when it is discretionary

It is important to distinguish two different situations.

Mandatory appointment. Article 242 of the Criminal Procedure Code of Ukraine (KPK) sets out the grounds for conducting an examination and lists the cases in which it is mandatory. For the most part, that list concerns circumstances that cannot be established without specialised knowledge and that are not purely economic. A forensic economic examination therefore rarely falls among those expressly listed as “mandatory”.

At the discretion of a party or the court. In commercial, civil and administrative cases, as well as in criminal proceedings, an economic examination is usually appointed on a party’s motion or by a court ruling — when the participants conclude that the figure cannot be established without specialised knowledge. In practice, however, if the size of the damage or of the tax liability is an element of the offence and cannot be determined by any other means, the prosecution does not hold together without an expert calculation — so the examination becomes effectively necessary. A party may move for the appointment of a forensic examination or commission an expert’s conclusion independently.

Type of case	Procedure	Typical questions for the expert
Misappropriation, embezzlement (Art. 191 KK)	Criminal (KPK)	Size and documentary proof of the shortfall
Tax evasion (Art. 212 KK)	Criminal (KPK)	Amount by which the tax liability was understated
Recovery of losses, debts	Commercial (HPK)	Size of losses, indebtedness, penalty interest
Division of property, credit disputes	Civil (TsPK)	Value of assets, accuracy of charges
Challenging a PPR	Administrative (KAS)	Justification of the additional charges in the report

A common mistake: legal questions instead of economic ones

The most frequent error in rulings and motions is trying to put a legal question to the expert. For example:

• “Is the person guilty of taking the funds?”
• “Do the actions constitute a crime?”
• “Was the refusal of the tax credit lawful?”
• “Who is obliged to return the money?”

These are questions of legal characterisation and the application of law — they belong exclusively to the court and the investigation. An expert who answers them steps outside the scope of their competence, and such a conclusion is easily challenged.

A properly framed question is always about a figure, a document, and a calculation — never about guilt or lawfulness. Compare:

• Incorrect: “Did the taxpayer evade paying taxes?”
• Correct: “What amount of VAT liability for such-and-such a period is confirmed by the primary documents?”

Whether the conclusion will be admissible evidence at all depends directly on how precisely the question is framed.

How to tell whether you actually need an examination

A quick check worth running before you seek an expert:

1. Is there a dispute about the amount? If the parties diverge on a figure, that is an argument in favour of an examination.
2. Does the figure depend on accounting documents? If so, this is precisely an economic examination and not another kind.
3. Can the question be framed without the words “guilty”, “lawful”, or “obliged”? If so, it lies within the expert’s competence.
4. Are there enough documents? A conclusion is only as reliable as the primary documents, accounting registers and statements are complete. Where documents are lacking, the limits of the study should be discussed in advance.

If the answer to the first three points is “yes”, an economic examination will probably help your case. It is worth gathering the materials in advance — audit reports, contracts, bank statements, accounting data — as this saves time and improves the quality of the conclusion.

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If you are unsure whether your case needs a forensic economic examination, and how to frame the questions for the expert correctly, you are welcome to book a consultation. Together we will determine whether the dispute really does come down to a number, and how to structure the study so that the conclusion becomes convincing evidence in court.