Commentary to article 287. Non-fulfillment of obligations established by the tax legislation of the Republic of Kazakhstan by taxpayers during the export and import of goods, performance of works, provision of services in the Eurasian Economic Union, as well as non-fulfillment by persons of the requirements established by the legislation of the Republic of Kazakhstan The Code of the Republic of Kazakhstan on Administrative Offences
1. Non-payment, incomplete payment or late payment of indirect taxes within the time period established by the tax legislation of the Republic of Kazakhstan, -
They impose a fine on individuals in the amount of ten, on small businesses or non-profit organizations - in the amount of thirty, on medium-sized businesses - in the amount of forty, on large businesses - in the amount of fifty monthly calculation indices.
2. Failure by a taxpayer to submit obligations on import (export) of processed products to the state revenue authority and their non-fulfillment provided for by the tax legislation of the Republic of Kazakhstan, -
They impose a fine on individuals in the amount of ten, on small businesses or non-profit organizations - in the amount of twenty, on medium-sized businesses - in the amount of thirty, on large businesses - in the amount of fifty monthly calculation indices.
3. Failure to notify or untimely notification of the state revenue authorities in the following cases:
1) in case of temporary importation of goods into the territory of the Republic of Kazakhstan from the territory of the member states of the Eurasian Economic Union, which will subsequently be exported from the territory of the Republic of Kazakhstan without changing the properties and characteristics of the imported goods;
2) in case of temporary export of goods from the territory of the Republic of Kazakhstan to the territory of the member states of the Eurasian Economic Union, which will subsequently be imported into the territory of the Republic of Kazakhstan without changing the properties and characteristics of the exported goods, -
entails a fine for individuals in the amount of ten, for small businesses or non-profit organizations - in the amount of twenty, for medium-sized businesses - in the amount of thirty, for large businesses - in the amount of fifty monthly calculation indices.
4. Violation of the deadlines established by the tax legislation of the Republic of Kazakhstan for processing toll-free raw materials exported from the territory of the Republic of Kazakhstan to the territory of a member state of the Eurasian Economic Union, as well as imported into the territory of the Republic of Kazakhstan from the territory of a member state of the Eurasian Economic Union, -
entails a fine on small businesses in the amount of ten, on medium-sized businesses - in the amount of twenty, on large businesses - in the amount of thirty percent of the amount of accrued taxes.
5. Failure to notify or untimely notification by the organizer of the exhibition and fair trade about the conduct of such trade -
entails a fine for small businesses in the amount of ten, for medium-sized businesses in the amount of twenty, for large businesses in the amount of fifty monthly calculation indices.
6. Violation by the organizer of the order of organization of exhibition and fair trade -
entails a fine for small businesses in the amount of ten, for medium-sized businesses in the amount of twenty, for large businesses in the amount of fifty monthly calculation indices.
7. Excluded by the Law of the Republic of Kazakhstan dated December 28, 2017 No. 127-VI.
Note. For the purposes of part one of this Article, if a person is subject to administrative liability for failure to register goods imported into the territory of the Republic of Kazakhstan from the territory of the member States of the Eurasian Economic Union provided for in Article 275 of this Code, such person shall not be subject to administrative liability provided for in part one of this Article.
The commented article provides for administrative liability for non-fulfillment by taxpayers of the obligations established by the tax legislation of the Republic of Kazakhstan when exporting and importing goods, performing works, providing services in the EAEU, as well as for non-fulfillment by other persons of the requirements established by the legislation of the Republic of Kazakhstan.
In this case, the title of the article is essential in qualifying the unlawful acts provided for in the commented article as offenses. Such acts are limited only to cases where taxpayers fail to fulfill their obligations when exporting and/or importing goods, performing work and providing services to the EAEU or when crossing internal borders between the EAEU member States.
The generic object of offenses provided for in Article 287 of the Administrative Code is the procedure for taxation and tax administration of tax relations established in the legislative acts of the Republic of Kazakhstan and protected by the state.
The direct object of administrative offenses provided for in the commented article is the procedure established by the tax legislation of the Republic of Kazakhstan and protected by the state for taxpayers and other obligated persons to execute when exporting and (or) importing goods, performing work and providing services within the framework of the EEA or when crossing internal borders between the EAEU member States.
The administrative offences provided for in Article 287 of the Administrative Code (with the exception of the offence provided for in Part 4 of Article 287 of the Administrative Code) are formal. To bring them to administrative responsibility, it is not necessary to establish that the offender has caused material harm to the state in the form of unpaid taxes. The harm to the state from committing the offenses provided for in the commented article consists in violating the procedure established by law for taxpayers and other obligated persons to fulfill their obligations to the state under the tax legislation of the Republic of Kazakhstan for the movement of goods (works, services) within the EAEU or between the EAEU countries. Accordingly, the penalty for these types of administrative offenses cannot be made dependent on the amount of an unfulfilled tax obligation (material damage caused to the state in the form of unpaid taxes) and is fixed.
The subjects of offenses provided for in Article 287 of the Administrative Code, at the direct instruction of the legislator in the commented article, are taxpayers. According to subclause 57) of clause 1 of Article 1 of the Tax Code of the Republic of Kazakhstan, a taxpayer is a person and (or) a structural subdivision of a legal entity that is a payer of taxes and payments to the budget. Accordingly, other participants in tax legal relations (tax collectors, payment operators, tax agents, tax representatives) will not be subjects of administrative offenses provided for in art. 287 of the Administrative Code, and should not be held administratively liable under it.
287 of the Administrative Code establishes the administrative liability of taxpayers for non-payment, incomplete or late payment of indirect taxes within the time period established by the tax legislation of the Republic of Kazakhstan.
In the context of Part 1 of Article 287 of the Administrative Code, for the purposes of applying international treaties, indirect taxes, according to paragraph 2 of Article 189 of the Tax Code of the Republic of Kazakhstan, are recognized as value added tax and excise taxes.
The norm of Part 1 of Article 287 of the Administrative Code covers non-payment or late or incomplete payment of indirect taxes by taxpayers only when exporting or importing goods across the border of the Republic of Kazakhstan within the territory of the EAEU. Accordingly, the commented norm does not apply to offenses related to non-payment, late or incomplete payment of VAT and/or excise taxes on the territory of the Republic of Kazakhstan or when exporting goods outside the EAEU or when importing goods to the Republic of Kazakhstan from non-EAEU member countries. These offences are covered by the structures provided for, respectively, in Part 1 of art. 278 of the Administrative Code and Articles 551, 555 of the Administrative Code.
According to a special note to the commented article, if a person is subject to administrative liability under Article 275 of the Administrative Code for failure to register goods imported into the territory of the Republic of Kazakhstan from the territory of the EAEU member States as for concealing taxable objects, then this person is not subject to administrative liability under Part 1 of the commented article.
For committing an administrative offense under Part 1 of Article 287 of the Administrative Code, offenders are subject to administrative punishment in the form of a fine.
The amount of the fine is differentiated for different categories of offenders depending on their status and legal status and amounts to:
1) for individuals – 10 MCI,
2) for small businesses or non–profit organizations - 30 MCI,
3) for medium–sized businesses - 40 MCI,
4) for large business entities – 50 MCI.
In this regard, before bringing an offender to administrative responsibility under Part 1 of Article 287 of the Administrative Code, it is necessary to establish in what capacity he committed the offense (as an individual, entrepreneur or non-profit organization), and if the offense was committed by him as an entrepreneur, which category of entrepreneurs he belongs to (small, medium or large entities entrepreneurship).
The amounts of fines are fixed and are not subject to change by the body imposing them.
A fine is imposed by the state revenue authorities or the court if the case of an administrative offense is being considered in court.
Part 2 of the commented article establishes administrative liability for failure by a taxpayer to submit to the state revenue authority and (or) failure by him to fulfill obligations stipulated by the tax legislation of the Republic of Kazakhstan on the import (export) of processed products.
The taxpayer's obligation to provide and subsequently fulfill obligations on the import (export) of processed products is established in the tax legislation of the Republic of Kazakhstan.
At the request of the norm of clause 3 of Article 465 of the Tax Code of the Republic of Kazakhstan, in the case of import (export) of toll raw materials for processing, the taxpayer of the Republic of Kazakhstan is obliged to submit to the state revenue authority an obligation to export (import) processed products, as well as to fulfill it in accordance with the procedure and deadlines established by the authorized body.
The procedure, form and deadlines for the submission and fulfillment by taxpayers of obligations on the export (import) of processed products are contained in the rules approved by the Order of the Minister of Finance of the Republic of Kazakhstan dated February 23, 2018 No. 263.
Failure by a taxpayer to fulfill this obligation entails the imposition of an administrative penalty in the form of a fine.
The amount of the fine for the commission of the offence provided for in the commented norm is differentiated depending on the category of taxpayer specified in the sanction.
For individuals, the fine is 10 MCI. For small businesses or non–profit organizations - 20 MCI. For medium–sized businesses - 30 MCI. For large business entities – 50 MCI.
In this regard, before bringing an offender to administrative responsibility under Part 2 of Article 287 of the Administrative Code, it is necessary to establish in what capacity he committed the offense (as an individual, entrepreneur or non-profit organization), and if the offense was committed by him as an entrepreneur, which category of entrepreneurs he belongs to (small, medium or large entities entrepreneurship).
The amounts of fines are fixed and are not subject to change by the body imposing them.
A fine is imposed by the state revenue authorities or the court if the case of an administrative offense is being considered in court.
Part 3 of the commented article establishes responsibility for failure to notify or untimely notification of state revenue authorities during the temporary import (export) of goods into (from) the territory of the Republic of Kazakhstan from the territory (to the territory) of the EAEU member states, which will subsequently be exported (imported) from the territory (to the territory) of the Republic of Kazakhstan without changing the properties and characteristics of the imported (exported) goods.
The commission of the specified offense entails the application to the offender of an administrative penalty in the form of a fine in the following amounts:
- for individuals – 10 MCI,
- for small businesses or non–profit organizations - 20 MCI,
- for medium–sized businesses - 30 MCI,
- for large business entities – 50 MCI.
The amount of the fine is fixed for each of the categories of subjects of responsibility specified in the sanction of the article and is not subject to change by the body imposing them.
A fine is imposed by the state revenue authorities or the court if the case of an administrative offense is being considered in court.
Part 4 of the commented article establishes administrative liability for violation of the deadlines established by the tax legislation of the Republic of Kazakhstan for processing toll-free raw materials exported from the territory of the Republic of Kazakhstan to the territory of the EAEU member State, as well as imported into the territory of the Republic of Kazakhstan from the territory of the EAEU member State.
The composition of the offense provided for in Part 4 of the commented article is material. To bring to administrative responsibility under Part 4 of Article 287 of the Administrative Code, it is necessary to establish the fact that the offender caused material harm to the state in the form of unpaid taxes. Accordingly, the fine is calculated based on the amount of taxes accrued to the offender.
The amount of the fine for committing the offense provided for in the commented norm is differentiated and depends on the taxpayer category specified in the sanction of Part 4 of Article 287 of the Administrative Code.
For small businesses, the fine is 10% of the amount of accrued taxes. For medium–sized businesses - 20% of the amount of accrued taxes. For large business entities – 30% of the amount of accrued taxes.
In this regard, before bringing an offender to administrative responsibility under Part 4 of Article 287 of the Administrative Code, it is necessary to establish which category of entrepreneurs he belongs to (small, medium or large businesses).
A fine is imposed by the state revenue authorities or the court if the case of an administrative offense is being considered in court.
Part 5 of the commented article establishes the administrative responsibility of the organizer of the exhibition and fair trade for failure to notify or untimely notification of such trade.
At the request of paragraph 4 of Article 454 of the Tax Code of the Republic of Kazakhstan, a taxpayer of the Republic of Kazakhstan organizing an exhibition and fair trade is obliged to notify in writing the tax authority at its location ten working days before the start of its holding, with a list of trade participants from the EAEU member States attached.
Failure by the organizer of the exhibition and fair trade to fulfill this obligation or its untimely fulfillment entails the application of an administrative penalty in the form of a fine in the following amounts:
- for small businesses – 10 MCI,
- for medium–sized businesses - 20 MCI,
- for large business entities – 50 MCI.
The amount of the fine is fixed for each of the categories of subjects of responsibility specified in the sanction of the article and is not subject to change by the body imposing them.
A fine is imposed by the state revenue authorities or the court if the case of an administrative offense is being considered in court.
287 of the Administrative Code establishes the administrative responsibility of the organizer of the exhibition and fair trade for violating the order of organization of the exhibition and fair trade.
The procedure for organizing exhibition and fair trade for tax purposes is established by the legislator in Article 454 of the Tax Code of the Republic of Kazakhstan and by the authorized body in the Rules for Monitoring VAT Payments on Exhibition and Fair Trade, approved by Order of the Minister of Finance of the Republic of Kazakhstan dated February 13, 2018 No. 174.
Violation by the organizer of the exhibition and fair trade of the order of organization of the exhibition and fair trade in terms of the mandatory requirements established by the tax legislation of the Republic of Kazakhstan to the organizer for tax purposes entails the application of administrative penalties in the form of a fine in the following amounts:
- for small businesses – 10 MCI,
- for medium–sized businesses - 20 MCI,
- for large business entities – 50 MCI.
The amount of the fine is fixed for each of the categories of subjects of responsibility specified in the sanction of the article and is not subject to change by the body imposing them.
A fine is imposed by the state revenue authorities or the court if the case of an administrative offense is being considered in court.
Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:
Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);
Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;
Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);
Karpekin Alexander Vladimirovich, Candidate of Law, Associate Professor – chapter 13 (in collaboration with Zhusipbekova A.M.);
Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;
Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;
Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;
Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);
Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);
Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;
Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;
Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);
Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;
Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;
Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);
Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;
Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.
Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).
Date of amendment of the act: 01.01.2020 Date of adoption of the act: 01.01.2020 Place of acceptance: 100050000000 Authority that adopted the act: 103001000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 5 Status of the act: new Sphere of legal relations: 029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act: COMM / CODE Legal force: 1900 Language of the Act: rus
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