Illegal recognition and cancellation of notifications regarding additional payment of VAT and VAT
By the decision of the Council of Economic and Social Council of the Karaganda region dated July 17, 2020, the application of LLP "C" to the RSU "DGD for the Karaganda region" on recognition as illegal and cancellation of the notification was partially satisfied. The notification regarding the additional payment of VAT and VAT on mutual settlements between LLP "C" and LLP "T" was declared illegal and canceled. the rest of the application was denied. At the same time, the court found that, based on the decision of the investigator of the National Security Committee on the appointment of a thematic documentary tax audit of the activities of LLP "S", the Department conducted a tax audit, according to the results of which the taxpayer was notified in the total amount of 251,701,184 tenge. The additional charge was made in connection with the non-confirmation of the purchase of goods, works and services, including on turnover with T LLP. It was also established that the chief specialist of the Department, S. I conducted an audit only on the basis of logs and registers, transcripts to them, explanations on income and other expenses, which were verbally requested from the accountant of LLP V. in order to prepare for a tax audit.
Illegal recognition and cancellation of notifications regarding additional payment of VAT and VAT
At the hearing, specialist S. confirmed that she had not visited the inspection facility, had not examined the primary accounting documents, and had not made requests to law enforcement agencies for accounting documents. Following the consideration of the case, the court of first instance concluded that there had been a violation of the norms of the Business Code governing the conduct of an audit with a mandatory visit to the audited entity at its location. Moreover, all the primary documents on settlements with counterparties, for which the Department made additional tax payments, were located in the office at 110 Zashchitnaya Street, Karaganda, where the tax audit was to take place. By a decision of the court of Appeal dated October 15, 2020, the court's decision was changed in terms of declaring the notification illegal and canceling it. According to the mutual settlements between LLP "C" and LLP "T", the decision was canceled and a new decision was made to reject the application. the rest of the solution remains unchanged. The Appeals board concluded that on July 1, 2019, the tax authority sent a request for documents to Sapa-KST LLP, which was served on July 11, 2019, and therefore the court's conclusions on the need for a documentary tax audit directly with a visit to the inspection facility (subject) were found to be erroneous. At the same time, it was not taken into account that the tax authority, due to the impossibility of handing over the tax audit report to the representatives of LLP "C", conducted a tax survey of the legal address and drew up a tax survey report, which reflected that at the time of drawing up the tax audit report, the head of LLP "C" was absent, which is consistent with paragraph 3 of Article 158 of the Tax Code. The court did not give a proper legal assessment to the contract for depot repair and maintenance of 11 diesel locomotives dated August 1, 2016, concluded between LLP "S" and LLP "T", under the terms of which it is established that the contractor's staff means the customer's employees engaged by the contractor to perform work under the contract and on terms having the necessary qualifications and experience to perform work under the contract (clause 1.13). The Contractor undertakes to perform work in compliance with the applicable technical requirements and standards, as well as the rules for maintenance of locomotives (clause 5.2.5). By Order No. 544 of the Minister of Investment and Development of the Republic of Kazakhstan dated April 30, 2015, the Rules of Technical Operation of Railway Transport were approved, according to which special crews carry out maintenance and repair of railway transport. Meanwhile, according to the submitted tax reports in the COHO IP of the Republic of Kazakhstan, it was established that T LLP indicated 2 employees in the declaration on personal income tax and social tax (f.200.00) for the 4th quarter of 2016. The declaration on vehicle tax, land tax and property tax (f.700.00) was not submitted. in appendix 100.07 "Information on the components of financial statements" to the KPN declaration for f. 100.00 for 2016, there are no assets, from which it can be concluded that during the period of mutual settlements, LLP "T" lacked a material and technical base, property, fixed assets and vehicles, as well as employees to repair these locomotives. Thus, the exclusion from the deduction of expenses and VAT from the offset for mutual settlements of LLP "C" with LLP "T" and the corresponding accrual of VAT and VAT based on the results of the audit are legitimate.
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