Judicial practice in civil cases involving customs authorities

           On claims challenging the actions and decisions of the customs authority (in accordance with Chapter 27 of the CPC), on claims of customs authorities against individual declarants for the collection of arrears on customs payments, taxes and penalties related to: the classification of goods according to HS (commodity nomenclature of foreign economic activity), with the determination of the customs value of goods transported through border, as well as other disputes involving customs authorities.

With the establishment of the Customs Union of the Republic of Belarus, the Republic of Kazakhstan and the Russian Federation on July 1, 2010, the legislation in the field of customs affairs is multilevel, which causes certain difficulties in law enforcement practice.

By virtue of paragraph 2 of Article 1 of the Customs Code of the Customs Union, which entered into force on the territory of the Republic of Kazakhstan on July 1, 2010, customs regulation in the Customs Union is carried out in accordance with the customs legislation of the Customs Union, and in the part not regulated by such legislation - in accordance with the legislation of the member States of the Customs Union. That is, the norms of the customs legislation of the Customs Union have a direct effect. Issues related to the level of national legislation are regulated by the Code "On Customs Affairs in the Republic of Kazakhstan".

This code reflects the norms that are directly regulated by the national legislation of the member States of the Customs Union or are not affected by the Customs Code of the Customs Union.

There are three key areas in which disputes arise between the customs authority and participants in foreign economic activity.

This:

- classification of goods;

- customs value of goods;

- customs check.

 

Disputes related to the classification of goods according to the Commodity Nomenclature of foreign economic activity of the Customs Union (hereinafter – HS CU).

Goods at their customs declaration are subject to classification according to HS.

When submitting a customs declaration for customs declaration, the declarant classifies the goods according to the HS code and declares the product code in the customs declaration.

The classification of goods according to the Customs Code of the Customs Union is one of the most pressing issues for participants in foreign economic activity.

Firstly, the rate of import/export customs duties and, accordingly, the amount of customs duties paid, the application of non-tariff measures, prohibitions and restrictions to goods and vehicles depend on which HS classification code the goods will be assigned to.

Secondly, the assignment of goods to a particular HS classification code often requires special technical knowledge and additional expertise related to determining the technical characteristics of goods, methods of its production, etc.

HS is based on the Harmonized Commodity Description and Coding System of the World Customs Organization.

By Law No. 525-II of February 3, 2004, the Republic of Kazakhstan joined the International Convention on the Harmonized Commodity Description and Coding System (Brussels, June 14, 1983).

Currently, the Customs Union has a Single Customs Code of the Customs Union, which was approved by the decision of the EEC Council on July 16, 2012.

HS is a classifier that is used for state regulation of the export and import of goods, i.e. a systematic list of goods, including the names of goods, their code designation, units of measurement of the quantity of goods, as well as notes and rules of interpretation.

The HS Code is a list of goods with digital codes assigned to them, which adheres to the principle of unambiguous attribution of goods to only one code.

That is, each product has its own ten-digit code designation. The first two digits indicate the product group, the first four indicate the product position, the first six indicate the subheading, and all ten indicate the subheading.

For unnamed, not particularly highlighted products, there are "basket" product items, or "others".

The unified Customs Code of the Customs Union contains 1221 commodity items, 5052 commodity subheadings, 11 171 commodity subheadings. The legislation establishes the procedure and procedure for the classification of goods by the customs authority, violations of which may lead to the recognition by the court of such a decision as illegal.

According to Article 78 of the Customs Code of the Republic of Kazakhstan, the classification of goods is based on the main criteria:

1) the function that the product performs;

2) the material from which the product is made,

3) the basic rules of interpretation of HS.

If, during the customs declaration of goods, the declarant incorrectly stated the HS codes in the customs declaration, the customs official shall, within one working day, request in writing from the declarant additional documents necessary for the classification of goods.

The Customs authority shall, no later than five calendar days, make a decision on the classification of goods in accordance with the form determined by the Government of the Republic of Kazakhstan.

The form was approved by Resolution of the Government of the Republic of Kazakhstan dated September 8, 2010 No. 912 "On approval of decision forms for the classification of goods, on the classification of goods in an unassembled form and making a preliminary decision on determining the country of origin of goods when applying preferential and non-preferential regimes."

It lists 4 reasons for changing the classification of goods:

1) cargo customs declaration;

2) submitted shipping documents;

3) expert opinions of the customs laboratory or the department (department) or the department (department) of expertise;

4) an act (certificate) on the research results of an accredited testing laboratory that performs an independent examination of goods.

This list is exhaustive. As mentioned above, assigning a product to a particular HS classification code requires special technical knowledge and additional expertise related to determining the technical characteristics of the goods, methods of its production, etc.

Therefore, the decision of the customs authorities to reclassify the product code should be based on an expert opinion or laboratory test, and the absence of such a conclusion should be recognized as the basis for the cancellation of the decision of the customs authority.

The customs authorities have established their own expert and laboratory departments, which are authorized to conduct expertise and laboratory tests. Often, decisions of customs authorities are based on the conclusions of customs examinations and tests, which does not contradict the legislation.

However, persons who import / export goods have the right to appeal the classification decisions of the customs authorities in court, despite the existence of an expert opinion, which is the basis for classification.

The courts, considering such applications, must verify the grounds for the appointment of an expert examination, compliance with the procedure and the procedure for its conduct. The appointment of an expert examination should be justified, and the questions raised for the examination should be correct.

It should also be borne in mind that the expert opinion is subject to evaluation in conjunction with other evidence, has no pre-established priority force and can be refuted with justification if there are grounds for this.

At the same time, the courts have the right to appoint an independent expert examination (including repeated and commission) and compare their conclusions. In addition, the inconsistency of the decision of the customs authority on the classification of goods in the form established by the above-mentioned Government Decree, including the issuance of a decision not on a strict reporting form and not executed by printing, also entails the invalidity of such a decision with reference to paragraph 2 of Article 5 of the Law "On Administrative Procedures", according to which the legal acts of state bodies, those that contradict the requirements of the Constitution and the legislation of the Republic of Kazakhstan are invalid.

A decision on the classification of goods is binding, unless appealed in accordance with the established procedure.

For example, one of the grounds for rejecting the application of CBC TIRES LLP was the fact that the decision of the Department of Customs Control in Almaty dated October 29, 2013 has not been appealed and is legally binding at the time of consideration.

The expert opinion is not binding on the court and is subject to evaluation along with other evidence when resolving a dispute over the classification of goods.

Hamburg LLP acquired two units of FORTSCHRIT E 303 self-propelled mowers with harvesters from S.T. Landmaschinen - und Nutzfahrzeughandel of Germany, namely mowers with an engine, such as Forshrit E 303, used.

In the export declaration dated May 16, 2011, the supplier declared a mower with an engine according to commodity nomenclature 8433201000, the partnership also classified these mowers according to HS code 8433201000, and therefore they were not subject to customs duty. The Department carried out a conditional release of goods, and subsequently an inspection was carried out and a decision was made on the classification of goods according to HS code 8701905000 as a FORTSCHRIT E 303 mower (tractor), and the FORTSCHRIT E 303 mower (harvester) must be subject to zero customs duty according to HS code 8433 20 500 0. In this regard, the Department issued a notice to the partnership on repayment of debt in the amount of 844 576 tenge.

The court of first instance, recognizing as illegal and canceling the act on conducting an inspection and notification of repayment of arrears on customs payments, taxes and penalties, took into account only the conclusion of the forensic automotive technical examination No. 2182 dated December 4, 2013, according to which the contested mowers are an agricultural self-propelled machine based on the basic machine "FORTSCHRIT E 303" and additional The E023 harvester is designed for mowing stalked grass crops, i.e. They are designed to perform only certain functions (operations) provided by the manufacturer and cannot be used as a universal tractor-type machine.

In this regard, the court concluded that the FORTSCHRIT E 303 mower with harvesters and the tractor are not identical and cannot be classified under the same heading.

By a decision of the court of cassation, the decision of the court of first instance was overturned with a new decision rejecting the application on the following grounds.

The court of first instance did not take into account that the FORTSCHRIT E 303 tractor has the ability to change/install various types of harvesters, differing in overall dimensions and technical capabilities. That is, the FORTSCHRIT E 303 tractor can be equipped with E-023 or E-025B harvesters, an E-318 roller shifter and an E309 grain roller header.

According to the explanations of the Customs Control Committee of the Ministry of Finance of the Republic of Kazakhstan dated February 8, 2013, the FORTSCHRIT E 303 tractor is a self-propelled wheeled vehicle for powering the mounted unit of the harvester (mower). According to the reference information, this tractor has the ability to mount various types of harvesters, differing in overall dimensions and technical capabilities. The tractor is equipped with a tow hitch at the rear.

And the E-023 harvester for the FORTSCHRIT E 303 mower is an attachment, a machine for mowing grass and laying it in a roll. The header is aggregated with the tractor and is powered by the tractor's power take-off shaft. The equipment of the mower is mounted, installed in front of the tractor and consists of a header with a roller shifter, a knife hender and a screw roller shaper.

According to Note 2 to Chapter 87 of the Customs Code of the Customs Union 2, the term "tractors" means vehicles designed primarily for towing or pushing other vehicles, devices or goods, regardless of whether they have additional devices or not, in combination with the main purpose of the tractor, for transporting tools, seeds, fertilizers or other cargo.

Machinery and working tools designed to be installed on tractors of heading 8701 as replacement equipment belong to the corresponding headings, even if they are presented together with tractors, regardless of whether they are installed on tractors or not.

In accordance with the provisions of the Explanatory Notes to heading 8432 (Trailed or mounted machines that are replaceable equipment for a tractor), some agricultural, horticultural or forestry machines are intended exclusively for attachment to a tractor by means of a connecting device (with or without a lifting mechanism).

Other machines are powered by a tractor's general-purpose power take-off shaft.

Such machines are mounted and replaced in the field, in the forest or in the farmyard. All these machines are included in the heading, even if they are supplied with the tractor (regardless of whether they are mounted on the tractor or not).

The tractor itself is included in heading 8701. The Cassation Judicial Board, based on the main classification criteria, concluded that the FORTSCHRIT E 303 tractor and the mounted harvester (mower) should be classified separately in headings 8701 (tractor) and 8433 (harvester).

The conclusion of the customs examination is subject to evaluation by the court in conjunction with other evidence in the case.

The decision of the Economic Court denied the satisfaction of the application of Kazakh-French Joint Venture KATKO LLP to the Department of Customs Control in the South Kazakhstan region for recognition as illegal and cancellation of the notification of repayment of arrears on customs payments, taxes and penalties.

LLP imported into the customs territory of the Republic of Kazakhstan a product - STUWA drainage sieve, which is classified by the declarant according to HS code 3917400000 and is subject to zero-rate taxation. The Department carried out a conditional release of goods, and subsequently, based on the results of a desk customs inspection, a decision was made on the classification of goods according to HS code 3917 23 900 9 (perforated PVC pipes), based on the expert opinion.

According to the technical description and the photograph, this product was a hollow plastic pipe with a perforation, designed to be attached to PVC casing pipes and used to filter the productive solution.

According to paragraphs 3.7 of Article 78 of the Customs Code of the Republic of Kazakhstan, when submitting a customs declaration for customs declaration, the declarant classifies the goods according to the HS code and declares the goods code in the customs declaration.

In case of detection of incorrect classification of goods, the customs authority independently classifies the goods and decides on the classification of goods according to the form determined by the Government.

When carrying out customs clearance and customs control, the customs authorities verify the correctness of the classification of goods in accordance with the HS Code.

Thus, the classification of goods is carried out by the customs authority, and the conclusion of the expert examination department in form and content is not a decision on the classification of goods and is advisory in nature.

At the same time, the disputed gas turbine engines were checked on July 26, 2013, that is, after amendments and additions were made to the Labor Code of the Republic of Kazakhstan dated July 3, 2013. Consequently, the court reasonably concluded that the application had been refused.

Cases on disputes related to the determination of the customs value of goods transported across the border

Since July 1, 2010, the issues of determining the customs value have been regulated by the Agreement on Determining the Customs Value of Goods Transported across the Customs Border of the Customs Union dated January 25, 2008, ratified by the Law of the Republic of Kazakhstan dated February 23, 2009 No. 139-IV (hereinafter referred to as the Agreement dated January 25, 2008).

The said Agreement establishes uniform rules for determining the customs value of goods for the purpose of applying the Single Customs Tariff of the Customs Union, as well as applying other measures other than customs tariff regulation.

The system of determining the customs value (customs valuation) of goods is based on the general principles of customs valuation adopted in international practice and applies to goods imported into and exported from the customs territory.

The Agreement of January 25, 2008 established six methods for determining the customs value of goods:

- according to the transaction value of imported goods (method 1);

- by the transaction value of identical goods (method 2);

- according to the transaction value of similar goods (method 3);

- subtraction (method 4); - addition (method 5);

- backup method (method 6).

The rules for the application of the first five methods were approved by the decisions of the EEC Board in 2012, however, the generalization did not reveal the application of these Rules in law enforcement practice.

The procedure for monitoring and adjusting the customs value of goods is also regulated by the Decision of the CCC dated September 20, 2010.

Meanwhile, the results of the generalization show that local courts have issues in resolving disputes related to determining the customs value of goods.

Violation by the customs authority of the established procedure for adjusting the customs value and incorrect application of the method of determining the customs value are grounds for declaring illegal and canceling the notification of repayment of arrears on customs payments.

POSCO ENGINEERING CONSTRUCTION CO. LTD" (hereinafter referred to as the company) applied to the court for the cancellation of the act of desk customs inspection and notification of the RSU "Department of Customs Control for the South Kazakhstan region" (hereinafter referred to as the Department, Customs authority) on the repayment of arrears in customs payments, taxes and penalties.

The decision of the Economic Court denied the application. By the decision of the appellate judicial board, the decision of the court of first instance was changed, in terms of the cancellation of the act of desk inspection, the court's decision was canceled with the termination of the proceedings in this part. The rest of the decision of the court of first instance remains unchanged.

By the decision of the cassation judicial board, the decision of the court of appeal was left unchanged. By a decision of the Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court, the judicial acts of the appellate and cassation instances were amended and annulled in terms of refusal to satisfy the application, with a new decision on the satisfaction of the application in this part.

The notification of repayment of arrears on customs payments, taxes and penalties was declared illegal and canceled. The rest of the resolution of the judicial boards of the regional court remained unchanged. On May 3, 2011, the company's branch (lessee) signed a lease agreement with K-tech. & Construction Co., LTD (lessor), under the terms of which the lessor undertakes to lease construction equipment to the lessee on a paid basis without transfer of ownership. The total payment for the rental of construction equipment under this agreement is made in two stages.

Under the lease agreement, the company imported into the customs territory of the Customs Union goods under two DTS No. 51321/120711/0007566 and 54809/060911/0001569 equipment for public works, construction or other similar works.

The declarant declared the customs value of the goods according to the transaction value of the imported goods. The goods were released according to the declared customs procedure.

After the release of the goods, a desk customs inspection was carried out, as a result of which a desk customs inspection act was drawn up and notification No. 16-06-12/18 dated November 21, 2013 was sent to the company on repayment of arrears on customs payments, taxes and penalties in the amount of 13,417,328 tenge.

According to the act of desk customs inspection, the company incorrectly determined the customs value of the imported goods, since it follows from the content of the lease agreement dated May 3, 2011, that the specified transaction does not contain signs of purchase and sale and the declared value is the amount of rent payable.

In violation of customs regulations, the applicant failed to provide the customs authority with documents confirming the transfer of the amount to the seller as for the purchased goods, and not for rent. The customs authority, having adjusted the customs value of the goods according to the above two GTE, proceeded from the transaction price for similar goods, the value of which is determined by the weight of the goods - according to the concrete paver, for goods issued according to customs declaration No. 54809/060911/0001569, the customs value is determined using the reserve method. The customs procedure for the temporary import of goods issued under DT No. 51321/120711/0007566 and DT No. 54809/060911/0001569 was completed by placing the goods under the customs procedure for release for domestic consumption and issued under DT No. 55509/210613/0009181 and DT No. 55509/240613/0009280, respectively.

The court of First instance pointed out the validity of such an adjustment of the customs value by the Department and the legality of issuing a notification to the company. The Appeals board recognized the conclusions of the court of first instance as correct, however, referring to the fact that the act of desk inspection is not subject to appeal, terminated the proceedings in the specified part. The Court of cassation agreed with the position of the appeals board.

When considering the dispute, all judicial instances were guided by the Customs Code of the Republic of Kazakhstan, that is, national legislation. Meanwhile, by virtue of paragraph 2 of Article 1 of the Customs Code of the CU, which entered into force on the territory of the Republic of Kazakhstan on July 1, 2010, customs regulation in the Customs Union is carried out in accordance with the customs legislation of the CU, and in the part not regulated by such legislation – in accordance with the legislation of the CU member States.

The relevant regulatory legal acts, namely, the Procedure for Controlling the Customs Value of Goods (hereinafter referred to as the Control Procedure) and the Procedure for Adjusting the Customs Value of Goods (hereinafter referred to as the Adjustment Procedure) were approved by Commission Decision No. 376 dated September 20, 2010 "On Procedures for Declaring, Controlling and Adjusting the Customs Value of Goods." In the case under consideration, the Department carried out control of the customs value of the goods, as a result of which an adjustment of the customs value of the goods was actually carried out. However, the customs value control and adjustment procedure provided for by the Commission's decision was not followed by the Department.

According to paragraph 27 of the Control Procedure in force on the territory of the Customs Union since October 21, 2010, if false information about the customs value of goods is found during the control of the customs value after the release of goods, including incorrect choice of the method of determining the customs value of goods and (or) incorrect determination of the customs value of goods, the customs authority decides to adjust customs value and brings it to the attention of the declarant in the manner and within the time limits established by the legislation of the member States of the Customs Union.

The decision to adjust the customs value is made in accordance with Appendix No. 1 to the Control Procedure, unless otherwise provided for in the legislation of the member States of the Customs Union. The national legislation of the Republic of Kazakhstan does not provide otherwise. Moreover, Articles 109, 110, 111 of the Customs Code of the Republic of Kazakhstan explicitly stipulate that the procedure for monitoring and adjusting the customs value of goods is established by a decision of the Commission.

Further, the declarant, in accordance with the established procedure, adjusts the customs value of goods by submitting to the customs authority duly completed declarations of customs value (hereinafter referred to as the DTS) and the form of adjustment of customs value and customs duties, and also pays customs duties and taxes calculated taking into account the adjusted customs value of goods (paragraph 28 of the Control Procedure).

If the declarant has not adjusted the customs value within the time period established in a member State of the Customs Union or such an adjustment has been carried out improperly (incorrectly), the customs value adjustment shall be carried out by an authorized person of the customs authority.

In this case, the latter fills out the DTS, the form for adjusting the customs value and customs payments in accordance with the established procedure and sends the declarant their corresponding copies no later than one business day following the day of their filling (paragraph 29 of the Control Procedure).

The provisions of the Adjustment Procedure, which entered into force on January 1, 2011, correspond to the above norms. The adjustment of the customs value of goods includes: - calculation of the adjusted customs value of goods, which is carried out in the DTS, which is processed in accordance with the established procedure; - reflection of the adjusted customs value and recalculation of customs duties and taxes in the form of adjustments to the customs value and customs duties, given in Appendix No. 1 to the Adjustment Procedure (paragraph 3). When making adjustments to the customs value of goods, filling out the DTS is mandatory.

If an adjustment is made by the customs authority, the source of the data used is indicated (paragraph 4).

Instead of the described procedure for monitoring and adjusting the customs value of goods after their release, provided for by the legislation of the Customs Union, the Department conducted a desk customs inspection.

The courts of appeal and cassation instances, when resolving the dispute, took into account the arguments of the customs authority about the unreliability of the declared customs value of the goods, with reference to the fact that the lease agreement dated May 3, 2011 does not contain signs of purchase and sale.

Meanwhile, Appendix No. 1 to the named lease agreement indicates the cost of concrete-laying equipment, which calculates the amount of insurance for all equipment and its delivery to the Republic of Kazakhstan. CCC Decision No. 376 of September 20, 2010 approved the Procedure for declaring the customs value of goods, paragraph 27 of which stipulates that in the absence of a purchase and sale transaction or unacceptability of the price actually paid or payable, based on the requirements of Article 4 of the Agreement, the value of these goods may be indicated equivalent (close to) the price actually paid or payable, and confirmed by relevant documents (for example, the book value of the assessed goods when they are registered for accounting and tax accounting in accordance with the legislation of the member state of the Customs Union).

Accordingly, for the import of goods under a lease agreement for their own use, the declarant independently indicates in the declaration the value of the goods in accordance with the lease agreement and accounting data on the balance of the value of the imported goods, which was performed by the declarant. The customs authority, having applied the second and reserve methods for determining the customs value, did not provide the court with evidence of the impossibility of using the previous methods, which is unacceptable by virtue of the Agreement on Determining the Customs Value of Goods Transported across the Customs Border of the Customs Union dated January 25, 2008 (ratified by the Law of the Republic of Kazakhstan dated February 23, 2009 No. 139-IY, entered into force on July 1, 2010, hereinafter referred to as the Agreement).

In addition, the Department applied the transaction value method for similar goods to determine the customs value of goods in violation of the requirements contained in the Agreement. Information on the sale and importation into the customs territory of the Customs Union of similar goods in the same or corresponding time period as the goods being evaluated, but not earlier than 90 calendar days before the import of the goods being evaluated (imported), the Department has not submitted to the court, as well as information on the commercial level, the number of similar goods sold.

Article 7 of the Agreement provides that the specified information is applied with an appropriate cost adjustment, taking into account differences in the commercial level of sale and (or) in the quantity of goods. Such an adjustment is carried out on the basis of information documenting the validity and accuracy of the adjustment.

In the absence of such information, the transaction value method for similar goods is not used for the purpose of determining the customs value.

The Supervisory Judicial board concluded that the courts of appeal and cassation had unlawfully recognized the notification of the customs authority as legitimate, since the position of the regional courts did not comply with both customs legislation and the circumstances relevant to the case.

Disputes related to the appeal of the procedure and results of customs inspections.

The most common category of court cases involving customs authorities are cases of appeal by participants in foreign economic activity against a notification issued based on the results of a customs inspection.

By virtue of paragraph 11 of Article 122 of the Customs Code of the Customs Union, the results of the customs inspection are processed in accordance with national customs legislation.

As the analysis of judicial practice up to and including 2013 showed, notifications of repayment of arrears in customs payments, taxes and penalties were generally recognized as illegal due to the issuance of a desk customs inspection, which contradicted paragraph 24 of Article 221 of the Customs Code of the Republic of Kazakhstan, which provided for the issuance of a notification of repayment of arrears in customs payments, taxes and penalties based on the results of an on-site customs inspection. checks. The position of the local courts in resolving such disputes was not unified.

The ruling of the supervisory Board of the Supreme Court dated January 30, 2013 on the civil case of Zhaikmunai LLP against the Customs Control Department of the West Kazakhstan Region on the cancellation of the notification of repayment of customs debts issued following the results of a desk customs inspection was of practical importance on this issue.

Taking into account the position of the Supreme Court, the authorized body, the Ministry of Finance, initiated amendments and additions to the Code of Customs Affairs in the Republic of Kazakhstan. Constitutional Law No. 121-V dated July 3, 2013 "On Amendments and Additions to the Constitutional Law of the Republic of Kazakhstan and to Certain Legislative Acts of the Republic of Kazakhstan on the elimination of Contradictions, gaps, conflicts between the legal norms of various Legislative acts and norms contributing to the commission of Corruption Offenses" Code "On Customs in the Republic of Kazakhstan" supplemented by Article 221-1 "Registration of the results of the customs inspection and decision-making on its results", according to which, according to the results of the customs inspection, during which violations of the customs legislation of the Customs Union and (or) the legislation of the Republic of Kazakhstan were revealed, a notification is issued on the repayment of arrears in customs payments, taxes and penalties and (or) a requirement to eliminate violations in accordance with the forms established by the authorized body in the field of customs affairs.

Thus, from the date of entry into force of the above innovation, the customs authorities have the right to issue notifications, both based on the results of an on-site customs inspection and on the results of an on-site customs inspection. Today, according to the analysis, judicial practice in resolving this category of disputes is correct, local courts resolve these disputes taking into account the amendments introduced by the Constitutional Law and do not cause difficulties.

For example, Stopharm LLP appealed to the court with an application to the Department of Customs Control in Kostanay region for recognition as illegal and cancellation of the notification of repayment of arrears on customs payments, taxes and penalties.

The statement is motivated by the fact that on September 18, 2013, the LLP received a letter from the defendant with an attachment: an act of desk customs inspection and notification of repayment of arrears on customs payments, taxes and penalties. On the basis of this act, a notification was issued on the repayment of arrears on customs payments, taxes and penalties in the amount of 632,656 tenge and penalties of 16,001 tenge.

The basis for calculating the amounts of taxes, the customs authority indicated that when imported by the declarant, the goods were incorrectly classified, they should have been classified in the commodity subheading 3307 90 000 8 of the Customs Code of the Customs Union, and the partnership incorrectly classified according to the HS code 3004 90 190 9. By the decision of the economic Court, the LLP's application was partially satisfied.

The notification of the Department regarding the presentation of a penalty with the obligation of the customs authority to recalculate the penalty was canceled. The rest of the application is denied. As follows from the court's decision of June 17, 2013, the contested notification was canceled only on formal grounds, since previously existing customs legislation did not provide for the issuance of a notice of debt repayment based on the results of desk control.

However, on July 16, 2013, the legislator amended the Customs Code of the Republic of Kazakhstan, which stipulates that notices of debt repayment can also be issued based on the results of desk control. On September 16, 2013, the Customs authority actually conducted a desk customs control on the same customs declarations that were the subject of an assessment of earlier judicial acts.

In accordance with 188 of the Customs Code of the Republic of Kazakhstan, customs authorities carry out customs control after the release of goods for 5 years from the date of the end of the goods under customs control, customs control after the release of goods is carried out in the forms and procedures established by Chapters 21 and 24 of the Code.

Taking into account the provisions of the above-mentioned norm, the court of appeal considered that the customs authority acted lawfully within the established period of verification by conducting such desk control, customs legislation has no prohibitions for conducting repeated customs inspections within the framework of desk control and issuing notices of debt repayment.

Thus, the inspection itself and the results obtained correspond to the current customs legislation.

The procedure and conditions for judicial challenge (appeal) of actions (inaction) of state bodies are regulated by Chapter 27 of the CPC, as well as by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 24, 2010 No. 20 "On certain issues of application by courts of the norms of Chapter 27 of the Civil Procedure Code of the Republic of Kazakhstan".

Such actions, according to paragraph 1 of Article 279 of the CPC, include collegial and individual decisions and actions (or inaction), as a result of which:

1) the rights, freedoms and legally protected interests of citizens and legal entities have been violated;

2) obstacles have been created to the exercise by a citizen of his rights and freedoms, as well as by a legal entity of his rights and legally protected interests;

3) any obligation has been unlawfully imposed on a citizen or a legal entity, or they have been unlawfully held accountable.

However, the courts do not always comply with the specified legal requirements, which leads to the correction of judicial acts by higher judicial authorities. Thus, Chinaliev S. appealed to the court against the refusal of the Customs Control Committee of the Republic of Kazakhstan (hereinafter referred to as the Committee) to release the vehicle across the customs border. On the appeal of Chinaliev Sh.D. The Committee sent a letter to him explaining the procedure and grounds for exemption from customs duties on cars owned by individuals, carried out in accordance with the "Agreement on the procedure for individuals to move goods for personal use across the customs border of the Customs Union and perform customs operations related to their release" and the Customs Code. The vehicle. It is established that Chinaliev Sh.D. the declaration and other documents for customs clearance of the vehicle were not presented to the customs authority, whereas according to paragraph 1 of Article 288 of the Customs Code of the Republic of Kazakhstan, the customs declaration is submitted by the declarant or customs representative to the customs authority authorized in accordance with the customs legislation of the Republic of Kazakhstan to register customs declarations. The provisions of Article 173 and paragraph 2 of Article 174 of the Customs Code of the Republic of Kazakhstan provide for judicial review of notices of repayment of arrears in customs duties, taxes and penalties.

Since the contested letter from the Committee did not deny the customs release of goods to Chinaliev Sh.D., customs payments were not accrued, and no notification of customs payments was issued, the said letter does not relate to decisions, actions (or inaction) of a government agency that are subject to challenge in court, but is explanatory in nature. Despite these legal requirements, the court of first instance considered the application on its merits and refused to satisfy it. The Court of appeal agreed with this conclusion.

The Court of Cassation, proceeding from the fact that the charge brought by Chinaliev Sh. The application was not subject to consideration in civil proceedings, and reasonably quashed the judicial acts of the first and appellate instances, terminating the proceedings.

Other disputes in the field of customs

Goods conditionally released with the provision of benefits for the payment of customs duties retain the status of foreign goods if they were not used for purposes that comply with the conditions for granting benefits.

According to Article 301 of the Customs Code of the Republic of Kazakhstan, goods placed under the customs procedure of release for domestic consumption are considered conditionally released, in respect of which benefits are provided for the payment of import customs duties and taxes, associated with restrictions on the use and (or) disposal of goods.

These conditionally released goods may be used only for purposes that comply with the conditions for granting benefits, have the status of foreign goods and are under customs control.

These goods are considered conditionally released until the termination of the obligation to pay the amounts of import customs duties and taxes due, unless otherwise provided by the Code. By virtue of paragraph 5 of Article 131 of the Customs Code of the Republic of Kazakhstan, when using conditionally released goods for purposes other than those for which exemption from customs duties and taxes was granted, the date of their payment is considered to be the day when the person violated restrictions on the use and disposal of goods. If it is impossible to determine the date of the violation, the date of registration of the customs declaration is considered the deadline for payment of customs duties and taxes.

According to paragraph 8 of Article 125 of the Customs Code of the Republic of Kazakhstan, when using conditionally released goods for purposes other than those for which a full or partial exemption from customs duties and taxes was granted, the rates of customs duties and taxes applicable on the day of registration of the customs declaration by the customs authority are applied to calculate the customs duties and taxes payable. payment of penalties in accordance with Article 158 of the Customs Code of the Republic of Kazakhstan.

Based on the above legal norms, the use of conditionally released goods for purposes other than those for which exemption from customs duties was granted entails the need to pay customs duties and taxes. JSC National Company Social and Entrepreneurial Corporation Kaspiy (hereinafter referred to as the company) filed a lawsuit against the Department of Customs Control in the Mangystau region to cancel the notification of repayment of arrears on customs payments, taxes and penalties.

The claim was denied by the decision of the Economic Court, which was left unchanged by the appellate and cassation instances. As can be seen from the case, the Customs Control Department conducted desk monitoring of the company's activities on the issue of the intended use of civil aircraft imported under the Import-40 customs regime and released into free circulation with the payment of value-added tax (VAT) by the offset method and conditional accrual (without actual payment) of customs duties. Based on the company's inspection report, the customs authority issued a notification on repayment of arrears on customs payments, taxes and penalties in the total amount of 191,270,683 tenge.

This amount was accrued due to the company's violation of the terms of the investment contract concluded on March 25, 2011, valid until December 31, 2011, which granted the company exemption from customs duties on aircraft imports. According to subparagraph 8 of paragraph 10 of the Contract, during the term of its validity, the company undertook not to lease, alienate or change the purpose of fixed assets acquired in accordance with the work program of the contract.

However, on August 21, 2012 (after the expiration of the Contract), the company sold the aircraft to Invest Avia Airlines JSC on the basis of the contract, thereby using the conditionally released goods for other purposes than those for which exemption from customs duties was granted. Taking into account the established circumstances, the actions of the customs authority to issue the disputed notification by the local courts were reasonably recognized as lawful.

The company's arguments that the company's obligation to pay import customs duties and taxes ceased on the date of termination of the investment contract are refuted by paragraph 3 of Article 132 of the Customs Code of the Republic of Kazakhstan, which stipulates that for goods under customs control in accordance with the chosen customs procedure, the customs authority has the right to charge or review the amounts of customs duties, taxes and penalties payable during the period when the goods are under customs control and five years after the end of the period when the goods are under customs control.

The company's reference to CCC Decision No. 130 of November 27, 2009, according to which civil passenger aircraft imported before June 1, 2014, are exempt from import customs duties, was declared untenable by the court, since the company, not being an airline, does not carry out air transportation, whereas in subparagraph 7.1.13 of paragraph 7.1

The CCC decision states that civil passenger aircraft imported to the Republic of Belarus and the Republic of Kazakhstan before July 1, 2014, are exempt from import customs duties for the purpose of their use for international transportation and (or) domestic transportation through the territory of the state where the goods are imported, and (or) between the territories of the member states of the Customs Union. The Union.

The requirement of the customs authority to pay the amounts of customs duties and taxes due is subject to unconditional and mandatory execution by the insurance company by virtue of Article 149 of the Customs Code of the Republic of Kazakhstan.

In accordance with paragraph 4 of Article 149 of the Customs Code of the Republic of Kazakhstan, in case of non-fulfillment of obligations to pay customs duties and taxes, the customs authority sends an insurance company a claim for payment of the amounts of customs duties and taxes due within five days after the expiration of the obligations stipulated in insurance contracts.

The claim of the customs authority is subject to unconditional and mandatory fulfillment by the insurance company within two working days from the date of receipt of such a claim (paragraph 5 of Article 149 of the Customs Code of the Republic of Kazakhstan).

By the decision of the Economic Court, customs payments and taxes in the amount of 40,615,494 tenge were collected from the Subsidiary Insurance Company to the budget revenue. The claim is motivated by the fact that, at the request of the recipient of the imported goods, Aktau-BekNur-Company LLP, a card was issued to secure payment of customs duties and taxes in accordance with the insurance contract dated September 2, 2011 in the amount of 40,615,494 tenge, with a deadline for securing payment of customs duties and taxes until January 1, 2012, concluded with a branch of the insurance company companies.

In this regard, the goods were unloaded to the recipient's warehouse. However, Aktau-BekNur-Company LLP, despite the fact that the shelf life of the goods expired on January 3, 2012, without carrying out customs clearance, sold the goods without the permission of the customs authority, which led to a violation of the requirements of customs legislation in terms of violating the deadlines for filing a customs declaration, documents and information, temporary storage periods and deadlines for the payment of customs duties and taxes, changes in the condition, use and (or) disposal of goods for which customs clearance has not been completed.

In this regard, the customs authority issued a claim to the defendant for payment of customs duties and taxes, which did not pay these amounts. In the case, it was established that an insured event occurred due to the failure of Aktau-BekNur-Company LLP to fulfill its obligations to pay customs duties, and, consequently, the Department had the right to demand that the insurance company pay him the insurance payment provided for in the insurance contract and is a way to ensure payment of customs duties and taxes, in turn, the defendant has an obligation to pay the insurance payment within the time limits stipulated by law.

The termination of the insurance contract by the defendant without the consent of the customs authority was recognized by the court as illegal, as it contradicts the requirements of the legislation. The court's decision was left unchanged by the decision of the appellate and cassation instances. The supervisory authority refused to initiate proceedings.

It seems wrong to refer to the relevant norms of the Civil Code on the obligation, since the obligation of the insurance company to comply with the requirements of the customs authority follows from customs legislation.

The Department of Customs Control in the Aktobe region filed a lawsuit against Nomad Insurance Company JSC to recover the insured amount in the amount of 41,882,175 tenge, arguing that the civil liability of Petroleum Energy Trade LLP to the customs authority for violating customs legislation regarding the payment of customs duties, taxes and the penalty is insured under a voluntary insurance contract.

The decision of the Economic Court of April 26, 2013 satisfied the requirements of the customs authority. The decision was left unchanged by the decision of the appellate instance. By the decision of the cassation judicial board, the decision of the appellate collegium was canceled and sent for a new review to the appellate instance on the following grounds.

According to clause 8.1 of the general agreement, the right of claim that the beneficiary has against the person responsible for losses compensated as a result of insurance, including the policyholder, passes to the insurer who made the insurance payment, within the amount paid.

The insurance company receives, within the amount paid, the right of claim that the beneficiary has against Petroleum Energy Trade LLP, which was not involved in the case, which was the basis for the cancellation of the judicial act.

These judicial acts are motivated by the fact that the obligations of the insurance company arise from the contract with reference to articles 272, 828, 835, 839 of the Civil Code.

However, this practice is incorrect, since the obligation of the insurance company to comply with the requirements of the customs authority follows from the customs legislation.

The provided contracts with insurance companies are one of the types of ensuring the fulfillment of the declarant's obligation to pay customs duties, taxes and penalties (Articles 143-149 of the Customs Code of the Republic of Kazakhstan).

The court's decision does not impose any rights and obligations on a third party, and the declarant of Petroleum Energy Trade LLP has an obligation to pay customs duties and taxes at the time of import/export of the goods.

At the new appeal hearing, the court's decision was changed, by the decision of the board, the amount of insurance payment was reduced to 38 350,831 tenge within the limits established by the one-time insurance contract.

In case of non-fulfillment or violation of the deadlines for fulfilling the requirements of the customs authority, the insurance company is liable in accordance with the laws of the Republic of Kazakhstan. Thus, this provision contains the consequences of the insurance company's failure to comply with the requirements of the customs authority.

Tsesna Garant Insurance Company, a subsidiary of Tsesnabank JSC (hereinafter referred to as the insurance company), filed a lawsuit against RosKazLine LLC (hereinafter referred to as the company) for invalidation of: general agreement on civil liability insurance to customs authorities No. GS GPO 12141 dated April 5, 2012; voluntary insurance contracts Civil liability to Customs authorities No. 12141 dated April 5, 2012 (insurance certificate No. 1) and No. 12141 dated April 16, 2012 (insurance certificate no.

2). The claim is motivated by the fact that the company did not pay insurance premiums under the specified agreements, and when concluding the disputed agreements, it deliberately pursued the goal of obtaining an unlawful benefit – evading customs duties when importing goods into the customs territory of the Customs Union.

The claim was denied by the decision of the Economic Court of the East Kazakhstan region. The decision of the court of first instance was left unchanged by the decision of the appellate judicial board.

By a decision of the cassation judicial board, the decision of the court of appeal was annulled with the referral of the case for a new appeal hearing. By the ruling of the appellate judicial board, the decision of the court of first instance was overturned and the claim was satisfied by the decision of the appellate judicial board.

The contested general agreement and voluntary insurance contracts of civil liability to the customs authorities have been declared invalid. The decision of the court of appeal was left unchanged by the decision of the cassation judicial board.

By the decision of the Supervisory Judicial Board of the Supreme Court dated July 16, 2014, the judicial acts of the appellate and cassation instances were annulled, while the decision of the court of first instance remained in force. On April 5, 2012, in the city of Semey, the insurance company (the insurer) and the company (the policyholder) concluded a General Agreement on Civil Liability Insurance to Customs authorities No. GS GPO 12141, according to which a separate civil liability agreement (hereinafter referred to as the GPO) of the policyholder is concluded for each carriage of goods and vehicles. before the customs authorities.

The object of insurance is the property interests of the policyholder related to his obligation to compensate for damage caused to the customs authorities of the Republic of Kazakhstan as a result of non-payment of stipulated customs duties and taxes upon importation of goods specified in the insurance contract into the customs territory.

As part of the General Agreement, the parties concluded 2 voluntary insurance contracts for civil liability to customs authorities with the Department being designated as the beneficiary: No. 12141 dated April 5, 2012 (insurance certificate No. 1) with an insured amount of 35 million tenge and No. 12141 dated April 16, 2012 (insurance certificate No. 2) with an insured sum of 25 million tenge. Under both contracts, an insured event is the occurrence of the insured's GPO for damage caused to the beneficiary as a result of non-payment (in whole or in part) of customs duties and taxes.

The contested General Agreement and insurance certificates, as well as payment documents confirming the payment of the insurance premium, were submitted to the customs authority on April 18, 2012 at the Maikapchagai customs post in the East Kazakhstan region as an interim measure when processing the customs transit procedure for goods whose recipient was the company.

In this regard, after applying means of identification (seals) to the cargo compartments of the vehicles, the goods were allowed to enter the customs territory of the Customs Union. However, upon completion of the customs transit procedure at the Orsky customs post of the Orenburg Customs of the Russian Federation, it was found that the goods indicated in the accompanying documents were missing, as well as the seals were opened after their initial application. On August 22, 2012, the Department issued a claim to the insurance company for payment of the insured amount in connection with the occurrence of an insured event under the contract dated April 5, 2012 for a total amount of KZT 32,656,670. During the court proceedings on the dispute under consideration, it was established that the director of the company, Y. Shavrina, whose signatures are in the disputed contracts, was not present at the signing of the contract. Blank sheets signed by Shavrina Yu. and stamped by the company were presented to Nurseitov S.B., director of the insurance company for the cities of Semey and Ustkamenogorsk, by persons who identified themselves as representatives of the company. On these sheets, Nurseitov S.B. produced the texts of the General Agreement and contracts, which were signed by him with the seal of the insurance company.

The court of first instance dismissed the insurance company's claim, stating that non-payment of the insurance premium was not grounds for invalidating the contested contracts; the insurance company, by unlawfully concluding a deal in the absence of the company's director, had contributed to deception on the part of persons who had completed the customs transit procedure for goods that had not reached their destination.

The court of appeal disagreed with these conclusions and declared the disputed transactions invalid, arguing that:

- The General Agreement and contracts were concluded by unidentified persons with the aim of concealing goods from customs clearance and evading customs duties.;

- fake insurance premium receipts were presented during customs transit.;

- an insured event was provided for, which is devoid of signs of probability and randomness of its occurrence, which was known to the persons who concluded contracts on behalf of the company.

The Cassation Board supported the position of the court of appeal, additionally pointing out that the terms of the concluded contracts regarding the insurer's obligation to compensate the beneficiary for damage caused by non-payment of customs duties and taxes contradict customs legislation, which explicitly provides for the taxpayer's obligation to pay customs duties and taxes.

The Supervisory board pointed out that the court of first instance had correctly resolved the dispute, and the conclusions of the courts of first and cassation were not based on the law and the circumstances relevant to the case.

Subparagraph 1) Paragraph 1 of Article 85 of the Customs Code of the Customs Union provides that the fulfillment of the obligation to pay customs duties and taxes is ensured in the case of transportation of goods in accordance with the customs procedure of customs transit.

In addition to the methods of ensuring payment of customs duties and taxes specified in paragraph 1 of Article 86 of the Customs Union, the legislation of the member States of the Customs Union may provide for other methods.

In particular, according to paragraph 1 of Article 144 of the Customs Code of the Republic of Kazakhstan, payment of customs duties and taxes is provided by an insurance contract. These rules refute the cassation board's argument that the terms of the contested insurance contracts contradict customs legislation.

Further, by virtue of paragraph 2 of Article 158 of the Civil Code, a person who intentionally enters into a transaction that violates the requirements of the law, the charter of a legal entity or the competence of its bodies does not have the right to demand that the transaction be declared invalid if such a requirement is caused by selfish motives or the intention to evade responsibility. The evidence examined in the case reliably confirms that the disputed transactions were concluded by S.B. Nurseitov, a responsible employee of the insurance company, despite the absence of the company's director, Yu.V. Shavrina, when signing the transaction documents.

The insurance company, knowingly violating the provisions of the law when making transactions, contributed to the fact that the customs payments and taxes due were not paid by the company.

The goods placed under the customs transit procedure were indeed intended for the company, since this circumstance was established by the decision on the administrative offense case of August 3, 2012, issued against the company by the deputy head of the Orenburg Customs. The customs transit procedure was handled by a representative of the company, R.B. Musulmanbekov, under a notarized power of attorney dated April 9, 2012, signed by the director of the company, Y.V. Musulmanbekov, R.B. Shavrina. The General Agreement and GPO insurance contracts, as well as payment documents for insurance premiums, were submitted to the customs authority.

Therefore, the reference of the courts of appeal and cassation instances to the fact that the disputed transactions were concluded by persons unidentified by the investigation is untenable. The Customs authority was provided with invoices and fiscal receipts from the cash register indicating payment of the insurance premium.

The customs officers had no reason to doubt the authenticity of these documents. The absence of registration with the tax authority of a cash register machine with the factory number 1518080 cannot be considered reliable evidence of non-payment of insurance premiums. In addition, the court of first instance correctly pointed out that non-payment of the insurance premium is not a reason for declaring the disputed transactions invalid.

In connection with the above circumstances, the insurance company's requirement to declare the transactions it has made invalid should be regarded as an intention to evade the fulfillment of the insurer's obligations to pay the insured amount.

Moreover, according to the supervisory board, the insurance company abuses the right, which is prohibited by virtue of paragraphs 4, 5 of Article 8 of the Civil Code, which prescribe citizens and legal entities to act in good faith, reasonably and fairly in exercising their rights, observing the law, the moral principles of society and the rules of business ethics.

Practice shows that the customs authorities improperly perform their duties by sending a claim to the insurance company for payment of the amounts of customs duties and taxes due within five working days after the expiration of the terms of performance of the obligation stipulated in the specified insurance contract.

ProfitTransLogistic LLP applied to the Department of Customs Control in the Akmola region for recognition of illegal actions and cancellation of the illegal notification of repayment of arrears in customs payments, taxes and penalties, pointing out the illegality of the notification, since the partnership insured its liability for customs payments to insurance companies and the customs authorities must submit claims to the insurance company..

The decision of the Economic Court of July 18, 2014 denied the application. The decision is motivated by the fact that the payment of customs duties and taxes on the above-mentioned customs declarations in accordance with Articles 143, 149 of the Customs Code of the Republic of Kazakhstan was secured by voluntary insurance contracts of the payer's liability to the customs authorities with insurance companies JSC Insurance Company Kazkommerce-Polis and JSC Insurance Company Alliance-Polis.

The Department provided evidence of a claim to the Insurance Company Alliance-Polis, but no evidence of a claim to the Insurance Company Kazkommerce-Polis JSC was presented at the hearing. By the contested notification dated March 31, 2014, ProfitTransLogistic LLP accrued import customs duty in the amount of 25,760,255 tenge, VAT in the amount of 3,091,230 tenge.

It was established that Alliance-Polis Insurance Company JSC paid 17,856,094 tenge, as well as 2,142,731 tenge to the Department after the issuance of the appealed notice.

The court pointed out that there were no grounds for canceling the contested notification, since the request of the customs authority to the insurance company does not exempt ProfitTransLogistic LLP from paying the duty and VAT accrued under the act of the desk customs inspection dated March 31, 2014. Moreover, all insurance contracts provide for subrogation - the right to reverse the claim of the insurance company to the policyholder for the refund of the insurance payment.

When considering the case in the court of appeal, it was established that on April 3, 2015, the notice of appeal was withdrawn by the Russian State Institution "Department of State Revenue for the Akmola region".

In case of identification of substantiated facts that have led to a change in the amount of arrears in customs payments, taxes and penalties, in respect of which, in accordance with the Code, a notification of repayment of arrears has been sent, the customs authority sends a new notification of repayment of arrears in customs payments, taxes and penalties, while revoking the originally sent notification.

A new notification dated April 3, 2015 was sent by the Customs authority to ProfitTransLogistic LLP. The Appeals Board, leaving the decision of the court of first instance unchanged, indicated that the subject of the dispute is currently missing, and was not included in the discussion of the legality of notification No. 28 dated March 31, 2014, due to its withdrawal.

Thus, the rights of the partnership have not been violated at the moment.

In accordance with paragraphs 4, 5 of Article 149 of the Customs Code of the Republic of Kazakhstan, in case of non-fulfillment of the obligation to pay customs duties and taxes, the customs authority shall send to the insurance company a claim for payment of the amounts of customs duties and taxes due within five working days after the expiration of the terms of the obligation stipulated in the specified insurance contract.

At the same time, penalties are accrued from the day following the date of expiry of the obligation to ensure payment of customs duties and taxes.

The regulatory framework in the field of customs affairs is represented by the following legislation of the Customs Union:

The Customs Code of the Customs Union (annex to the Agreement on the Customs Code of the Customs Union, adopted by the decision of the Interstate Council of the Eurasian Economic Community (the supreme body of the Customs Union) at the level of heads of State dated November 27, 2009 No. 17), ratified by the Law of the Republic of Kazakhstan dated June 25, 2010 (hereinafter – the CU Customs Code).

International treaties (agreements) of the member States of the Customs Union regulating customs relations in the Customs Union. The full list of international treaties forming the legal framework of the Customs Union is posted on the official website of the Eurasian Economic Commission. http://www.eurasiancommission .org Agreements approved by decisions of the Interstate Council of the Eurasian Economic Community (the highest body of the Customs Union) are most often used in law enforcement practice:

- Agreement on determining the Customs value of goods transported across the Customs Border of the Customs Union dated January 25, 2008 (ratified by the Law of the Republic of Kazakhstan dated February 23, 2009 No. 139-IY);

- Agreement on Common Customs and Tariff Regulation dated January 25, 2008 (ratified by the Law of the Republic of Kazakhstan dated November 18, 2008 No. 81-IY);

- Agreement on Common Non-tariff Regulatory Measures for Third Countries dated January 25, 2008 (ratified by the Law of the Republic of Kazakhstan dated November 18, 2008 No. 82-IV);

- Agreement on Common Rules for determining the Country of Origin of Goods dated January 25, 2008 (ratified by the Law of the Republic of Kazakhstan dated February 17, 2009 No. 136-IV);

- Agreement on the procedure for movement of goods for personal use by individuals across the customs border of the Customs Union and customs operations related to their release dated June 18, 2010 (ratified by the Law of the Republic of Kazakhstan dated June 30, 2010 No. 314-IY);

- Agreement on free (special, special) economic zones in the customs territory of the Customs Union and the customs procedure of the Free customs zone dated June 18, 2010 (ratified by the Law of the Republic of Kazakhstan dated June 30, 2010 No. 312-IY);

- Agreement on the Establishment and application in the Customs Union of the procedure for crediting and distributing import customs duties (other duties, taxes and charges having equivalent Effect) dated May 21, 2010 (ratified by the Law of the Republic of Kazakhstan dated June 30, 2010 No. 303-IY).

Decisions of the Customs Union Commission (hereinafter referred to as the CCC; abolished with the transfer of powers to the Eurasian Economic Commission on February 2, 2012) regulating customs relations in the Customs Union.

The CCC solutions catalog is published on the official website of the Eurasian Economic Commission. Considering that the CCC has adopted 920 decisions, we consider it necessary to highlight the following in connection with the generalization carried out:

- CCC Decision No. 130 dated November 27, 2009 "On the Unified Customs Tariff Regulation of the Customs Union of the Republic of Belarus, the Republic of Kazakhstan and the Russian Federation";

- CCC Decision No. 255 dated May 20, 2010 "On the Procedure for Making Changes and (or) Additions to the Goods Declaration after the Release of Goods";

-CCC Decision No. 260 dated May 20, 2010 "On Forms of Customs documents";

- CCC Decision No. 258 dated May 20, 2010 "On the Procedure for Conducting Customs Expertise during Customs Control";

- CCC Decision No. 375 dated September 20, 2010 "On certain issues of Customs Procedures";

- CCC Decision No. 376 dated September 20, 2010 "On Procedures for Declaring, Controlling and Adjusting the Customs Value of Goods";

- CCC Decision No. 378 dated September 20, 2010 "On Classifiers used to fill out Customs declarations";

- CCC Decision No. 522 dated January 28, 2011 "On the Regulation on the Procedure for Applying the Unified Commodity Nomenclature of Foreign Economic Activity of the Customs Union in the Classification of Goods";

- CCC Decision No. 850 dated November 18, 2011 "On the new Edition of the Common Commodity Nomenclature for Foreign Economic Activity of the Customs Union and the Common Customs Tariff of the Customs Union" (effective from January 1, 2012);

- CCC Decision No. 851 dated November 18, 2011 "On Explanations to the Unified Commodity Nomenclature of Foreign Economic Activity of the Customs Union".

Decisions of the Eurasian Economic Commission (hereinafter referred to as the EEC; it has been in operation since February 2, 2012) regulating customs relations in the Customs Union.

The catalogue of decisions of the EEC Council and the catalogue of decisions of the EEC Board are posted on the official website of the EEC.

The most relevant issues in resolving disputes of the generalized category are:

- Decision of the EEC Council of July 16, 2012 No. 54 "On Approval of the Common Commodity Nomenclature of Foreign Economic Activity of the Customs Union and the Common Customs Tariff of the Customs Union";

- Decision of the EEC Board dated October 30, 2012 No. 202 "On the application of methods for determining the Customs value of goods based on the transaction value of identical goods (Method 2) and the transaction value of similar goods (Method 3)";

- Decision of the Board of the EEC dated November 13, 2012 No. 214 "On the application of the method of subtraction (method 4) in determining the customs value of goods";

- Decision of the Board of the EEC dated December 12, 2012 No. 273 "On the application of the addition method (method 5) in determining the customs value of goods";

- Decision of the Board of the EEC of December 20, 2012 No. 283 as amended on March 26, 2013 No. 53 "On the application of the method of determining the customs value of goods based on the transaction value of imported goods (Method 1)";

- Decision of the Board of the EEC dated March 12, 2013 No. 39 "On the application of Explanations to the Unified Commodity Nomenclature of Foreign Economic Activity of the Customs Union."

The national customs legislation is represented by the following regulations:

The Code of the Republic of Kazakhstan "On Customs Affairs in the Republic of Kazakhstan" (hereinafter – the Customs Code of the Republic of Kazakhstan);

Regulatory legal acts, the adoption of which is provided for in the Code "On Customs Affairs in the Republic of Kazakhstan", in particular:

- Resolution of the Government of the Republic of Kazakhstan dated October 12, 2010 No. 1058 "On approval of the Rules for Customs clearance of goods by Customs officials";

- Resolution of the Government of the Republic of Kazakhstan dated November 3, 2010 No. 1149 "On approval of the Rules for the application of the Risk Management System in the Customs authorities of the Republic of Kazakhstan";

- Resolution of the Government of the Republic of Kazakhstan dated September 8, 2010 No. 912 "On approval of Forms of decisions on the classification of goods, on the classification of goods in an unassembled form and making a preliminary decision on determining the country of origin of goods when applying preferential and non-preferential regimes";

- Resolution of the Government of the Republic of Kazakhstan dated January 21, 2011 No. 24 "On approval of the rates of customs duties levied by Customs authorities";

- Resolution of the Government of the Republic of Kazakhstan dated November 23, 2010 No. 1229 "On certain issues of transfer and accounting of receipts of customs duties, taxes, customs duties and penalties";

- Resolution of the Government of the Republic of Kazakhstan dated October 4, 2010 No. 1016 "On approval of the Rules for sampling and sampling of goods by Customs officials";

- Order of the Minister of Finance of the Republic of Kazakhstan dated July 17, 2010 No. 357 "On approval of the Notification form for repayment of arrears on Customs payments, taxes and penalties";

- Order of the Minister of Finance of the Republic of Kazakhstan dated July 29, 2010 No. 383 "On approval of the forms of prescribing an on-site customs inspection and the requirement to eliminate violations";

- Order of the Minister of Finance of the Republic of Kazakhstan dated July 16, 2010 No. 356 "On approval of the Rules for maintaining the Customs Register of Intellectual Property Objects".

Disputes involving customs authorities were considered by both courts of general jurisdiction and specialized interdistrict economic courts (hereinafter referred to as the economic court) under the jurisdiction established by Chapter 3 of the CPC, depending on the status of the other party to the case – a participant in foreign economic activity (an individual, an individual entrepreneur, a legal entity, as well as an entity that is not a legal entity face).

 

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