Judicial practice of considering disputes related to violations of tax legislation

According to subparagraph 1) of paragraph 1 of Article 18 of the Tax Code, the main task of the tax authorities is to ensure the completeness and timeliness of taxes and other mandatory payments to the budget.

In accordance with subparagraph 12) of paragraph 1 of Article 19 of the Tax Code, tax authorities have the right to file lawsuits in courts for invalidation of transactions, liquidation of a legal entity on the grounds provided for in subparagraphs 1) and 2) of paragraph 2 of Article 49 of the Civil Code of the Republic of Kazakhstan, as well as other lawsuits in accordance with the legislation of the Republic of Kazakhstan.

According to paragraph 1 of Article 26 of the Tax Code, a taxpayer's obligation to the state is recognized as an obligation arising in accordance with the tax legislation of the Republic of Kazakhstan, by virtue of which the taxpayer is obliged to register with the tax authority, determine the objects of taxation and (or) objects related to taxation, calculate and pay taxes and other mandatory payments to the budget, as well as advance and current payments on them, draw up tax forms, submit tax forms, with the exception of tax registers., to the tax authority in due time.

In accordance with Articles 405, paragraph 1 of Article 403 and paragraphs 1,2,3 of paragraph 1 of Article373, paragraph 1 of Article 365 of the Tax Code, individuals who own taxable objects are taxpayers of property tax and land tax, vehicles.

The object of taxation on the property of individuals is dwellings, buildings, country houses, garages and other buildings, structures, premises belonging to them by right of ownership, and objects of unfinished construction from the moment of residence, operation, located on the territory of the Republic of Kazakhstan. Part 7 of Article 409 of the Tax Code stipulates that the payment of personal property tax is made to the budget at the location of the taxable objects no later than October 1 of the reporting tax period.

Land tax payers are individuals who have objects of taxation: on the right of ownership, on the right of permanent use, on the right of primary gratuitous temporary land use.

In accordance with Part 3 of Article 391 of the Tax Code, individuals pay to the budget the land tax calculated by the tax authorities no later than October 1 of the current year.

For individuals, the deadline for paying tax to the budget on vehicles according to Part 3 of Article 369 of the Tax Code is no later than December 31 of the tax period. The tax is paid at the place of registration of the taxable objects.

35 of the Constitution of the Republic of Kazakhstan, the payment of legally established taxes, fees and other mandatory payments is the duty and obligation of everyone.

Article 622 of the Tax Code establishes that in the event of non-payment or incomplete payment of tax arrears by an individual who is not an individual entrepreneur, a private notary, a private bailiff, or a lawyer, the tax authority applies to the court with an application for a court order or a claim to recover the amounts owed at the expense of his property.

According to subparagraph 32) of paragraph 1 of Article 12 of the Tax Code, tax arrears are defined as the amount of arrears, as well as unpaid amounts of penalties and fines. Tax, like any other duty, is terminated by proper execution. The fulfillment of a tax obligation is considered to be the payment in full and on time.

According to the general rule of tax regulations, a taxpayer is obliged to independently fulfill the obligation to pay taxes.

At the same time, the deadline for fulfilling a tax obligation is established by the tax legislation in relation to a specific tax.

According to article 32 of the Tax Code, tax authorities are required to first calculate the tax withheld at the source of payment and send a written notification to the taxpayer. A notification, in accordance with paragraph 1 of Article 607 of the Tax Code, is a notification sent by a tax service body to a taxpayer on paper or with his written consent electronically about the need for the latter to fulfill a tax obligation. The notification forms are established by the authorized body.

At the same time, all notifications that can be issued by the tax authorities are limited to the types listed in paragraph 2 of Article 607 of the Tax Code. Notifications, depending on their type, are sent by the tax authorities to the taxpayer within the time limits provided for in paragraph 2 of Article 607 of the Tax Code and a number of other articles.

The notification must also be delivered to the taxpayer personally against signature or in any other way confirming the fact of sending and receiving, unless otherwise provided by art.608 of the Tax Code.

In this case, a notification sent by one of the following methods is considered to have been served to the taxpayer (tax agent) in the following cases:: by registered mail with a notification - from the date of the taxpayer's (tax agent's) mark in the notification to the postal or other communication organization; electronically - from the date of delivery of the notification by the tax authority to the web application.

This method applies to a taxpayer registered as an electronic taxpayer in accordance with the procedure established by Article 572 of the Tax Code. After receiving the notification, the taxpayer must independently execute it within the time period stipulated by the tax legislation.

In case of agreement with the notification, the taxpayer is obliged to comply with it, i.e. transfer the specified amounts to the state revenue.

If there is no voluntary execution of the notification, the tax authorities may apply to the court.

However, the failure of taxpayers to fulfill their obligations to pay taxes within the above-mentioned time limits led to the application of the tax authorities to the court with applications for a court order to recover arrears of taxes and other mandatory payments from individuals and with claims for the collection of tax arrears.

From the contents of the application for the issuance of a court order and a statement of claim, it can be seen that the tax service authorities have served notices of payment of the calculated tax within the time limits specified in the notification.

Article 12 of the Tax Code defines that arrears are calculated, accrued and unpaid amounts of taxes and other mandatory payments to the budget, including advance and (or) current payments for other taxes, with the exception of amounts reflected in the notification of the results of the tax audit during the appeal period in accordance with the procedure established by the legislation of the Republic of Kazakhstan. in the contested part.

The compulsory collection of tax arrears and penalties is directly provided for in the rules of law. The Tax Code not only establishes requirements for decisions of tax authorities on the collection of arrears and penalties at the expense of the taxpayer's property and the procedure for their presentation for collection, but also regulates in some detail the procedure for their enforcement.

The claims of a tax authority may be satisfied by a judge or court only if the amount of taxes and other mandatory payments to the budget is calculated by the taxpayer himself in the tax return or in accordance with the norms of the Tax Code by the tax authority or an authorized state body, or accrued by the tax authority in a legally binding notification of the results of a tax audit.

In respect of individuals, the tax service authorities have the right to file applications to the court for a court order and claims for arrears and penalties.

Paragraphs 1, 1-1, 1-2 of Article 608 of the Tax Code establish cases when a notification sent by one of the 7 methods listed in them is considered to have been handed over to a taxpayer (tax agent).

When accepting and considering applications from tax authorities for the recovery of arrears, the courts are required, in accordance with the norms of the CPC RK, to check whether all documents confirming the stated claim have been provided.

First, it is necessary to require evidence from tax and other authorities on the correct calculation of arrears so that the court can verify them.

Secondly, duly certified copies of the notices and evidence of their delivery to the defendants must be provided.

Paragraph 4 of Article 31 of the Tax Code obliges the tax authority to deliver the notification to the taxpayer (representative) personally against signature or in any other way confirming the fact of sending and receiving. Only after providing the specified package of documents is it possible to resolve the issue of collecting arrears in court.

In accordance with Articles 405, paragraph 1 of Article 403 and paragraphs 1,2,3 of paragraph 1 of Article373, paragraph 1 of Article 365 of the Tax Code, individuals who own taxable objects are taxpayers of property tax and land tax, vehicles.

The object of taxation on the property of individuals is dwellings, buildings, country houses, garages and other buildings, structures, premises belonging to them by right of ownership, and objects of unfinished construction from the moment of residence, operation, located on the territory of the Republic of Kazakhstan.

Part 7 of Article 409 of the Tax Code stipulates that the payment of personal property tax is made to the budget at the location of the taxable objects no later than October 1 of the reporting tax period.

Land tax payers are individuals who have objects of taxation: on the right of ownership, on the right of permanent use, on the right of primary gratuitous temporary land use.

In accordance with Part 3 of Article 391 of the Tax Code, individuals pay to the budget the land tax calculated by the tax authorities no later than October 1 of the current year.

Thus, the State Revenue Directorate for the city of Stepnogorsk of the Department of State Revenue for the Akmola Region of the State Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan (hereinafter referred to as the State Revenue Directorate) filed a lawsuit against Remishevsky A.V., arguing that the defendant owns property, but did not pay tax for it. property tax for 2014, which led to the formation of tax arrears in the amount of 293 tenge, including property tax of 251 tenge, a penalty of 20 tenge, and land tax of 12 tenge, the penalty is 10 tenge.

The court found that according to the notification on the elimination of violations of the tax legislation of the Republic of Kazakhstan dated December 14, 2014 No. 09000171306, the defendant was notified of the accrual and the need to pay the outstanding taxes and other mandatory payments to the budget: property tax (KBK 104102) in the amount of -251 tenge, penalty 20 tenge, land tax (KBK 104302) in the amount of 12 tenge, the penalty is 10 tenge.

The specified notification was served to the respondent taxpayer.

The defendant has not paid the tax arrears within the time limit set by the notification.

In accordance with Article 610 of the Tax Code, a penalty is charged on the amount of the overdue tax liability for each day of delay in fulfilling the tax obligation, starting from the day following the due date of tax and other mandatory payment to the budget, including the day of payment to the budget in the amount of 2.5 times the official refinancing rate established by the National Bank of the Republic of Kazakhstan on every day is overdue.

As follows from the notice of debt accrual submitted to the court, the debt was calculated by the tax authority on the basis of data on the registration of property for the defendant.

The defendant did not appeal the specified notification. The amount of the penalty for each day of delay since October 01, 2014 was 20 tenge for property tax and 10 tenge for land tax. The amount of the penalty is calculated in accordance with the requirements of the current legislation.

In such circumstances of the case, the court legitimately satisfied the claim of the tax authority for the recovery of tax arrears and penalties.

The Department of State Revenue for Taldykorgan (hereinafter referred to as the Department) filed a lawsuit against G.G. Belyanskaya with this claim, arguing that, according to the Department of Justice of the Almaty region, the defendant bought an apartment in accordance with the sale agreement dated 01/20/2009 No. 1-132, located at: Almaty, Auezovsky district, ul.Zhubanova, 13, 37A block, and on the basis of a purchase and sale agreement dated 02.27.2009, she sold this property for 2295,000 tenge.

According to clauses 3, clauses 1, Articles 185 and 186 of the Tax Code, the defendant, having received property income from the increase in value in the amount of 2295,000 tenge, was required to submit an individual income tax return for 2009 no later than March 31, 2010. Also, in accordance with paragraph 1 of Article 158 of the Tax Code, the defendant was required to pay individual income tax in the amount of 229,500 tenge (at the rate of 2295,000 x 10%).

In addition, he asked to collect a fine from the defendant in accordance with paragraph 3 of Article 610 of the Tax Code of the Republic of Kazakhstan, for each day of delay in the amount of 2.5 times the official refinancing rate established by the National Bank of the Republic of Kazakhstan as of 11/27/2014, a fine in the amount of 167590 tenge was accrued.

In accordance with clause 1, clause 1, Article 180 of the Tax Code of the Republic of Kazakhstan, the taxpayer's property income subject to taxation includes income from value gains from the sale of property.

According to clauses 1, 2 of Articles 180-1 of the Tax Code, income from value gains from the sale of property by an individual arises from the sale of dwellings, country buildings, garages, and personal subsidiary farm facilities owned for less than a year from the date of registration of ownership.

The income from the increase in value in the sale of property is the positive difference between the price (cost) of the sale of property and the price (cost) of its acquisition. By virtue of Article 158 of the Tax Code, a taxpayer's income is taxed at a rate of 10 percent.

The court found that G.G. Belyanskaya purchased an apartment at the address: Almaty, Auezovsky district, Zhubanova str., 13, 37A block, sale and purchase agreement dated 20.01.2009, registered ownership of the property on 20.01.2009 and sold this property on the basis of a purchase and sale agreement dated 27.02.2009 for 2295,000 tenge, i.e. until the expiration of one year after the registration of ownership rights.

The defendant did not fulfill his tax obligations in a timely manner, namely, he did not submit an individual income tax declaration, and he also did not pay an individual income tax in the amount of 229,500 tenge.

In accordance with Article 26 of the Tax Code of the Republic of Kazakhstan, a taxpayer's obligation to the state is recognized as an obligation arising in accordance with the tax legislation of the Republic of Kazakhstan, by virtue of which the taxpayer is obliged to register with the tax authority, determine the objects of taxation and (or) objects related to taxation, calculate and pay taxes and other mandatory payments in accordance with the tax legislation of the Republic of Kazakhstan. prepare the budget, prepare tax forms, and submit tax forms, with the exception of tax registers, to the tax authority within the prescribed time frame.

In case of non-fulfillment or improper fulfillment of a tax obligation, the state, represented by the tax service authority, has the right to require the taxpayer (tax agent) to fulfill his tax obligation in full, to apply methods to ensure it and measures of enforcement.

In addition, according to paragraph 3 of Article 610 of the Tax Code of the Republic of Kazakhstan, for each day of delay in fulfilling a tax obligation, starting from the day following the deadline for payment of taxes and other mandatory payments to the budget, including the day of payment to the budget, a penalty is charged in the amount of 2.5 times the official refinancing rate established by the National Bank of the Republic of Kazakhstan, which, according to the The amount calculated was 167590 tenge, which is also subject to collection.

Thus, the court reasonably satisfied the claims of the tax authority.

In accordance with paragraph 2 of Article 9 of the Land Code of the Republic of Kazakhstan, a fee is charged for the use of land plots provided by the state for temporary paid land use (lease).

The procedure for calculating and paying fees for the use of land plots to budget revenue is determined in accordance with the tax legislation of the Republic of Kazakhstan.

According to paragraph 1 of Article 477 of the Tax Code, a fee for the use of land plots (hereinafter referred to as the fee) is charged for the provision of land plots by the state for temporary paid land use (lease).

In accordance with paragraph 1 of Article 478 of this Code, payers of fees are individuals and legal entities who have received a land plot for temporary paid land use (lease).

At the same time, according to paragraph 6 of Article 481 of the above Code, individuals who are not individual entrepreneurs pay the amounts of fees no later than February 25 of the reporting tax period.

According to Article 26 of the above-mentioned Code, a taxpayer's obligation to the state is recognized as an obligation arising in accordance with the tax legislation of the Republic of Kazakhstan, by virtue of which the taxpayer is obliged to register with the tax authority, determine the objects of taxation and (or) objects related to taxation, calculate and pay taxes and other mandatory payments on them, tax forms, submit tax forms, with the exception of tax registers, to the tax authority within the prescribed time.

By virtue of Article 31, paragraphs 1,2 of the above Code, it is stipulated that, in fulfillment of a tax obligation, a taxpayer performs the following actions:: 1. Gets registered with the tax authority,

2. Keeps records of taxable objects and (or) objects related to taxation.

Meanwhile, in accordance with Article 118 of the Civil Code of the Republic of Kazakhstan, it is stipulated that the right of ownership, the right of economic management, the right of operational management, the right of land use for a period of more than a year, the right of use for a period of more than a year, the pledge of real estate, rent on immovable property, the right of trust management arise from the moment of state registration.

In accordance with Article 43, paragraph 9 of the Land Code of the Republic of Kazakhstan, identification documents for a land plot issued by authorized bodies of regions, cities of republican significance, the capital, districts, cities of regional significance are:

In case of private ownership of a land plot – an act on the right of private ownership of a land plot, In case of permanent land use – an act on the right of permanent land use, In case of temporary paid land use (lease) – an act on the right of temporary paid (long-term, short-term) land use (lease).

Baizhomartov B. has title documents for a land plot, on the basis of which citizens have corresponding rights to a land plot (the right of temporary paid land use lease for a period of 10 years).

The legal documents for a land plot are documents reflecting the identification characteristics of the land plot, issued by the authorized body for land relations to land owners and land users on the basis of title documents.

The legal documents include an act on the right of private ownership of a land plot, an act on the right of permanent land use and an act on the right of temporary (paid, gratuitous) land use.

The legal documents are issued only by the authorized body on land relations.

According to the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 6 dated July 16, 2007, with amendments and additions thereto "On certain issues of the application of land legislation by courts", paragraph 7 provides that, in accordance with art.118 of the Civil Code of the Republic of Kazakhstan, ownership and other property rights to immovable property, restrictions on these rights, their occurrence, transfer and termination are subject to mandatory state registration.

The right of private ownership, the right of land use for a period of more than a year, the pledge of land plots or the right of land use, easement and other property rights to a land plot arise from the moment of state registration.

Thus, in violation of these norms, Baizhomartov B.U. has not registered a contract (the right of temporary paid land use) with the registration authority. Thus, the demands were made prematurely.

In such circumstances, the court legitimately concluded that the plaintiff's claims of the Aktobe City Tax Administration to Baizhomartov B.U. for the recovery of the amount of tax in the amount of 10,966,092 tenge, and penalties in the amount of 1,294,000 tenge, are unjustified and cannot be satisfied.

For example, the Department of State Revenue for the city of Stepnogorsk of the Department of State Revenue for the Akmola region of the State Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan (hereinafter referred to as the Department of State Revenue) filed a lawsuit against R.I. Shaimerdenov for tax debt collection, indicating that R.I. Shaimerdenov, owning property, did not make the payment property tax, land tax for 2014, which led to the formation of a tax debt in the amount of 320 tenge for property, land tax 26 tenge.

In accordance with paragraph 3) paragraph 2 of Article 403 of the Tax Code, taxpayers of the property tax of individuals are not participants in the Great Patriotic War and persons with disabilities of groups 1 and 2 who are equivalent to them, within 1,500 times the monthly calculation index established for the relevant financial year by the law on the republican budget and effective on January 1 of the relevant financial year. of the total value of all taxable objects owned by the right of ownership.

From the certificate No. 221740 dated November 11, 1982, it can be seen that R.I. Shaimerdenov was recognized as a disabled person of the first group, indefinitely.

The defendant is a disabled person of the first group and has been a recipient of a disability pension since 1982.

The amount of tax arrears submitted by the plaintiff does not exceed 1,500 times the monthly calculation index.

Under these circumstances, the defendant, by virtue of the requirements of paragraph 3, Part 2 of Article 403 of the Tax Code, is not a property tax payer, in this regard, the Stepnogorsk City Court's decision of February 25, 2015 lawfully denied the claim filed by the tax authority.

Sources of tax legislation.

According to paragraph 1 of Article 2 of the Tax Code, the tax legislation of the Republic of Kazakhstan is based on the Constitution of the Republic of Kazakhstan, consists of the Tax Code and other legal acts, the adoption of which is provided for by this Code.

Such regulatory legal acts include regulatory Government resolutions, regulatory legal orders from the head of an authorized state body in the tax service system, and regulatory legal decisions of local representative bodies on setting individual tax rates and other mandatory payments to the budget.

The main regulatory acts regulating relations arising from disputes related to violations of tax legislation (on claims of tax authorities for the collection of taxes and fees from an individual) are:

1. The Constitution of the Republic of Kazakhstan The Constitution of the Republic of Kazakhstan defines the starting point of tax law – the obligation of everyone to pay legally established taxes.

2. The Code of the Republic of Kazakhstan on Taxes and Other Mandatory Payments to the Budget (the Tax Code) (hereinafter referred to as the Tax Code).

The Tax Code of the Republic of Kazakhstan is designed to be applied as a direct-acting regulatory legal act, excluding the elaboration or clarification of subordinate regulations. The NC structure consists of three parts:

1. General - it defines the principles of the formation of tax legislation.

2. Special – it contains the methodology and tax bases.

3. Tax administration - contains procedural issues.

3. International agreements. In accordance with paragraph 5 of Article 2 of the Tax Code, if an international treaty ratified by the Republic of Kazakhstan establishes rules other than those contained in the Tax Code, the rules of the said treaty shall apply.

Today, the most common types of international treaties on taxation are bilateral intergovernmental treaties - Conventions on the Elimination of Double Taxation and the Prevention of Tax Evasion. In the practice of concluding international agreements on taxation in the Republic of Kazakhstan, there are also cases of concluding multilateral international agreements.

All the above-mentioned agreements (there are more than 100 of them) are available in the regulatory framework "Legislation", therefore it makes no sense to list them. 4. The Law of the Republic of Kazakhstan "On regulatory legal acts".

This law regulates the general rules for the operation of regulatory legal acts.

By virtue of paragraph 1 of Article 30, paragraph 6 of Article 36 of the Law of the Republic of Kazakhstan "On Normative Legal Acts", the official publication of normative legal acts concerning the rights, freedoms and duties of citizens is a prerequisite for their application and implementation.

Paragraph 1 of article 38 of the said Law stipulates that the normative legal acts of state bodies listed in subparagraph 4) of paragraph 2 of article 36, which have a generally binding meaning concerning the rights, freedoms and duties of citizens, cannot be put into effect without state registration with the judicial authorities.

In accordance with Article 9 of the Tax Code, regulatory legal acts regulating taxation issues are subject to mandatory publication in official publications.

Courts may not apply regulatory legal acts that do not comply with the specified conditions when considering tax disputes. 5. Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 1 dated February 27, 2013 "On judicial practice of tax legislation application".

In accordance with the Unified Classifier of Categories of Cases in courts, the generalization of judicial practice in dealing with disputes related to violations of tax legislation includes: generalization of judicial practice - on claims of tax authorities for the collection of taxes and fees from an individual; - on claims of tax authorities for the collection of taxes and fees from a legal entity; - on claims of individuals to the tax authorities; - on claims of legal entities to the tax authorities; - on claims of tax authorities for the liquidation of a legal entity (termination of the activity of an individual entrepreneur).

Features of tax disputes. The concept of tax legislation.

It is necessary to focus on general issues of tax law - characteristics of tax legislation, tax legal relations.

In accordance with the requirements of Article 1 of the Code of the Republic of Kazakhstan On Taxes and Other Mandatory Payments to the Budget (the Tax Code) (hereinafter referred to as the Tax Code), tax relations are power relations for the establishment, introduction and procedure for calculating and paying taxes and other mandatory payments to the budget, as well as relations between the state and the taxpayer related to fulfillment of tax obligations. Therefore, a tax legal relationship is a social relationship that arises on the basis of the implementation of tax law norms.

At the same time, it is necessary to distinguish the difference between tax and civil legal relations. This difference lies in the power-property nature of the tax legal relationship. This difference is indicated in paragraph 4 of Article 1 of the Civil Code of the Republic of Kazakhstan, which establishes that civil legislation does not apply to property relations based on administrative or other authority subordination of one party to another, including tax and other budgetary relations, except in cases provided for by legislative acts.

These relations are regulated by the Constitution of the Republic of Kazakhstan, the Tax Code of the Republic of Kazakhstan, as well as other acts of the tax legislation of the Republic of Kazakhstan and other sources of the current law of the Republic of Kazakhstan.

             The objects of taxation are vehicles, with the exception of trailers, subject to state registration and (or) registered in the Republic of Kazakhstan. In accordance with the Law of the Republic of Kazakhstan dated December 5, 2013 on vehicle tax, the main additions concerned Articles 365 and 367 of the Tax Code.

Starting from January 1, 2014, the privileges for certain categories of individuals specified in subparagraphs 4-6 of paragraph 3 of Article 365 of the Tax Code for passenger cars with an engine capacity of over 4,000 cubic meters were canceled. see, which were registered (re-registered) with authorized bodies after December 31, 2013.

A study of judicial acts has shown that the courts have developed an unambiguous practice of considering these cases.

When considering the case, the courts took into account that the emergence and termination of ownership rights in respect of movable and immovable property is established according to the norms of civil law, and tax obligations and procedures applied in this case are regulated by the norms of tax legislation.

For example, the State Institution "Tax Administration of Almaty" to S.Boldyreva on the collection of vehicle tax arrears from individuals.

The court found that, on the basis of Article 367 of the Tax Code, the tax committee charged S. Boldyreva a vehicle tax for 2013 in the amount of 1,457 tenge, for 2014 in the amount of 3,024 tenge, which, by virtue of Article 369 paragraph 3 of this Code, had to be paid before October 1 of the tax period.

However, the defendant did not voluntarily pay this amount of debt in a timely manner. The defendant's arguments that he alienated the 2011 car to another person and that ownership of the car has been terminated since that time were legitimately disregarded by the court.

In accordance with Articles 235, 238.239 of the Civil Code, the right of ownership of the acquirer of property arises from the moment of transfer of property, unless otherwise established by contract or legislative acts. With regard to a vehicle, the "Rules of State Registration of Vehicles and trailers in the Republic of Kazakhstan", approved by Order of the Minister of Internal Affairs No. 343 dated November 12, 1998, provide for certain procedures for the alienation of vehicles.

These procedures provide for the removal of a vehicle from the registration register and the delivery of state numbers and a technical passport for the vehicle.

The defendant, Bolodyreva S., did not provide adequate evidence confirming the validity of her claims about the alienation of the car, since the specified vehicle was registered behind her.

So, according to the certificate of the MORER DP of the Department of Internal Affairs, the vehicle of the brand is registered with the defendant, which the defendant himself does not deny. In such circumstances, the defendant, being the owner of the car, is a vehicle tax payer. Based on the above, the court satisfied the claim reasonably.

Due to the circumstances of another case, the taxpayer disposed of the vehicle, but did not remove it from the registration register with the UDP in time.

The taxpayer believed that he was not obligated to pay a transport tax, since there was no object of taxation – a vehicle.

However, the tax authorities deducted the tax, indicating that this vehicle existed in the registration system. The courts have a clear position on this issue.

The courts correctly pointed out that, by virtue of Articles 366, 367, 368 and 369 of the Tax Code, the definition of an object of taxation is based on information about vehicles contained in the registration register of the UDP, therefore, until the relevant information is excluded from the accounting system, the vehicle is an object of taxation.

This position seems to be correct, since the fact of the disposal of the vehicle is not a sufficient reason for the termination of the obligation to pay taxes. The courts of the republic reasonably apply the norms of subparagraph 5) of part 3 of Article 365 of the Tax Code.

According to paragraph 5 of Part 3 of Article 365 of the Tax Code, they are not vehicle tax payers.: persons with disabilities who own motorized trolleys and cars - one vehicle each, which is subject to taxation.

The defendants' disability is confirmed by a pension certificate, according to which the defendants are recipients of a disability pension.

In these circumstances, the defendants, by virtue of the requirements of paragraph 5, Part 3 of Article 365 of the Tax Code, are not vehicle tax payers, in this regard, the courts lawfully denied the claim filed by the tax authority.

Tax authorities' claims for collection of taxes and fees from a legal entity

Proper fulfillment by a taxpayer of a tax obligation within the time limits established by tax legislation is a necessary and sufficient condition for the proper fulfillment of a tax obligation, terminates the tax obligation in connection with the realization by the parties of all their rights and obligations towards each other and the achievement of the purpose of the existence of the tax obligation.

The application of the methods established by the tax legislation of the Republic of Kazakhstan to ensure the fulfillment (Article 609 of the Tax Code) of a taxpayer's (tax agent's) tax obligation will be lawful only if the tax obligation is not fulfilled within the established time frame.

It is precisely the violation of the deadline for fulfilling an obligation that is a prerequisite for the use of methods to ensure the fulfillment of a taxpayer's (tax agent's) tax obligation.

In accordance with paragraph 1 of Article 18 of the Tax Code, the tax authorities are tasked with ensuring the completeness of tax receipts and other mandatory payments to the budget.

The ways to ensure the fulfillment of a tax obligation that has not been fulfilled on time, and the measures of compulsory collection of tax arrears are provided for in Chapters 85-86 of the Tax Code, the list of taxes and other mandatory payments to the budget is established by Article 55 of the Code.

The current regulations of the legislator on the procedure for applying methods to ensure the fulfillment of a tax obligation that has not been fulfilled within the prescribed period, and on subjects to which methods of enforcement can be applied, have eliminated a number of contradictions and inaccuracies in tax legislation.

The methods of securing obligations are in the nature of a public law establishment provided for directly by the tax Code and are put into effect by a unilateral act of the tax authority.

If there is a sufficient reason, that is, if the taxpayer (tax agent) violates the deadline for fulfilling the tax obligation, the tax authorities are required to apply methods to ensure the fulfillment of the tax obligation.

The methods of ensuring the fulfillment of a tax obligation that has not been fulfilled on time, except for the accrual of penalties on the unpaid amount of taxes and other mandatory payments to the budget, are applied within the time limits established by Articles 611-613 of the Tax Code.

The methods of ensuring the fulfillment of a tax obligation that has not been fulfilled on time must be applied in strict compliance with the provisions of Article 609 of the Tax Code and other provisions of tax legislation related to this provision, together with which the provisions of Articles 611-613 of the Tax Code form a mandatory completed regulatory order.

Prior to the beginning of the application of methods to ensure the fulfillment of a tax obligation that has not been fulfilled on time, except for the accrual of penalties on the unpaid amount of taxes and other payments to the budget, a notification is sent to the taxpayer (tax agent), which, in accordance with paragraph 1 of Article 607 of the Tax Code – a notification sent by a tax service body to a taxpayer (tax agent) on paper or with his written consent electronically about the need for the latter to fulfill a tax obligation, obligations to calculate, withhold and transfer mandatory pension contributions, calculation and payment of social contributions is recognized.

The notification forms are established by the authorized body. Other documents received from the tax authorities cannot be considered as notifications for the purposes of applying methods to ensure the fulfillment of a tax obligation, and, accordingly, their non-fulfillment does not entail the legal consequences provided for in the above article.

The notification must be delivered to the taxpayer (tax agent) personally against signature or in any other way confirming the fact of sending and receiving.

After receiving the notification, the taxpayer must independently execute it within the time period stipulated by the tax legislation.

In case of agreement with the notification, the taxpayer is obliged to comply with it, i.e. transfer the specified amounts to the state revenue.

If there is no voluntary execution of the notification, the tax authorities may apply to the court or apply compulsory collection of tax arrears.

According to subparagraph 25 of paragraph 1 of Article 20 of the Tax Code, the tax authorities are obliged to collect the taxpayer's tax debts in a compulsory manner, i.e. by using their authority to take measures to forcibly collect tax debts.

These measures of compulsory collection of tax arrears are applied only to taxpayers (tax agents) defined in paragraph 1 of Article 614 of the Tax Code, which does not include individuals.

The issuance of court orders against legal entities is contrary to the norms of the Tax Code, as indicated in the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated February 27, 2013 No. 1 "On Judicial practice in the application of tax legislation" (hereinafter -NP).

Thus, according to paragraph 13 of the NP, the norms of the Tax Code fully ensure the possibility of collecting tax debts from taxpayers specified in paragraph 1 of Article 614 of the Tax Code in an out-of-court manner.

Therefore, the claims of the tax authorities for the recovery of arrears in taxes and other mandatory payments to the budget of penalties from these persons are not subject to consideration and resolution in civil proceedings.

Taking into account paragraph 3 of Article 6 of the Law of the Republic of Kazakhstan "On Regulatory Legal Acts", the provision of part 1 of Article 139 and subparagraph 5) of Article 140 of the CPC regarding the issuance of a court order to recover arrears in taxes and other mandatory payments from legal entities cannot be applied.

This provision contradicts the above-mentioned norms of the Tax Code, which provide for the powers of tax authorities to collect tax debts.

In this regard, the norms of the Tax Code, which was put into effect later than the CPC, should be applied.

However, if there is no or insufficient property in the territory of the Republic of Kazakhstan to repay the non-resident's tax debts incurred as a result of activities in the Republic of Kazakhstan through a permanent establishment, the tax authorities have the right to apply to the court with an application for a court order or with a claim to recover the specified debt from the non-resident.

In this case, it is necessary to proceed from paragraph 1 of Article 4 of the Agreement on the Procedure for Resolving Disputes Related to Business Activities (Kiev, March 20, 1992) and part 3 of Article 32 of the CPC.

According to paragraph 1 of Article 4 of the "Agreement on the Procedure for Resolving Disputes related to the conduct of economic activities" (Kiev, March 20, 1992), ratified by the Resolution of the Supreme Council of the Republic of Kazakhstan dated July 02, 1992, the competent court of the State party of the Commonwealth of Independent States has the right to consider the disputes referred to in Article 1 of this Agreement, if in the territory of this State-a member of the Commonwealth of Independent States: a) the defendant had a permanent place of residence or location on the day the claim was filed.

If several defendants are involved in the case located on the territory of different member states of the Commonwealth, the dispute is considered at the location of any defendant at the plaintiff's choice; b) commercial, industrial or other economic activities of the defendant's enterprise (branch) are carried out.;

c) the obligation from the contract that is the subject of the dispute has been fulfilled or must be fulfilled in whole or in part.;

d) an action or other circumstance has taken place that served as the basis for a claim for damages; e) the plaintiff has a permanent place of residence or location in a claim for the protection of business reputation;

f) there is a counterparty-a supplier, contractor or service provider (performing work) and the dispute concerns the conclusion, modification and termination of contracts. In accordance with paragraph 5 of Article 2 of the Tax Code, ratified international treaties take precedence over national legislation.

Since the Republic of Kazakhstan is a State party to this Agreement, the tax authorities have the right to file lawsuits against non-resident legal entities.

             Individuals' claims against tax authorities

             When summarizing cases of individuals' claims against tax authorities, it is necessary to highlight the issues that arise when considering cases of citizens' claims against tax authorities for the release of property from seizure, since these issues are important for the proper formation of judicial practice.

This practice concerns cases in which the tax authority has issued a decision to restrict the disposal of property in relation to a taxpayer who has a tax debt.

Subsequently, the property is sold at auction and the buyer, who has fully fulfilled his obligations to pay the cost of the acquired property, cannot register ownership due to the presence of encumbrances based on the decision of the tax authority. As judicial practice shows, buyers choose the following ways to protect their rights:

they demand that the actions (inaction) of the tax authority to refuse to remove the encumbrance in the form of restrictions on the disposal of property be declared illegal, that is, they apply to the court in accordance with the rules of Chapter 27 of the CPC;

A claim is filed to exclude the property acquired at auction from the inventory or to release the property from seizure imposed by the tax authority.

As judicial practice shows, such disputes are considered in the order of claim proceedings due to the following.

First of all, the decision of the tax authority to restrict the disposal of a taxpayer's property is legitimate.

The tax authorities can remove encumbrances from property restricted in accordance with Article 613 of the Tax Code only by canceling the decision on the grounds provided for in paragraph 10 of the same article (there are only 3 of them).

This list is exhaustive. Since the taxpayer's tax debt has not been repaid, and the property is registered with him, the tax authority has no grounds for revoking the decision to restrict the disposal of property. The taxpayer himself has not challenged the decision of the tax authority in accordance with the procedure established by law and, accordingly, has not been recognized as illegal.

The tax legislation does not provide for other legal grounds for the removal of encumbrances by the tax authority.

The filing of claims for the release of property from seizure and other encumbrances, including in the form of restrictions on the disposal of property, cannot be limited only to enforcement proceedings.

Moreover, it contradicts the provisions of articles 264 and 265 of the Civil Code of the Republic of Kazakhstan.

So, Rychkov V.A. He filed a lawsuit against the State Revenue Administration for the M.Zhumabayev district of the Department of State Revenue for the North Kazakhstan region of the State Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan to remove the encumbrance from the Niva Chevrolet car, indicating that on May 16, 2015, he participated in an electronic auction for the sale of seized property, namely a car The Chevrolet Niva brand has the state registration number T 518 in 2008, and was recognized as the winner of the auction, which is confirmed by the auction protocol. On May 27, 2015, he and the Russian State Institution "Department of Justice for the North Kazakhstan region" signed a contract for the sale of this car.

According to the report on the electronic request for data from the automated accounting and control system of enforcement proceedings, encumbrances in the form of restrictions on the disposal of property due to the repayment of tax reports were imposed on the property acquired by him from the State Revenue Administration for the district of M.Zhumabayev.

In this regard, it is not possible for him to register ownership of this car in accordance with the procedure established by law, due to the existing encumbrances imposed by the State Revenue Administration for the district of M.Zhumabayev. By the decision of the M. Zhumabayev district court of the North Kazakhstan region dated September 11, 2015, the claim was satisfied, the property was released from arrest.

The court, satisfying the claim, concluded that in accordance with Part 1 of Article 188.260 of the Civil Code of the Republic of Kazakhstan, the right of ownership is the right of a subject recognized and protected by legislative acts to own, use and dispose of his property at his discretion, the owner has the right to claim his property from someone else's illegal possession.

Chevrolet Niva 21230 gls car, state registration number T 518 in 2008, was purchased by A.V. Rychkov at an auction for the sale of seized property, as part of enforcement proceedings initiated on the basis of enforcement documents on the recovery of wage arrears from a limited liability company

"Molodogvardeiskoe", respectively, the plaintiff is the legal owner of the specified car. In this regard, the plaintiff's claims for the release of property from seizure are correct, since this property was transferred to the plaintiff by the bailiff to repay the debt and he is the owner of the vehicle.

Some courts have recognized that in the presence of the circumstances outlined above, a person should be required to pay social tax for himself, other courts have pointed out that in this case the violation is formal, the taxpayer having only one status of an individual entrepreneur without carrying out taxable activities cannot be regarded as the basis for his tax obligations.

The Supervisory Judicial Board, as a result of consideration of such cases, concluded that an individual entrepreneur, due to the requirements of tax legislation, under the circumstances set out above, must fulfill a social tax obligation accrued regardless of the amount of income actually received by the taxpayer, since the taxpayer has not ceased his activities and has not been removed from the register, he continues to remain a social tax payer..

The adoption of such decisions is dictated by the need to ensure the stability of tax policy and taxpayer discipline. By its very nature, a tax liability is a basic element of the tax system.

Tax liability under Article 26 of the Tax Code – the obligation of a taxpayer to the state arising in accordance with the tax legislation of the Republic of Kazakhstan, by virtue of which the taxpayer is obliged to register with the tax authority, determine the objects of taxation and (or) objects related to taxation, calculate taxes and other mandatory payments to the budget, draw up tax forms, submit tax forms, except for tax registers, to the tax authority on time and to pay taxes and other mandatory payments to the budget. The state, represented by the tax service authority, has the right to require the taxpayer to fulfill his tax obligation in full, and in case of non-fulfillment or improper fulfillment of the tax obligation, apply methods to ensure it and measures of enforcement in accordance with the procedure provided for by the Tax Code.

Thus, in fulfillment of a tax obligation, a taxpayer performs the following actions::

gets registered with the tax authority;

keeps records of taxable objects and (or) objects related to taxation;

calculates, based on the objects of taxation and (or) objects related to taxation, the tax base and tax rates, the amounts of taxes and other mandatory payments to be paid to the budget;

prepares and submits, with the exception of tax registers, tax forms to the tax authorities in accordance with the established procedure.;

pays calculated and accrued amounts of taxes and other mandatory payments to the budget, advance and current payments for taxes and other mandatory payments to the budget.

The objects of taxation and objects related to taxation are the property and actions with which the taxpayer has a tax obligation. An analysis of cases involving disputes between individuals and tax authorities has shown that the defendants in this category of cases, for various reasons, including mistakenly, include citizens in the register of taxpayers, as a result of which the latter have certain obligations to the state.

In case of disagreement, individuals apply to the court with appropriate claims.

The specialized interdistrict Economic Court of the Almaty region has satisfied the claim of B.S. Zhanaev to the Yenbekshikazakh State Revenue Department for his exclusion from the register of taxpayers as a participant in the Baiterek peasant farming, since the defendant has not proved the validity of the registration of a peasant farm with the participation of the plaintiff.

In the practice of courts, when considering cases in this category, there have been cases of individuals suing the tax authorities for the obligation to recalculate the amount owed.

Thus, the lawsuit filed by Zorina N.N. against the State Revenue Administration for the Turksib district of Almaty was dismissed by the court, since the plaintiff owned a real estate apartment on the basis of a certificate of inheritance registered with the Department of Justice, then the apartment was alienated according to the purchase agreement.

The practice of considering such disputes has the right direction, since the property income of an individual subject to taxation includes income from value gains from the sale of property.

Income from the increase in value from the sale of immovable property owned for less than a year from the date of registration of ownership and not used in business activities is subject to individual income tax. The plaintiff was notified of the payment of taxes, which she did not appeal to the court in accordance with the procedure established by law. In addition, the tax legislation does not provide for a provision exempting pensioners and the disabled from paying property income.

When the courts considered cases in this category, there were cases of individuals' claims against the tax authorities for the obligation to remove existing tax obligations for a vehicle.

Thus, Sadvakasova B.S. applied to the court with a statement to the Tax Administration for the Bostandyk district of Almaty to appeal the decision of the Tax Administration for the Bostandyk district, on the obligation to remove existing tax obligations for the vehicle, since since 2005, the plaintiff has alienated the 1993 Ford Explorer car belonging to her, A.S. Bekturganov. in this connection, a power of attorney was issued for him, for a period of three years, after the expiration of the power of attorney, the car was not reissued. He did not remove the purchased car from the register, did not register it with the Department of Internal Affairs of Almaty.

By the decision of the Karasai District Court of the Almaty region dated July 29, 2014, the plaintiff's claim to A.S. Bekturganov for recognition of the transaction was satisfied, the car exchange transaction was recognized valid by the court. Since that time, the owner of this car has been A.S. Bekturganov. After the court's decision entered into force, the plaintiff applied to the Bostandyk district Tax Office with a request to remove the existing tax arrears on the above-mentioned vehicle from the plaintiff, but it was refused.

The court refused to satisfy the claim, since according to paragraph 1 of Article 155 of the Civil Code, transactions subject to state or other registration in accordance with legislative acts are considered completed after their registration.

366 of the Tax Code of the Republic of Kazakhstan, the objects of taxation are vehicles, with the exception of trailers, subject to state registration and registered in the Republic of Kazakhstan.

The court came to a reasonable conclusion that since the applicant is the owner of the car, the tax on vehicles is lawfully calculated, the tax administration for the Bostandyk district of Almaty carried out actions within its competence in accordance with the requirements of the legislation and in accordance with paragraph 26 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of application by courts of the norms of Chapter 27 of the CPC RK", the claim was denied.

On claims of legal entities against tax authorities

Disputes are mainly considered on applications from legal entities to the tax authorities to challenge decisions (actions or omissions) of the tax authority, since tax relations between the state represented by the tax service and the taxpayer are purely administrative, i.e. unilaterally authoritative.

According to Articles 666 and 668 of the Tax Code, a taxpayer has the right to appeal to the court the notification of the results of a tax audit and the actions (inaction) of tax officials.

The procedure for appealing against actions (inaction) of officials, including in the process of conducting tax audits, is regulated by Chapter 95 of the Tax Code.

The right to appeal, enshrined in Article 686 of the Tax Code, is one of the basic rights of a taxpayer and provides the taxpayer or his authorized representative with the opportunity to defend their rights and legitimate interests in relations with tax authorities by contacting both a higher tax authority and a court.

The exercise by a taxpayer of the right to appeal granted to him by the state generates obligations for other participants in legal relations, in particular for officials of tax authorities and, as a result, the responsibility of officials for non-fulfillment or improper fulfillment of the obligation that has arisen. The State has provided the taxpayer with the right to appeal decisions, actions (inaction) of officials of the tax service bodies, and therefore the state is obliged to apply state coercion measures to persons who prevent the taxpayer from exercising his legitimate right.

The judicial procedure for considering applications for challenging the results of a tax audit and actions (inaction) of tax officials is regulated by Chapter 27 of the CPC, since in this order decisions of tax authorities are challenged, as a result of which a legal entity is charged with a particular duty.

In accordance with Article 279 of the CPC, decisions, actions (inaction) challenged in court include collegial and individual decisions and actions (or inaction), as a result of which: - the rights, freedoms and legally protected interests of legal entities are violated, -obstacles to the exercise by a legal entity of its rights and legally protected interests are created., - any obligation has been unlawfully imposed on a legal entity or they have been unlawfully held accountable.

Civil cases on applications filed in accordance with Chapter 27 of the CPC arise from public legal relations and are considered in the order of special claim proceedings, with the exception of cases arising from property and binding legal relations, which are considered only in the order of claim proceedings. Special claim proceedings are a type of claim proceedings that have the following characteristics::

1) the dispute is resolved by appealing against the decisions, actions (inaction) of the subjects listed in the first part of Article 278 of the CPC, which violated the rights, freedoms and legally protected interests of citizens and legal entities;

2) the case is not subject to consideration in absentia;

3) the case cannot be settled by an amicable agreement;

4) in cases of the specified category, a shortened limitation period and a shortened time limit for the consideration of cases have been established.

In the event of a dispute over the right arising from property or binding legal relations, the court, in accordance with the second part of Article 290 of the CPC, issues a ruling on the consideration of the case in the order of claim proceedings.

Thus, Arystan Holding LLP filed a lawsuit with the specialized interdistrict economic court of Kostanay region against the Russian State Institution "Department of State Revenue for Kostanay region" to challenge the notification, protect business reputation and recover damages in the amount of 1,000,000 tenge, indicating that the defendant (hereinafter referred to as the Department) during the audit excluded from deductions as unconfirmed expenses for transport services, namely due to the absence of tear-off coupons, waybills and waybills (hereinafter TTN) for 2012-2014 according to the CPN, while, during the tax audit, the plaintiff submitted the requested documents for review and work, the taxpayer had all the travel vouchers and TTN, but the inspectors concluded on the basis of the verified two or three TTN that they were issued incorrectly and, therefore, they did not exist at all, reflecting this in the inspection report.

Then the transport service providers were independently selected by the inspector and all costs for them were deducted without checking the primary accounting documents, and as a result, the supplier of IP "Dolgopolov I.V." turnover in the amount of 2,426,000 tenge was reflected in the act, and according to accounting data and according to the provided declarations on form 300.08, the services were provided by IP "Dolgopolov V.I." for a total of 170,000 tenge.

Contracts for freight forwarding services (freight forwarding) were concluded with the counterparties of Travel KST LLP and Service kz LLP, in accordance with Article 708 of the Civil Code of the Republic of Kazakhstan, under the terms of which the forwarder independently concluded cargo transportation contracts with carriers on his behalf, acted as a shipper. For the services rendered, the forwarders issued invoices for the services of Arystan Holding LLP in accordance with the acts of work performed.

The obligations for the registration and storage of waybills and tear-off vouchers of waybills lie with the freight forwarder, but not with the client, Arystan Holding LLP.

Waybills of a motor vehicle and waybills are subject to registration in the logs of the movement of waybills and waybills, and storage by the Carrier together with the logs for 5 years, Chapter 35 of the Civil Code of the Republic of Kazakhstan specifies forwarding contracts in which the availability and registration of a TTN waybill is not provided at all, this chapter It is subject to the Law of the Republic of Kazakhstan dated September 21, 1994 No. 156-XIII "On Transport in the Republic of Kazakhstan", which defines the basis of legal, economic and organizational activities of transport of the Republic of Kazakhstan.

As proof of the relationship between Arystan Holding LLP and Travel KST LLP and Service kz LLP, primary accounting documents were presented: copies of contracts, selectively copies of invoices issued in accordance with Article 264 of the Tax Code of the Republic of Kazakhstan, confirming the receipt of transport and expedition services, but they were not taken into account by the defendant. since there are about 1,500 of them in total.During the audit, the Department excluded the turnover of the supplier of AQUAPOOL LLP from deductions, unreasonably indicating that the plaintiff unlawfully deducted the amounts for mutual settlements with him., as a result of the analysis of tax reports, the tax authority found that in the tax statements of f. 300,000 for VAT for the 1st and 2nd quarters of 2013, AQUAPOOL LLP did not reflect the sale to Arystan Holding LLP, the reports were submitted with zero indicators, respectively, AQUAPOOL LLP did not pay VAT, while the counter There was no verification with the supplier. The plaintiff has all the primary supporting documents stating that he purchased the goods from AQUAPOOL LLP, they were entered into the partnership's warehouse on receipt orders.

He believes that AQUAPOOL LLP should be responsible to the tax authorities for misrepresenting information in tax reporting forms, and not mislead the tax authorities. According to the Pyramid of Buyers report, according to Invest Trade Company LLP, Arystan Holding LLP sold goods (services) in the amount of 22,464,235 tenge to them, however, according to accounting data from Arystan Holding LLP, there was no sale, and the applicant never contacted Invest Trade Company LLP. He worked, the Department did not provide documents confirming the implementation, and the counter-check with the supplier was not completed at the time of signing the act. The tax authority has repeatedly expressed the invalidity of TTN, signatures of drivers of freight forwarders, these untrue information discredit the business reputation of Arystan Holding LLP, its employees and thereby harm the image of the enterprise. In order to prove the validity of the TTN, the plaintiff was forced to search for legal entities and individuals who provided transport services, select explanatory notes from them, ensure the appearance of witnesses and third parties in court, thereby incurring additional fuel costs for the search for the above-mentioned persons.

Also, during the collection of evidence, additional working hours of the plaintiff's employees were spent, calls were made to cell phones and visits to cargo carriers, which caused damage to business reputation in the amount of 1 million tenge. The court's decision partially satisfied the claim.

The court decided: to declare illegal and cancel the notification of the results of the tax audit No. 537 dated October 3, 2014, issued in respect of Arystan-Holding LLP in terms of the additional amounts of CPN in the amount of 16909336 tenge, VAT in the amount of 2695707 tenge, to oblige the RSU "Department of State Revenue for Kostanay region" to recalculate the penalties for the above to recognize the cancelled amounts of taxes, the right to refund to Arystan-Holding LLP the paid state duty in the amount of 196050 tenge (according to the payment order dated October 17, 2014 DB Sberbank JSC), to refuse the claim for the protection of business reputation and the recovery of damages in the amount of 1,000,000 tenge.

The Court of first instance, rejecting the claim for the protection of business reputation and recovery of damages in the amount of 1,000,000 tenge, proceeded from the following: according to the Regulatory Decree of the Supreme Court of the Republic of Kazakhstan "On the application in judicial practice of legislation on the protection of honor, dignity and business reputation of individuals and legal entities", defamatory information is such untrue information that they detract from the honor and dignity of a citizen or an organization in public opinion or the opinion of individual citizens in terms of compliance with laws and moral principles of society (for example, information about the commission of a dishonest act, misconduct; information discrediting production and business activities, reputation, etc.).

At the same time, demands for refutation of information containing true criticism of shortcomings in work, in a public place, in a team, in everyday life cannot be recognized as justified. However, the reasoning part of the decision did not indicate whether the information was disseminated, the refutation of which was sued, whether they discredit the reputation of the LLP, whether this information corresponds to reality.

On claims of tax authorities for the liquidation of a legal entity (termination of the activity of an individual entrepreneur)

Paragraph 11 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 5 dated June 18, 2004 "On judicial practice of liquidation of legal entities carrying out their activities in gross violation of the law" stipulates that applications for liquidation of an absent legal entity are considered in the order of claim proceedings, bankruptcy of an absent debtor - in the order of special proceedings. The failure of persons authorized by the constituent documents to represent the interests of a legal entity (founders, participants and officials) to attend a court hearing does not entail consideration of the application in absentia.

Thus, the plaintiff of the State Revenue Agency for Taldykorgan /former name of the State Tax Agency for Taldykorgan, Almaty region/ filed a lawsuit, arguing that in accordance with Article 2 of the Law of the Republic of Kazakhstan dated December 26, 2012 No. 61-V "On Amendments and Additions in some legislative acts of the Republic of Kazakhstan on taxation," the tax authorities are required to publish in the media no later than March 01, 2013, a list of entities subject to compulsory liquidation.

The list of entities subject to compulsory liquidation in the Almaty region, including the compulsory liquidation of the named defendant, was posted on the website of the Tax Department of the Almaty region. www.taxalmaty.kz this is confirmed by a screenshot from the website and in the newspaper "Lights of Alatau" dated 05.03.2013 No. 28 (16677) and again dated 30.03.2013 No. 38 (16687). Also, in accordance with paragraph 6 of the Law, the deadline for accepting applications (claims) from creditors or other persons whose rights may be affected by forced liquidation expired on May 01, 2013The list of entities subject to compulsory liquidation in the Almaty region, including the compulsory liquidation of the named defendant, was posted on the website of the Tax Department of the Almaty region. www.taxalmaty.kz this is confirmed by a screenshot from the website and in the newspaper "Lights of Alatau" dated 05.03.2013 No. 28 (16677) and again dated 30.03.2013 No. 38 (16687). Also, in accordance with paragraph 6 of the Law, the deadline for accepting applications (claims) from creditors or other persons whose rights may be affected by forced liquidation expired on May 01, 2013. Statements (claims) There were no complaints from other creditors to the tax authority.

According to paragraph 3 of Article 2 of the Law, the conditions under which entities are subject to compulsory liquidation do not apply to resident legal entities, branches and representative offices of resident legal entities, information about which is not available in the National Register of Identification Numbers.

Considering the above, the above categories of taxpayers who have not passed state (accounting) registration with the judicial authorities (which includes identification numbers in the National Register) are subject to compulsory liquidation without the need to establish the facts of their export-import operations, the ownership of real estate, banking transactions, etc. The city's medical detox center was not assigned a taxpayer registration number, nor does it have a business identification number, and information about it is missing from the National Register of Identification Numbers, which is confirmed by the The city's medical detox center was not assigned a taxpayer registration number, nor does it have a business identification number, and information about it is missing from the National Register of Identification Numbers, which is confirmed by the response of the registering authority, and accordingly, the specified legal entity is subject to compulsory liquidation. The case was considered with the participation of the plaintiff's representative, without the participation of the defendant.

The representative of the defendant, the Department of Justice of the Almaty Region, also did not appear at the court hearing.

However, the review provided to the court indicated that according to the National Register of Business Identification Numbers, there is no information about the City's Medical Detox.

Based on subparagraph 5 of paragraph 2 of Article 49 of the Civil Code of the Republic of Kazakhstan, which stipulates that by a court decision a legal entity may be liquidated in cases provided for by other legislative acts, in accordance with paragraph 1 of Article 2 of the Law of the Republic of Kazakhstan dated December 26, 2012 No. 61-V "On Amendments and Additions to certain Legislative Acts Republic of Kazakhstan on Taxation Issues", which stipulates that by July 01, 2013, the tax authorities are required to draw up a final list of legal entities, branches, representative offices and individual entrepreneurs, subject to compulsory liquidation (de-registration, termination of operations), in accordance with the procedure specified in this article.

The court granted the claim to the specified list, including resident legal entities, branches and representative offices of resident legal entities, information about which is not available in the National Register of Identification Numbers.

The court's decision is also based on paragraph 3 of article 2 of the Law, which defines the conditions for classifying entities subject to compulsory liquidation in accordance with the procedure established by Law.

At the same time, compliance with these conditions does not apply to resident legal entities, branches and representative offices of a resident legal entity, information about which is not available in the National Register of Identification Numbers. Thus, according to paragraph 3 of Article 2 of the Law, resident legal entities, branches and representative offices of resident legal entities, information about which is not available in the National Register of Identification Numbers, are subject to compulsory liquidation without the need to establish the facts of their export-import operations, ownership of real estate, banking transactions, etc.

The court came to a reasonable conclusion that one of the entities subject to compulsory liquidation is the City Medical Detoxification Center, which was registered by the Justice Department of the Almaty region on July 27, 2003, registered at:

Almaty region, Taldykorgan. According to subparagraph 2 of paragraph 4 of Article 2 of the Law, the tax authorities are required to publish in the media no later than March 01, 2013, a list of entities subject to compulsory liquidation.

The compiled list of entities subject to compulsory liquidation in the Almaty region, including the compulsory liquidation of the Municipal Medical Detoxification Center, was posted on the website of the Tax Department of the Almaty region. www.taxalmaty.kz , which is confirmed by a screenshot from the website.

Also, in accordance with paragraph 6 of the Law, the deadline for accepting applications (claims) from creditors or other persons whose rights may be affected by forced liquidation expired on May 01, 2013. The announcement of acceptance of claims was published in the newspaper "Lights of Alatau" dated 05.03.2013 No. 28 (16677) and again dated 30.03.2013 No. 38 (16687). Statements (claims) There were no complaints from other creditors to the tax authority.

According to paragraph 2 of Article 13 of the Law of the Republic of Kazakhstan "On National Registers of Identification Numbers", after six months from the date of entry into force of this Law, individuals and legal entities (branches and representative offices), as well as individual entrepreneurs, are required to apply to registration authorities to generate an identification number and reissue previously issued documents in accordance with the procedure established by the Government of the Republic Kazakhstan.

There is no information about the City's Medical Detox center in the National Register of Identification Numbers, meaning this legal entity does not have a business identification number, which is confirmed by the response of the Department of Justice of the Almaty region.

According to paragraph 8 of Article 2 of the Law, the tax authorities, in respect of entities included in the specified list, file claims with the court for compulsory liquidation (de-registration, termination of activities).

Thus, since information about this legal entity is not available in the National Register of Identification Numbers and it is included in the list of entities subject to compulsory liquidation, the court made a lawful decision to liquidate this legal entity.

Court decisions on the refusal to satisfy the requirements of the tax authorities are also made in accordance with the applicable laws.

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