Making private rulings on tax disputes
Violation of Articles 123 of the Tax Code (investment tax preferences), 129 of the CPC (duty of proof)
LLP – 1 filed a lawsuit challenging the collection orders of the state Revenue authority to the State Revenue Administration.
It follows from the case file that LLP – 2, in connection with the debt incurred on the notification of the elimination of violations identified by the state revenue authorities based on the results of desk control, applied to the tax authority to assist in collecting accounts receivable. An act of reconciliation of settlements between LLP – 2 and LLP – 1 was attached to this appeal.
The Management has issued a notification to LLP – 2 about the repayment of the tax arrears on the CPN and the corresponding penalty.
The Office sent a notification to LLP -1 about foreclosure on money in the bank accounts of debtors, to whom LLP–1 was notified about foreclosure on account of repayment of tax debts of LLP – 2.
The Management sent to the Bank collection orders from the state revenue authority to the accounts of LLP– 1 for VAT on goods produced, works performed and services rendered in the territory of the Republic of Kazakhstan.
However, the Management issued a notice of debt repayment after LLP – 2 announced the existence of a debtor. Failing to comply with the deadline set by tax legislation for submitting to the tax authority that sent the notification an act of reconciliation of settlements between the taxpayer and his debtor, the Management issued collection orders, which the Bank partially executed.
The Management also took into account the reconciliation report, whereas the notification of debt repayment, that is, the reconciliation report was drawn up earlier than the date of receipt of the notification of debt repayment to the budget, which is inconsistent with the provisions of subparagraph 4) of paragraph 3 of Article 123 of the Tax Code, according to which the reconciliation report between the taxpayer and his debtor must contain the date of compilation the reconciliation report, which must not be earlier than the date of receipt of the notification of repayment of the debt to the budget.
Thus, the tax authority neglected the ability of the taxpayer's debtor to confirm the debt himself in the form of a reconciliation report and illegally issued collection orders to his bank accounts.
The Management also violated one of the basic principles of taxation, the principle of certainty, since the notification of debt repayment was issued in respect of LLP–2's debt under the CPN, and in the collection order from LLP–1, the taxpayer's VAT debt is collected.
The Office did not comply with the requirements of subparagraph 2) of the second part of Article 129 of the CPC, since it did not provide the court with evidence that the plaintiff had a real debt to LLP – 2 at the time of the notification.
Thus, the Management violated the legitimate interests of the plaintiff, created obstacles to their implementation, and unlawfully imposed on him the obligation to repay the tax debts of a third party. This violation of the law, committed by the tax authority when issuing the disputed collection order, led to the adoption of an illegal administrative act.
Therefore, the court of first instance issued a private ruling on bringing to the attention of a higher tax authority violations of tax legislation committed by officials of the defendant.
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