On challenging the order on the appointment of an inspection and notification of the results of the inspection

No.6001-23-00-6ap/212 dated 08/03/2023

Plaintiff: LLP "AS"

Defendants: RSU "Department of State Revenue"

The subject of the dispute: the order to appoint an audit dated March 4, 2022 and the notification of the audit results dated July 9, 2022 regarding the calculation of taxes and VAT penalties in the amount of 418.9 million tenge.

Review of the defendant's cassation appeal. PLOT: On March 4, 2022, the Department issued an order to appoint a comprehensive tax audit in relation to the Partnership on the fulfillment of tax obligations for all types of taxes, payments to the budget and social payments for the tax period from January 1, 2019 to December 31, 2021.

On June 9, 2022, a notification was issued on the results of the audit, which added VAT of 14.4 million tenge and a fine of 4.7 thousand tenge, VAT of 412.9 million tenge and a fine of 5.9 million tenge, totaling 433.8 million tenge.

Challenging these administrative acts, the plaintiff considers them illegal, since he was granted a delay in execution until March 17, 2022, but without waiting for the end of this period, the tax authority ordered an audit and did not accept an additional declaration dated March 17, 2022.

              Judicial acts:

1st instance: the claim is satisfied. A particular definition has been made.

Appeal: the court's decision and ruling are upheld.

Cassation: judicial acts are upheld.

Conclusions: On January 14, 2022, the plaintiff's Management extended the fulfillment of the TNF tax liability 870.00, 200.03, 200.00, 300.00 until March 17, 2022. On March 11, 2022, the plaintiff submitted another VAT declaration for the 4th quarter of 2021 with an accrual of 20,000,000 tenge, which was accepted by the tax authority.

On the same day, the tax authority handed the plaintiff an order to appoint an audit and opened a comprehensive audit, after which the taxpayer's additional declaration dated March 17, 2022, with VAT for the 4th quarter of 2021 in the amount of 396.9 million tenge was not accepted.

The courts of the first and appellate instances came to the correct conclusion that the tax authority violated the plaintiff's right to voluntarily fulfill a tax obligation until March 17, 2022.

From paragraph 57 of the Order of the Chairman of the State Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan dated January 6, 2017 No. 6, it follows that a comprehensive or thematic audit on the fulfillment of a tax obligation is appointed for the tax period (month, quarter, year) for which the deadline for submitting tax reports has arrived on the date of the beginning of the tax audit, taking into account the postponement of its submission.

Consequently, the defendant should have waited until the deadline for submitting tax reports extended to the plaintiff, after which he raised the issue of appointing a tax audit.

The arguments of the defendant's representative that the plaintiff exercised the right of deferral by submitting another declaration on March 11, 2022, and this allowed the tax authority to begin an audit, are not justified, since on March 17, 2022, they submitted an additional declaration eliminating previously committed violations, which indicates that they voluntarily fulfilled their tax obligations on time.

 

 

 

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