On recognizing the notification of the elimination of violations identified by the state revenue authorities based on the results of desk control as fulfilled

No.6001-23-00-6ap/26 dated 07/18/2023

The plaintiff: Sole proprietor "S"

Respondent: Russian State Institution "State Revenue Administration"

The subject of the dispute: on recognizing the notification of the elimination of violations identified by the state revenue authorities based on the results of desk control as executed, on recognizing it as illegal and canceling the decision to recognize the notification of the elimination of violations identified by the state revenue authorities as unfulfilled.

Review of the plaintiff's cassation appeal.

PLOT:

UGD issued a notification to IP "S" dated March 14, 2022 for the period from January 1, 2020 to December 31, 2020 on tax reporting forms 220.00, 240.00, 910.00, 912.00, 920.00, namely, in the form of underestimation of income, identified on the basis of studying information obtained from various sources of information.

According to appendices 1, 2, the amount of income according to the state revenue authorities of IP "S" amounted to 89.5 million tenge, the declared amount of IP "S" - 77.5 million tenge, the amount of violation – 3 million tenge. By notification, IP "S" is responsible for its execution.

IP "S" in response to the notification, an explanation dated March 29, 2022 was provided stating that IP "S" activities were suspended until July 1, 2024, with the attachment of an application and a screenshot from the website kgd.gov.kz On March 31, 2022, the UGD issued a decision.

Judicial acts:

1st instance: the claim was denied. Appeal: the decision remains unchanged. Cassation: judicial acts are cancelled. A new decision has been made to satisfy the claim. The decision was declared illegal and cancelled.

Conclusions: The purpose of desk control is to provide the taxpayer with the right to independently eliminate violations identified by the tax authorities based on the results of desk control by registering with the tax authorities and/or submitting tax reports in accordance with Article 96 of the Tax Code and/or paying taxes and payments to the budget.

Paragraph 2 of Article 96 of the Tax Code provides for two ways of executing notifications on the elimination of violations identified by the results of desk control by the taxpayer:

1) in violations;

2) in case of consent - by eliminating the identified violations; in case of disagreement - by providing explanations on the identified violations on paper or electronic media.

The notification is executed by the taxpayer (tax agent) within thirty working days from the day following the day of its delivery (receipt).

It follows that the submission of an explanation of disagreement with the notification is recognized as the execution of the notification and terminates its effect.

In this case, the tax authority may decide to recognize the notification as unfulfilled only in cases where:

a) the explanation does not comply in form and content with the requirements of subparagraph 2) of paragraph 2 of Article 96 of the Tax Code;

b) an explanation is not subject to submission by the taxpayer in the cases specified in paragraph 3 of Article 96 of the Tax Code, and when violations have not been eliminated.

The above list of grounds for recognizing the notification based on the results of desk control as unfulfilled is exhaustive.

That is, the tax authority, evaluating the taxpayer's explanation of the notification, checks it for compliance with the law in form and content, and if it does not comply with the requirements of the law, it has the right to recognize the notification as unfulfilled. At the same time, the explanation provided by the partnership complies in form and content with the requirements of subparagraph 2) of paragraph 2 of Article 96 of the Tax Code, submitted in compliance with the deadline established by law.

This means that the plaintiff has executed the notification by providing an explanation. In view of this, the conclusions of the courts on the refusal to satisfy the claim are erroneous, since within the framework of this administrative procedure, the plaintiff executed the notification by providing an explanation, and the defendant had no legitimate grounds for making a decision to recognize the notification as unfulfilled.

At the same time, the judicial board did not enter into the discussion of the legality of the notification, since during the court session it was established that in fact a lawsuit was filed with the court regarding the legality of the decision to recognize the notification as unfulfilled.

The courts mistakenly divided the claim into two claims and essentially considered the legality of the notification.

 

 

 

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