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

No.6001-23-00-6ap/419 dated 08/08/2023

Plaintiff: K LLP

Respondent: Russian State Institution "State Revenue Administration"

The subject of the dispute: the cancellation of the notification on the elimination of violations identified by the state revenue authorities based on the results of desk control dated February 24, 2022.

Review of the plaintiff's cassation appeal.

PLOT: the registration of LLP "C" was declared invalid by the decision of the Council of Economic and Social Council of December 2, 2021.

The Office conducted desk control in relation to the Partnership in accordance with Article 94 of the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget" (Tax Code) (hereinafter referred to as the Tax Code).

On February 24, 2022, a notification was sent to the Partnership on the elimination of violations identified by the state revenue authorities based on the results of desk control (hereinafter referred to as the notification), with the attachment of a protocol of identified errors.

On April 12, 2022, the Partnership appealed the notification to a higher authority, which dismissed the complaint. These circumstances became the basis for the plaintiff to apply to the court with this claim. The partnership expresses its disagreement with the notification, and therefore requests the court to cancel it.

Judicial acts:

1st instance: the claim was denied.

Appeal: the court's decision is upheld.

Cassation: judicial acts are annulled, the case is sent for new consideration to the court of appeal in a different composition of the court.

Conclusions: The courts of previous instances, refusing to satisfy the claim, came to the conclusion that the Management, in the presence of a court decision that entered into force invalidating the registration of the plaintiff's counterparty, had a basis for issuing the contested notice.

In addition, the court of appeal pointed out that the recognition of the registration of LLP "C" as invalid deprives the plaintiff of the right to provide an explanation for the disputed notification, and the circumstances established by the court's decision that entered into force in a previously considered civil case are binding on the court (part two of Article 76 of the CPC).

According to paragraph 5 of Article 96 of the Tax Code, in cases of filing a complaint to the court against the actions (inaction) of tax officials to notify them of the elimination of violations provided for in subparagraphs 2) and 3) of paragraph 3 of this Article, identified by the tax authorities based on the results of desk control, the taxpayer has the right to prove the actual receipt of goods, works, and services from a legal entity whose registration (re-registration) has been declared invalid on the basis of a court decision that has entered into legal force.

This means that in such cases, the legislator allowed taxpayers to prove in court the actual turnover of transactions made by him.

In other words, the plaintiff has the right to prove in court the actual receipt of services from a legal entity, thereby refuting the position of the tax authority.

However, such a right was not granted to the taxpayer, and the conclusions of the courts about the absence of such a right are erroneous.

Thus, the plaintiff's arguments and evidence about the actual purchase of services have not been investigated and they have not been given any legal assessment, which is a violation of substantive and procedural law and deprives the plaintiff of the right to judicial protection.

In such circumstances, the judicial board considers the conclusions of the courts on the rejection of the claim to be premature and unfounded, since the factual circumstances of the case, which are essential for its resolution, have not found their legal assessment by the courts of the first and appellate instances.

 

 

 

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

 

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases