On the recognition of illegal actions to issue a notification

No. 6001-23-00-6ap/546 dated 07/27/2023

Plaintiff: LLP "A" Defendant: RSU "State Revenue Administration"

The subject of the dispute is the recognition of illegal actions to issue notification No. 0909QP300002 dated May 25, 2022 and its cancellation.

Review at the cassation request of the prosecutor.

PLOT:

On May 25, 2022, the Office issued a notification based on the results of desk control in relation to LLP "A". The period covered by desk control is from April 1, 2019 to March 31, 2022.

The reason: subparagraph 1) of paragraph 3 of Article 96 of the Tax Code is the unlawful assignment of the amount of VAT in the amount of 213.8 tenge for mutual settlements with three counterparties of AT LLP, G LLP, K LLP, for which actions on issuing invoices and (or) a document were recognized by the court as committed without actual execution of works, provision of services, shipment of goods (the verdict of the district court dated February 28, 2022).

Judicial acts:

1st instance: the claim is satisfied.

The actions of the Department in issuing the notification were found to be illegal and it was canceled.

Appeal: the decision remains unchanged. Cassation: judicial acts were annulled with the issuance of a new decision to dismiss the claim.

Conclusions: Resolving the dispute and satisfying the claim, local courts, guided by the provisions of Articles 96, 264 and 403 of the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget" (hereinafter referred to as the Tax Code) and examining the primary accounting documents and contracts, came to the conclusion that the actual financial and economic transactions between the parties to the transactions were proven. The Board considered these conclusions of the local courts to be inconsistent with the norms of substantive law and the circumstances of the case.

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 and (or) an individual entrepreneur whose registration (re-registration) has been declared invalid on the basis of a court decision that has entered into legal force.

It follows from the above that a taxpayer has the right to prove the actual receipt of goods, works and services when appealing notices issued on the basis of subitems 2) and 3) of paragraph 3 of Article 96 of the Tax Code (for transactions with legal entities whose registration or re-registration has been declared invalid).

In the case under consideration, the notification was issued on the grounds provided for in subparagraph 1) Paragraph 3 of Article 96 of the Tax Code: a court verdict that has entered into force, which is of prejudicial importance for this case on the basis of part three of Article 76 of the CPC.

Consequently, when appealing against such notification, the taxpayer is not given the right to prove in court the actual receipt of goods, works and services (paragraph 5 of Article 96 of the Tax Code).

It was established that by the verdict of the district court of February 28, 2022, which entered into force, as well as by the decision of the judicial board for criminal cases of April 12, 2022, U. was found guilty of committing a crime under part three of Article 28, part three of Article 216 of the Criminal Code of the Republic of Kazakhstan for committing acts to issue fictitious invoices. without actually performing work, rendering services, or shipping goods.

Among the counterparties to which the created U. The legal entities supplied the goods, and the plaintiff, LLP "A", is listed. It follows from the verdict that U., not being a private business entity, in a group of persons in prior agreement with Sh. in order to extract property benefits, organized and supervised the process of discharge from AT LLP, G LLP, K LLP, fictitious between October 14, 2019 and May 11, 2021. invoices without actual delivery of goods, provision of services and performance of work, thereby contributed to the illegal tax exemption of LLP "A" in the amount of turnover of 1.8 billion tenge. The verdict reflects the amounts of the plaintiff's turnover with the specified counterparties and VAT (pages 11, 18 and 23), the total amount fully coinciding with the notification. The court shall dismiss the claim based on the amount of violations claimed by the contested person By virtue of part four of Article 155 of the CPC if, upon its consideration, it finds that the contested action (inaction) has been committed, and the decision has been made in accordance with the competence and legislation of the Republic of Kazakhstan.

In this regard, the board concluded that the notification was issued by the tax authority on a legitimate basis, within the scope of its competence. In turn, the board clarifies that the primary accounting documents are subject to analysis during a tax audit, according to the results of which the tax authority may issue a notification on the accrual of taxes.

As a result, the court gave a legal assessment of the evidence of the actual settlement between the parties to the transaction when the taxpayer appealed such a notification.

 

 

 

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