On the recognition of the illegal notification of the Office of State Revenue on the accrual of penalties

No.6001-23-00-6ap/393 dated 09/28/2023

Plaintiff: A.A.

Respondent: RSU "State Revenue Administration" The subject of the dispute: on the recognition of the unlawful notification of the accrual of penalties.

Review of the plaintiff's cassation appeal.

PLOT: On May 19, 2014, 1/6 of the share of apartment No. 4 was registered for AA, based on the purchase and sale agreement dated June 25, 2013. On February 9, 2015, the plaintiff sold the apartment for 4.9 million tenge.

The difference between the purchase price and the sale price of the share of the property amounted to 448 thousand tenge. On April 7, 2016, the Office sent a notification to the plaintiff due to the failure to submit a declaration of personal income tax in connection with the receipt of income from the increase in value during the sale of property in 2015.

The notification sent to the plaintiff by registered mail was returned to the sender. On May 4, 2022, the plaintiff submitted a declaration on IPN form 240.00. for 2015, with payment of the principal debt in the amount of 44 thousand tenge.

On May 7, 2022, the Office issued a notice to the plaintiff about the tax arrears on penalties in the amount of 33 thousand tenge accrued for the period from April 11, 2016 to April 29, 2022. On May 16, the plaintiff filed a complaint with the Office for a reduction in the amount of the penalty. However, the Office replied that it was impossible to write off the penalty.

Judicial acts:

1st instance: the claim is satisfied.

Appeal: the court's decision is overturned, the claim is denied.

Cassation: the decision of the appellate instance is overturned, the decision of the court of first instance is upheld.

Conclusions: The Court of First Instance motivated the satisfaction of the claim by the fact that the plaintiff was not notified of his outstanding tax obligation in a timely manner by the Department, and the notification sent by the latter was not delivered properly.

The court of appeal motivated the cancellation of the SMAS decision and the refusal to satisfy the claim by the fact that the fact of notifying or not notifying the plaintiff of his outstanding tax obligation, as well as the circumstances of the delivery of the notification, do not matter for the proper resolution of the case under consideration. Since the calculation of personal income tax on income subject to taxation by an individual is carried out independently, regardless of the notification of the tax authority.

However, one cannot agree with the conclusions of the court of appeal. Thus, by virtue of subparagraph 1) of paragraph 1, paragraph 2, subparagraph 5) of paragraph 9 of Article 48 of the Code of the Republic of Kazakhstan "On Taxes and other mandatory payments to the Budget" (Tax Code):

- the limitation period for a tax obligation and claim is the period of time during which the tax authority has the right to calculate, calculate or revise the calculated, accrued amount of taxes and payments to the budget.

- unless otherwise provided, the limitation period is three years.

- the limitation period is extended until the execution of the notification on the elimination of violations identified by the tax authorities based on the results of desk control, sent and served before the expiration of the limitation period, regarding the violations identified.

From the circumstances of the case, it can be seen that the Office issued a notice for the period of 2015, which was not served on the plaintiff in a timely manner.

This circumstance indicates that the statute of limitations was not extended, therefore, in May 2022, the tax authority was not entitled to charge the amount of tax.

Thus, the SMAS correctly satisfied the plaintiff's claims, and the conclusions of the court of appeal are erroneous in terms of the application of substantive law, which is the basis for the cancellation of the contested judicial act while upholding the decision of the court of first instance.

 

 

 

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