Summary of judicial practice in the consideration of civil cases on claims for invalidation of state registration of legal entities based on applications for challenging tax authorities' notifications.
In accordance with the order of the Chairman of the Supreme Court of the Republic of Kazakhstan, an unscheduled summary of the judicial practice of considering civil cases on claims for invalidation of state registration (re-registration) of legal entities, as well as on applications from counterparties of enterprises whose registration was declared invalid, challenging tax authorities' notifications. The purpose of the generalization is to study judicial practice in cases of the generalized category, analyze the quality of the administration of justice, and identify problematic issues that arise in law enforcement practice. The generalization was carried out for the period 2014-2016, based on the study of 217 civil cases and judicial acts of the EAIAS database and the information system "Torelik" in cases of the generalized category, certificates based on the results of generalizations by regional and equivalent courts (hereinafter referred to as regional courts), as well as the supervisory and cassation practice of the Supreme Court. The main regulatory legal acts regulating the legal relations under consideration at the present time are the Constitution of the Republic of Kazakhstan, the Civil Code of the Republic of Kazakhstan, the Business Code of the Republic of Kazakhstan dated October 29, 2015 No. 375-V, the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget" (Tax Code) dated December 10, 2008 No. 100-IV, Law of the Republic of Kazakhstan "On the Prosecutor's Office" dated December 21, 1995 No. 2709, Law of the Republic of Kazakhstan "On Legal Acts" dated April 6, 2016 No. 480-V, Law of the Republic of Kazakhstan
"On State Registration of Legal Entities and Registration of branches and Representative Offices" dated April 17, 1995 No. 2198, the Law of the Republic of Kazakhstan "On National Registers of Identification Numbers" dated January 12, 2007 No. 223, the Law of the Republic of Kazakhstan "On Business Partnerships" dated May 2, 1995 No. 2255, the Law of the Republic of Kazakhstan "On Limited and Additional Liability Partnerships" dated April 22, 1998 No. 220, the Law of the Republic of Kazakhstan "On Population Migration" dated July 22, 2011 No. 477-IV, Resolutions of the Government of the Republic of Kazakhstan, adopted in accordance with the Tax Code, regulatory resolutions of the Supreme Court of the Republic of Kazakhstan "On certain issues of the application of legislation on pseudo-entrepreneurship" dated January 12, 2009 No. 1, "On Judicial practice of the application of tax legislation" dated February 27, 2013 No. 1, Instructions on state registration of legal entities and registration of branches and representative offices, approved By Order of the Minister of Justice of the Republic of Kazakhstan dated April 12, 2007 No. 112. Since official statistics do not provide for special accounting of cases of the generalized category, information provided by regional courts was used. Cases on claims of tax authorities and the prosecutor's office for the recognition of the state registration of legal entities as invalid or its cancellation. A total of 1,105 cases were considered in this category in the period under review, of which 930 were adjudicated, including 793 with satisfaction of the claim, 137 with denial of the claim. Of these: in 2014 – 261 cases, of which 197 were adjudicated, including 136 with satisfaction of the claim, 61 with denial of the claim; in 2015 – 512 cases, of which 461 were adjudicated, including 424 with satisfaction of the claim, with denial of the claim. satisfaction of the claim – 37; in the first half of 2016 - 332, of which 272 were adjudicated, including 233 with satisfaction of the claim, 39 with denial of the claim. Of these, 821 cases were filed by the Prosecutor's Office, and 284 cases were filed by the tax authorities. The quality of the administration of justice in cases of the generalized category. In 2014, higher authorities overturned only 2 decisions, or 1% of the total number of decisions rendered in cases of this category. In 2015, higher authorities overturned only 1 decision, or 0.2% of the total number of decisions rendered in cases of this category. In the first half of this year, higher authorities canceled only 1 decision, or 0.3% of the total number of decisions rendered in cases of this category. Changed 1 or 0.3%.
In most cases, the grounds for the stated requirements were: the absence of a legal entity at the place of registration and the registration of the enterprise on a "fake" person. Including the presence or absence of a guilty verdict or a decision of the criminal prosecution authority to recognize a legal entity as a false enterprise at the time of filing the claim, a total of 284 cases were considered, of which 281 were adjudicated, including 261 with satisfaction of the claim, -20 with refusal to satisfy the claim. Of these, 125 cases were completed in 2014, 125 of them with a decision.; including the satisfaction of the claim – 120, with the denial of the claim – 5; in 2015 – 124 cases, of which with the decision – 121; including the satisfaction of the claim - 113, with the denial of the claim – 8; in the first half of 2016 – 35, of which with the decision decisions – 35, including satisfaction of the claim -28, denial of the claim – 7. Of these, with the presence of a verdict or decision of the prosecution authorities -208; with the absence of a verdict or decision of the prosecution authorities -76. The quality of the administration of justice in cases of the generalized category. In 2014, higher authorities overturned only 4 decisions, or 3.2% of the total number of decisions rendered in cases of this category. Changed 1 decision or 0.8%. In 2015, higher authorities overturned only 2 decisions, or 1.6% of the total number of decisions rendered in cases of this category. Changed 5 decisions or 4%. In the first half of this year, higher authorities cancelled only 4 decisions, or 12.5% of the total number of decisions rendered in cases of this category. Cases on applications from legal entities-counterparties of enterprises whose registration has been declared invalid, challenging tax authorities' notifications. On challenging tax authorities' notifications based on the results of desk control. In the period under review, a total of 535 cases were considered in this category, of which 393 were adjudicated, including 122 with satisfaction of the claim and 271 with denial of the claim. Of these: in 2014, there were 197 cases, of which 143 were adjudicated, including 27 with satisfaction of the claim, 116 with denial of the claim.; In 2015, 169 cases were filed, of which 134 were adjudicated, including 8 with satisfaction of the claim, 126 with denial of the claim; in the first half of 2016, 169 were adjudicated, 116 of them with satisfaction of the claim, 87 with refusal of the claim – 29. The quality of the administration of justice in cases of this category. In 2014, higher authorities overturned only 2 decisions, or 1.3% of the total number of decisions rendered in cases of this category. Changed 2 or 1.3%. In 2015, higher authorities overturned only 4 decisions, or 3% of the total number of decisions rendered in cases of this category. In the first half of this year, higher authorities cancelled only 3 decisions, or 2.5% of the total number of decisions rendered in cases of this category. Changed 2 or 2%. According to the statements of legal entities – counterparties of enterprises whose registration has been declared invalid, challenging the notifications of tax authorities on additional taxes based on the results of a tax audit. In this category, a total of 240 cases were considered in the period under review, of which 156 were adjudicated, including 15 with satisfaction of the claim, 141 with denial of the claim. Of these: in 2014 – 49 cases, of which 40 were adjudicated, including 12 with satisfaction of the claim, 28 with denial of the claim; in 2015 – 54 cases, of which 39 were adjudicated, including 1 with satisfaction of the claim, with refusal of satisfaction of the claim -38; in the first half of 2016 -137, of which 77 were adjudicated, including 2 with satisfaction of the claim, 75 with denial of the claim. The quality of the administration of justice in cases of this category. In 2014, higher authorities overturned only 7 decisions, or 17.5% of the total number of decisions rendered in cases of this category. Changed 3 or 7.5%. In 2015, higher authorities overturned only 3 decisions, or 7.6% of the total number of decisions rendered in cases of this category. Changed 2 solutions or 5%. In the first half of this year, higher authorities cancelled only 1 decision, or 1.2% of the total number of decisions rendered in cases of this category. Changed 1 or 1,2%
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