The establishment of the actual delivery of goods in court is an unconditional basis for canceling the notification based on the results of desk inspection.

No.6001-23-00-6ap/299 dated 08/10/2023

Plaintiff: JSC "K" (hereinafter – the Company)

Respondent: Russian State Institution "State Revenue Administration"

The subject of the dispute is the recognition of illegal actions to send a notification on the elimination of violations identified by the results of desk control.

Review of the defendant's cassation appeal.

PLOT:

           In the notice No. 1816QJ300003 dated December 31, 2021 issued to the Company by the Office for the period from October 1, 2018 to September 30, 2021, it is indicated that the amounts of VAT for mutual settlements with a taxpayer whose registration was declared invalid were unlawfully attributed, the amount of violation is 2.2 tenge, for a taxpayer whose registration is a court decision that entered into force., declared invalid.

Such a taxpayer is an LLP, the re-registration of which, on the basis of Order No. 2916 dated October 7, 2016, was declared invalid by the IESEC decision of September 24, 2021, which entered into force.

Judicial acts:

1st instance: the claim is satisfied.

Appeal: the decision remains unchanged. Cassation: judicial acts are upheld.

Conclusions:

According to subparagraph 2) of Article 264 of the Tax Code, expenses for transactions performed without the actual performance of work, provision of services, shipment of goods with a taxpayer, the head and (or) 22 founder (participant) of which is not involved in the registration (re-registration) and (or) the implementation of financial and economic activities of such a legal entity, are not deductible. established by a court decision that has entered into legal force, with the exception of transactions for which the court has established the actual receipt of goods, works, and services from such a taxpayer.

In accordance with 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, services provided by 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.

The court has given a correct assessment of the evidence presented and established the fact that the plaintiff received the goods. Thus, according to the supply agreement No. KZ/019/01 concluded on February 8, 2019 between the plaintiff and LLP, the latter supplied voltage transformers NKF 123IIIIHLI in the amount of 6 pieces and current transformers TFZM 123 II-IV UHLI in the amount of 6 pieces for a total amount of 21.1 tenge (including value added tax (VAT) - 12%).

It was this transaction that was the basis for crediting the amount of 2.2 tenge VAT reflected in the electronic invoice issued on behalf of the LLP. The fact of the transaction between the LLP and the Company is confirmed by the invoice for the release of stocks to the party No. 2 dated May 23, 2019, indicating the persons who released and received the goods, and payment orders No. 819 dated February 27, 2019, No. 1537 dated April 3, 2019, the purpose of which explicitly states the payment for transformers with with reference to the delivery agreement dated February 8, 2019. Moreover, the court was provided with evidence of the subsequent sale of the goods by the plaintiff to JSC "K".

Thus, the actual transactions of the plaintiffs are confirmed by the original contracts, primary accounting documents, and the arguments of the complaint about the lack of evidence are not sound.  

 

 

 

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