Commentary to article 280. Fictitious invoice statement  The Code of the Republic of Kazakhstan on Administrative Offences  

     Taxpayer's statement of a fictitious invoice -

     entails a fine on small businesses in the amount of one hundred, on medium-sized businesses - in the amount of two hundred, on large businesses - in the amount of three hundred percent of the amount of value-added tax included in the invoice.

     Note. A fictitious invoice is an invoice issued by a payer who is not registered for value-added tax, as well as by a person who did not actually perform work, provide services, or ship goods, and includes the amount of value-added tax.

     The commented article establishes administrative responsibility for the taxpayer's statement of a fictitious invoice.  

     The generic object of an administrative offense provided for in Article 280 of the Administrative Code is the procedure for taxation and tax administration of tax relations established in the Tax Code of the Republic of Kazakhstan.

     The direct object of the administrative offense provided for in Article 280 of the Administrative Code is the procedure established in the Tax Code of the Republic of Kazakhstan for processing, issuing and accounting invoices by VAT payers.

     The objective side of the administrative offense provided for in Article 280 of the Administrative Code is characterized by the commission by the taxpayer of culpable illegal actions, expressed in the preparation, registration and provision by taxpayers of VAT invoices to their counterparties in cases when such taxpayers are not registered with the state revenue authorities as VAT payers or are registered as such, but actually They do not ship goods, perform work, and/or provide services based on invoices issued by them.  

     An invoice is a document mandatory for VAT payers, which is issued by them when making sales of goods, works, and services in electronic form in the form established by the authorized body, including the amount of VAT for taxable turnover and without including the amount of VAT for non–taxable (including exempt) turnover. An invoice issued by a payer registered as a VAT payer for the goods, works and services actually sold by him to his counterparties and corresponding to the requirements of art. 412 of the Tax Code of the Republic of Kazakhstan is the basis for the assignment of VAT included in the invoice by counterparties in accordance with art. 400 of the Tax Code of the Republic of Kazakhstan and reduction of VAT to the budget by its amount.  

     Accordingly, according to the note to Article 280 of the Administrative Code, a fictitious invoice is an invoice issued by a payer who is not registered for VAT, as well as by a person who did not actually perform work, provide services, or ship goods, and includes the amount of VAT. Thus, invoices that initially do not include VAT (on non-taxable turnover, including exempt turnover) will not be recognized as fictitious for the purposes of applying Article 280 of the Administrative Code.

     280 of the Administrative Code are also not punishable by the actions of taxpayers registered for VAT to receive and use fictitious invoices in their tax accounting and (or) reporting on VAT or income tax.  

     The subjects of the administrative offense provided for in Article 280 of the Administrative Code are only taxpayers who may or may actually be VAT payers – individual entrepreneurs and commercial organizations (subjects of small, medium and large businesses).  

     280 of the Administrative Code, other categories of taxpayers who initially cannot be VAT payers (individuals, non-profit organizations, non-residents who do not have branches or representative offices in the Republic of Kazakhstan), as well as other participants in tax legal relations (tax collectors, tax agents, payment operators, tax representatives) are not subjects of an administrative offense.  

     Taxpayers who receive fictitious invoices are not subjects of the offense provided for in Article 280 of the Administrative Code, and the sanctions provided for in the commented article cannot be applied to them.

     The subjective side of an administrative offense under Article 280 of the Administrative Code is characterized by guilt in the form of intent. The taxpayer is aware of the illegal nature of his action to issue a fictitious invoice, including VAT, when he does not have the right to issue such an invoice or when he does not carry out and does not plan to carry out the actual shipment of goods, work or services on it, anticipates the onset of socially dangerous consequences from his actions in the form of underestimation. The counterparty has VAT amounts due and wants them to occur or does not want them, but deliberately allows them to occur or treats them indifferently.  

     The composition of the administrative offense provided for in Article 280 of the Administrative Code is formal. In order to bring a taxpayer to administrative responsibility under Article 280 of the Administrative Code, it is not necessary to establish the fact of causing material damage to the state in the form of unpaid taxes. Given the initially fictitious nature of the invoices issued as part of the commission of the offense, the taxpayer who issues them does not have any tax obligations on them. Accordingly, such a taxpayer cannot be objectively charged and charged the amount of VAT. Moreover, for the VAT-paying counterparty who accepted the fictitious invoice and unreasonably attributed the VAT accrued to him in the fictitious invoice to offset when calculating the amount of VAT payable, such unreasonably accepted VAT is subject to reduction (exclusion from offset).

     However, nevertheless, due to the special social danger of the offense provided for in Article 280 of the Administrative Code, the amount of the fine imposed on offenders of small, medium and large businesses is calculated depending on the amount of VAT included in the fictitious invoice (although it is not subject to accrual and payment to the budget in due to the absence of the VAT objects themselves from the offender), and may amount to 100, 200 and 300%, respectively.  

     The offense is considered to have been committed at the moment when the taxpayer issued and handed over a fictitious invoice to his counterparty, who accepted and reflected it in his tax accounting and VAT reporting.  

     Identification of a fictitious invoice is possible in the information system of electronic invoices of the authorized body, as well as in the tax accounting and tax reporting of persons who are VAT payers and who have used the VAT accrued to them in the invoice to offset it when reducing the amount of VAT payable.

     The legislator has imposed a fine for committing an administrative offense under Article 280 of the Administrative Code.:  

     1) for small businesses – 100% of the VAT amount included in the invoice,  

     2) for medium–sized businesses - 200% of the VAT amount included in the invoice,  

     3) for large business entities – 300% of the VAT amount included in the invoice.

     A fine is imposed by the state revenue authorities or the court, in the case of an administrative offense case in court.

Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:

     Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);

     Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;

     Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);  

     Alexander Vladimirovich Karpekin, Candidate of Law, Associate Professor – chapter 13 (in collaboration with A.M. Zhusipbekova);

     Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;

     Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;

     Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;

     Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);

     Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);  

     Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;

     Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;

     Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);

     Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;

     Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;  

     Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);  

Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;

     Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.  

     Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).

Date of amendment of the act:  01.01.2020 Date of adoption of the act:  01.01.2020 Place of acceptance:  100050000000 Authority that adopted the act: 103001000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  5 Status of the act:  new Sphere of legal relations:  029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act:  COMM / CODE Legal force:  1900 Language of the Act:  rus  

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