Commentary to article 473. Disclosure of information constituting a tax secret The Code of the Republic of Kazakhstan on Administrative Offences
Disclosure of information constituting a tax secret without professional or official necessity by persons who have become aware of such information in accordance with the procedure established by the tax legislation of the Republic of Kazakhstan, if this action does not contain signs of a criminally punishable act, -
entails a fine in the amount of forty monthly calculation indices.
The commented article establishes administrative responsibility for the disclosure of information constituting a tax secret.
The generic object of the offense provided for in Article 473 of the Administrative Code is the tax management procedure established in the legislation of the Republic of Kazakhstan and protected by the state.
The direct object of the administrative offense provided for in the commented article is the procedure established in the legislative acts of the Republic of Kazakhstan and protected by the state for the use and protection of information constituting a tax secret.
The subjects of the offense provided for in Article 473 of the Administrative Code are individuals, legal entities and officials of state revenue bodies and other state bodies who, at the request of the Tax Code of the Republic of Kazakhstan, violated their obligation to ensure the safety of information constituting a tax secret that became available to them in connection with the exercise of their professional or official functions.
According to the note to Article 30 of the Administrative Code, officials in the Administrative Code are recognized as persons who, permanently, temporarily or by special authority, perform or were performing at the time of the commission of an administrative offense the functions of a government representative or who were performing or were performing at the time of the commission of an administrative offense organizational, administrative or economic functions in state institutions, quasi-public sector entities, local governments.
At the same time, at the request of the norm of Article 30 of the Administrative Code, an official is held administratively liable if he commits an administrative offense in connection with non-fulfillment or improper performance of his official duties. In the absence of this circumstance, an official guilty of committing an administrative offense is liable on general grounds.
The subjective side of the acts provided for in Article 473 of the Administrative Code is characterized by guilt in the form of intent or negligence on the part of individuals and officials who committed the offense. The guilt of an individual and an official is revealed by their mental attitude towards the illegal acts committed by them and the harmful consequences that have occurred.
The subjective side of offenses, the subjects of which are legal entities, is not subject to determination due to the existence of a legal requirement to establish guilt as a condition for bringing to administrative responsibility, only in relation to individuals. According to the legislation of the Republic of Kazakhstan on administrative responsibility, legal entities are administratively liable for the mere fact that they have committed an illegal act or omission, for which administrative liability is provided for in the Administrative Code, without taking into account the guilt of the authorized persons of the legal entity who committed this act.
The objective side of the administrative offense provided for in Article 473 of the Administrative Code is expressed in the commission by a person of illegal actions (inaction) in the form of disclosure of information constituting a tax secret, without professional or official necessity.
The concept of "tax secrecy" is defined in paragraph 1 of Article 30 of the Tax Code of the Republic of Kazakhstan. According to the norm of this article, any information received by the tax authority about a taxpayer (tax agent) is a tax secret, with the exception of the information listed in paragraph 1 of Article 30 of the Tax Code of the Republic of Kazakhstan.
As required by clauses 2 and 5 of Article 30 of the Tax Code of the Republic of Kazakhstan, information about a taxpayer (tax agent) that is a tax secret may not be submitted by the tax authorities to another person without the written permission of the taxpayer (tax agent), unless otherwise established by Article 30 of the Tax Code of the Republic of Kazakhstan. Tax secrecy is not subject to disclosure by persons who have access to tax secrecy, both during the performance of their duties and after the completion of their duties.
The persons to whom the tax authorities have the right, without the written permission of the taxpayer (tax agent), to transfer information constituting a tax secret, in the cases, procedure and scope provided for by the legislator, are defined in paragraph 3 of Article 30 of the Tax Code of the Republic of Kazakhstan. The transfer of information constituting a tax secret to such persons does not constitute their disclosure by the tax authorities and, accordingly, does not constitute an administrative offense provided for in the commented article.
Persons to whom the tax authorities have transferred information constituting a tax secret are also required to ensure their non-disclosure, and in the case of their unlawful disclosure, they will be liable in accordance with the commented article.
Disclosure (illegal dissemination) of information constituting a tax secret is understood as unauthorized communication, transmission, provision, forwarding, publication or communication of information constituting a tax secret by any other means to legal entities, individuals and officials who, by law or with the written permission of a taxpayer (tax agent), are not granted the right of access and (or) familiarization with this information.
The dissemination of information provided for by the Tax Code of the Republic of Kazakhstan or other legislative acts of the Republic of Kazakhstan in connection with its use by authorized persons for professional or official purposes will not constitute disclosure of tax secrets.
Cases of irretrievable or temporary loss of documents or other media containing tax secrets, or loss of control over them by officials and (or) employees of state revenue bodies, other state bodies and other persons, also pose a real threat to the disclosure of information constituting a tax secret.
The loss of documents containing information that constitutes a tax secret is understood as their disposal (including temporary) from the actual possession and use of state revenue bodies or other state bodies against the will of officials and employees of these bodies (including through theft by third parties, physical destruction as a result of force majeure events) or culpable (intentional or negligent) as a result of violation of the established rules for handling specified documents (loss, storing them in unintended and specially unsuited places, leaving them in publicly accessible or unguarded places).
Unlawful acts committed by obligated persons to disclose information constituting a tax secret entail administrative liability only if they do not have signs of a criminally punishable act provided for in the Criminal Code.
The composition of the offense provided for in the commented article is formal. In order to bring a person to administrative responsibility and calculate a fine under the commented article, it is not necessary to establish the fact of causing and the amount of damage caused by the failure of the obligated person to comply with the tax secrecy regime.
However, if it is established that damage has been caused to the state and/or the taxpayer (tax agent) from the commission of an administrative offense provided for in the commented article, such damage, according to Part 5 of Article 55 of the Administrative Code, may be recovered from the offender according to the rules of Article 59 of the Administrative Code in addition to a fine.
For the commission of an offense provided for in the commented article, the person who committed it is punished with a fine. The fine is collected from the offender at his own expense.
The amount of the fine for committing an offense under Article 473 of the Administrative Code is 40 MCI, is fixed and is not subject to change by the body imposing it.
A fine is imposed by the state revenue authorities, the authorized body for civil service affairs and anti-corruption, or the court, in the case of an administrative offense case in court.
The authorized Body for Civil Service Affairs and Anti-Corruption examines the case and imposes a fine under the commented article, in particular, on officials and employees of state revenue bodies if they commit the specified offense.
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.);
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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