Commentary to article 474. Carrying out certain actions by bodies (organizations) authorized by the state without collecting taxes and other mandatory payments to the budget, as well as without obtaining documents confirming such payment  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. Implementation by bodies (organizations) authorized by the state of legally significant actions provided for by the legislation of the Republic of Kazakhstan, without levying taxes and other mandatory payments to the budget -

     entails a fine for officials in the amount of thirty monthly calculation indices.

     2. The implementation by bodies (organizations) authorized by the state of legally significant actions provided for by the legislation of the Republic of Kazakhstan, without obtaining a document confirming the payment of taxes and other mandatory payments to the budget, in cases where the receipt of a supporting document is provided for by legislative acts, -

     entails a fine for officials in the amount of thirty monthly calculation indices.

     3. The actions provided for in the first and second parts of this Article, committed repeatedly within a year after the imposition of an administrative penalty, -

     they impose a fine on officials in the amount of seventy monthly calculation indices.

     The commented article establishes administrative responsibility for the implementation by bodies (organizations) authorized by the state of legally significant actions provided for by the legislation of the Republic of Kazakhstan, without collecting taxes and other mandatory payments to the budget, as well as without obtaining a document confirming the payment of taxes and payments to the budget, in cases where the need to obtain a supporting document is provided for by legislative acts.

     The generic object of the offense provided for in Article 474 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 taxing and other payments to the budget of legally significant actions performed by bodies (organizations) authorized by the state.  

     Legally significant actions of bodies (organizations) authorized by the state to commit them in favor of applicants and other interested parties include actions of state bodies (state notarial, judicial, consular) directly provided for by legislative acts of the Republic of Kazakhstan and having legal consequences for applicants and other interested parties (in the form of the emergence, modification or termination of their legal relations)., registration, authorization, certification actions, legalization and apostillation actions, etc.), for the commission of which, in favor of the applicant, he must first pay to the state budget a state fee, a consular fee or other taxes or payments to the budget established in the Tax Code of the Republic of Kazakhstan.

     The subjects of the offense provided for in Article 474 of the Administrative Code are officials of bodies (organizations) authorized by the state who have violated the requirement for them under the Tax Code of the Republic of Kazakhstan to perform legally significant actions with mandatory preliminary or simultaneous collection of taxes and payments to the budget, or only after presenting a document confirming such payment of taxes or payments to the budget..  

     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 474 of the Administrative Code is characterized by guilt in the form of intent or negligence of the officials who committed the offense. The guilt of an official is revealed by his mental attitude towards the illegal acts committed by him and the harmful consequences that have occurred.  

     Part 1 of the commented article establishes administrative responsibility for the commission by an official of a body (organization) authorized by the state of legally significant actions provided for by the legislation of the Republic of Kazakhstan, without levying taxes and other mandatory payments to the budget.

     The objective side of the administrative offense provided for in Part 1 of Article 474 of the Administrative Code is expressed in the commission by an official on behalf of bodies (organizations) authorized by the state of legally significant actions provided for by the legislation of the Republic of Kazakhstan, without levying taxes and other mandatory payments to the budget, when the obligation to collect them by an official of a state body or an organization authorized by the state for their commission legally significant actions are established in the Tax Code of the Republic of Kazakhstan.

     The commented norm does not apply to cases when legally significant actions should be carried out by an official of a body (organization) authorized by the state without levying taxes and other mandatory payments to the budget by virtue of a direct indication of this in the Tax Code of the Republic of Kazakhstan and other regulatory legal acts provided for by it (tax-free receipt of legally significant actions or their exemption the recipient from paying taxes and payments to the budget according to the law).

     The composition of the offense provided for in Part 1 of 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 and amount of damage caused to the state from the failure of the obligated person to collect taxes or payments to the budget.  

     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, is subject to recovery 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 official who committed it is subject to punishment in the form of a fine. The fine is collected from the offender at his own expense and cannot be imposed on the state body (organization) on whose behalf the official acts.

     The amount of the fine for committing an offense under Part 1 of Article 474 of the Administrative Code is 30 MCI, is fixed and is not subject to change by the body imposing it.  

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

     Part 2 of the commented article establishes administrative responsibility for the commission by an official of a body (organization) authorized by the state of legally significant actions provided for by the legislation of the Republic of Kazakhstan, without obtaining a document confirming the payment of taxes and other mandatory payments to the budget, in cases where the receipt of a supporting document is provided for by legislative acts.

     The objective side of the administrative offense provided for in Part 2 of Article 474 of the Administrative Code is expressed in the commission by an official on behalf of bodies (organizations) authorized by the state of legally significant actions provided for by the legislation of the Republic of Kazakhstan, without obtaining a document confirming the payment of taxes and other mandatory payments to the budget, in cases where the receipt of a supporting document is provided for by legislative acts.

     Such a supporting document is a payment order, receipt, receipt and other paper or electronic payment documents of the taxpayer (originals) confirming the payment by the taxpayer on his own behalf and at his own expense to the state budget of the amount of tax or other payment to the budget established in the Tax Code of the Republic of Kazakhstan or pre-calculated in accordance with the Tax Code of the Republic of Kazakhstan for the commission in his in the interests of a body (organization) authorized by the state, legally significant actions.  

     With regard to cases of verification by the courts of the fact of payment of state duty when filing a claim with the court, the Supreme Court of the Republic of Kazakhstan in its regulatory resolution indicated that payment orders, checks, receipts and other paper and electronic documents issued when making payments in compliance with the requirements of the Law of the Republic of Kazakhstan dated July 26, 2016 are proof of the fact of payment of state duty to the budget. No. 11-VI "On Payments and Payment Systems", including through the electronic Government payment gateway, electronic terminals, ATMs and other electronic devices used to make payments. The court should not accept photocopies of the above-mentioned supporting documents. The issuance of the original payment document from a civil case at the request of the payer is prohibited, except in cases established by legislative acts."

Unlike the composition of an administrative offense provided for in Part 1 of the commented article, an official of a body (organization) authorized by the state to commit legally significant actions, in order to qualify his act as an offense under Part 2 of the commented article, is not obliged to directly charge the applicant the amount of tax or other payment established for this in the Tax Code of the Republic of Kazakhstan. the budget.  

     In order to qualify the offender's act under Part 2 of the commented article, the official was obliged to obtain from the applicant, prior to performing legally significant actions, a document confirming the payment of tax or other payment to the budget for performing legally significant actions, and to verify the correctness of the calculation and payment of the amount of tax or payment to the budget, as well as the proper execution of the supporting document, but not it did this.

     The commented norm does not apply to cases when legally significant actions by an official of a body (organization) authorized by the state must be carried out without collecting taxes and payments to the budget and, accordingly, without providing documents confirming such payment by virtue of a direct indication of this in the Tax Code of the Republic of Kazakhstan. These are cases of tax-free receipt by the applicant of the results of legally significant actions or legally stipulated cases of exemption of their recipient from taxes and payments to the budget.

     As the Supreme Court of the Republic of Kazakhstan pointed out in its regulatory ruling in relation to cases of establishing the facts of the applicant's exemption from payment of state duty when filing a claim with the court, "the plaintiff's exemption from payment of state duty is possible only by virtue of a direct indication of the law, and therefore, a special ruling on this is not required. A statement of claim that does not have a document confirming payment of the state fee attached, or payment was not made in full or according to inappropriate details (beneficiary, code, CBC, etc.) in accordance with Article 152 of the CPC is subject to refund, since non-payment of the state fee prevents the initiation of a civil case."

     The composition of the offense provided for in Part 2 of 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 collect taxes or payments to the budget.  

     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, is subject to recovery 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 official who committed it is subject to punishment in the form of a fine. The fine is collected from the offender at his own expense and cannot be imposed on the state body (organization) on whose behalf the official acts.

     The amount of the fine for committing an offense under Part 2 of Article 474 of the Administrative Code is 30 MCI, is fixed and is not subject to change by the body imposing it.  

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

     Part 3 of the commented article establishes a more severe penalty for repeated commission of any of the acts provided for in parts 1 or 2 of the commented article within a year after the imposition of an administrative penalty.  

     At the same time, the object, the subjective side and the subjects of the offense provided for in Part 3 of the commented article coincide in their characteristics with the object, the subjective side and the subjects with any of the offenses provided for in Part 1 or 2 of Article 474 of the Administrative Code.  

     In the description of the objective side of the offense provided for in Part 3 of Article 474 of the Administrative Code, a sign of repetition is added to any of the acts provided for in parts 1 or 2 of the commented article.  

     An offense is considered to have been committed repeatedly if a person has previously committed any of the acts provided for in Part 1 or 2 of Article 474 of the Administrative Code, has been subjected to administrative punishment for it, and the one-year period during which the person is considered to have been subjected to administrative punishment has not expired yet.

     The repetition of an offense is an independent qualifying feature, entailing the qualification of an unlawful act as an independent element of an offense under Part 3 of Article 474 of the Administrative Code.  

     Repetition as a qualifying feature is established not only in fact by identifying the number and nature of the unlawful acts committed by the violator during the year, but also legally by establishing the fact of bringing this person to administrative responsibility for committing any of the offenses provided for in Parts 1 or 2 of Article 474 of the Administrative Code, the existence of an effective resolution of the state revenue authority or court on the imposition of an administrative penalty under Part 1 or 2 of art. 474 of the Administrative Code, the fact of its announcement, delivery or referral to an official and the expiration of a one-year period from the date of imposition of the penalty.

     If an official has committed an illegal act repeatedly or continues to commit it after the start of the commission and until it is revealed, but until that moment he has not previously been brought to administrative responsibility under Part 1 or 2 of Article 474 of the Administrative Code, then bringing him to responsibility under Part 3 of Article 474 of the Administrative Code is impossible, since there is no qualifying feature repetitions. In this case, the official must be brought to administrative responsibility and punished, depending on the nature of the act committed, according to Part 1 or 2 of art. 474 of the Administrative Code, even if there are signs of repeated violations during the year and the uniformity of violations committed.  

     For repeated commission of any of the offenses provided for in Parts 1 or 2 of Article 474 of the Administrative Code within a year after the imposition of the penalty, the offender is punished with a fine.  

     The amount of the fine for committing an offense under Part 3 of Article 474 of the Administrative Code is 70 MCI, is fixed and is not subject to change by the body imposing it.  

     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  

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases