Legality and validity of the verdict During the pre-investigation check, the criminal prosecution body has no right to require the tax authority to conduct a tax audit.

By the verdict of the judicial board for Criminal Cases of the East Kazakhstan Regional Court dated October 16, 2020: M., who had no previous convictions, was acquitted under part 3 of Article 222 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) (as amended in 1997) for the absence of corpus delicti in his actions. The procedural costs for conducting forensic examinations in the total amount of 73,415 tenge in accordance with part 5 of Article 178 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC) were borne by the state. The decree of the head of the EPR of the UFP in the Semey region dated May 3, 2013 on the seizure of a Kamaz-5320 Mr. F 817 KBN car belonging to M. was canceled by illegal actions of the authorities conducting the criminal process. In the cassation appeal, the Acting Prosecutor General believes that the verdict of the judicial Board for Criminal Cases of the East Kazakhstan Regional Court of October 16, 2020, is subject to cancellation due to the incompleteness of the judicial investigation and the inconsistency of the court's conclusions with the factual circumstances of the case. Requests that the verdict of the appeal be overturned and that the criminal case be sent for a new appeal hearing to the same court with a different composition. In his objection to the protest, the lawyer of the acquitted M.- U. considers that the judicial act is lawful and justified, since it was issued in compliance with all the requirements of criminal and criminal procedure legislation. The Court of Appeal, having examined all the evidence, correctly applied part 1 of Article 34 of the Criminal Code. He asks to leave the protest without satisfaction. By studying the materials of the criminal case, it was established that a rehabilitation procedure was applied to the GKP Teplokommunenergo (hereinafter – GKP) of the city of Semey, which had debts in the amount of 1,170,000,000 tenge, by the decision of the Council of Ministers of the East Kazakhstan region dated September 10, 2008, and a rehabilitation plan was approved. By the ruling of the same court dated June 24, 2011, the rehabilitation period was extended by 2 years, and the rehabilitation plan was changed.  According to the order of the State Institution "Interregional Department of the Committee for Work with Insolvent Debtors" of the Ministry of Finance of the Republic of Kazakhstan "E", M. M. was appointed the rehabilitation manager of the State Enterprise. He was charged with being the rehabilitation manager of the state communal enterprise "T" (hereinafter – GKP) in the city of Semey, in the period from January 1, 2011 to June 30, 2012, he evaded taxes and other mandatory payments to the budget from the organization by making deliberately false income data in the GKP declarations. and expenses, that is, the submission of declarations with zero indicators, which caused damage to the state on a particularly large scale totaling 273,726,223 tenge. M. He did not admit guilt in the charges against him and from the very beginning of the preliminary investigation consistently explained that he had taken over the State Enterprise, which was in a loss-making state, needed major repairs to the boiler rooms, and therefore had to engage in financial management activities to prevent disruption of the heating season, timely payment of wages to the detriment of tax obligations.

Legality and validity of the verdict During the pre-investigation check, the criminal prosecution body has no right to require the tax authority to conduct a tax audit.

The Court of Appeal reasonably based the acquittal on M.'s testimony, as it is stable and consistent with other evidence in the case. M.'s arguments are confirmed by the testimony of witnesses G., V., B., A., G., N., K., O., U., J., B., K., and T. Thus, it follows from the testimony of witness G., Deputy akim of Semey, that the issues of deferring tax payments by M. were raised at each meeting of the operational headquarters established under the Semey city Akimat in preparation for the heating season. In addition, the issue of paying taxes was discussed with the mayor of Semey. at m. at that time, there was no other way out: if taxes were paid, there would be no coal, and the debt to K LLP would not be repaid. The money allocated by the budget was enough for a month's supply of coal, besides, there were debts of previous directors, and the GKP had 18 boiler houses with old equipment on its balance sheet that needed to be repaired. The testimony of witness V., examined by the court of appeal, also established that she, as the head of LLP "Sh", was part of the headquarters, at whose meetings the issue of paying taxes was resolved according to priorities: either taxes would be paid, or the city would be left without coal. The meetings of the headquarters were attended by a representative of the tax authority, who objected to the deferral of taxes. Witness E., a representative of the housing and communal services of the city of Semey, gave similar testimony to the court. An analysis of the testimony of witnesses B. and N. indicates that on the instructions of M. they submitted tax returns with zero figures due to the fact that there was not enough money for repairs and salaries for GKP employees, the company was unprofitable. M. also paid the debts of past managers, the company's tax arrears were repaid in 2013 after the end of the heating season. From the testimony of witness K., the head of the technical department of the State Agricultural Committee, it follows that 170 million tenge is needed for annual repairs, about 3 million tenge for major repairs of equipment, and the repair costs are incomparable. If the technical condition of the GKP is not put in order, this will lead to an increase in accidents. The testimony of witnesses examined by the court – employees of the GKP K., O., U., P., Zh., B., K. and T. indicate that repairs were carried out, wages were paid without delay.

If boilers, pipes and other systems were not repaired, the cities of Semey could be left without heat and electricity. The testimony of the above-mentioned witnesses is confirmed by the conclusion of the commission's forensic economic examination dated March 13, 2014 No. 0159/0362, according to which the State Enterprise in the period from January 1, 2011 to December 31, 2012 was not provided with normal sources of inventory formation, the enterprise was in a pre-crisis state, its financial situation was unstable, its own capital turnover was not He covered these reserves, which forced him to attract additional sources of coverage. The experts noted that as a result of the positive work of the GKP, the balance sheet currency, reflecting the value of assets as of December 31, 2012, increased by 10.47% compared with the situation on January 1, 2011, that is, M.'s activities were recognized as positive. In such circumstances, the court's conclusions that M. was forced to engage primarily in financial and economic activities to provide heat and electricity to organizations and the population of the city of Semey to the detriment of tax obligations are based on the totality of the evidence examined. The panel finds the prosecutor's arguments that the court of appeal improperly applied the norms of tax legislation to be untenable. In accordance with paragraphs 1) and 2) of paragraph 1 of Article 20 of the Tax Code (as amended in 2008), tax authorities are primarily required to respect the rights of the taxpayer (tax agent), and the interests of the state, including the payment of taxes and other mandatory payments to the budget, secondly. It follows from the meaning of the law that in case of non-payment of tax and other payments to the budget, the tax authority had to find out the reason for non-payment, determine the forms and methods of resolving the situation, including granting deferred payments. However, instead, for a year and a half, the tax authority did not take any measures to pay payments to the budget, despite the fact that the State Tax Committee submitted zero declarations on a quarterly basis, and charged only after receiving a task from the financial police authority.

At the same time, the court of appeal correctly took into account the clarifications of paragraph 16 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated February 27, 2013 No. 1 "On judicial practice of applying tax legislation", according to which, during a pre-investigation check, the criminal prosecution body does not have the right to require the tax authority to conduct a tax audit. The illegality of the tax audit is also evidenced by the decision of the Council of Ministers of the East Kazakhstan region of July 5, 2013, as well as the testimony of the representative of the victim S., who explained that the Tax Committee for the city of Semey had no right to conduct an unscheduled audit based on a letter from the financial police (l.d.24 vol.4). Regarding the prosecutor's arguments that It carried out its activities with the support of the Government of the Republic of Kazakhstan, funds allocated from the republican and local budgets. mastered in full, which indicates tax evasion, were the subject of investigation by the court of appeal and they were given a proper legal assessment. All the evidence in the case under consideration, in accordance with Article 125 of the CPC, was examined for their reliability, admissibility and relevance. The court, having reliably established the factual circumstances of the case, came to the correct conclusion that M.'s actions did not constitute a criminal offense under Part 3 of Article 222 of the Criminal Code (as amended in 1997). Based on the above, the judicial board of the Supreme Court for Criminal Cases upheld the verdict of the court of first instance against M. The protest of the Acting Prosecutor General of the Republic of Kazakhstan was left without satisfaction. 

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