Tax disputes on the recognition of a notification as unfulfilled are accepted by the tax authority only in case of violation by the taxpayer of the form and deadlines for the execution of the notification.,
Private bailiff (hereinafter referred to as CSI) T. filed a lawsuit with the republican state institution "State Revenue Administration for the city of Petropavlovsk of the Department of State Revenue for the North Kazakhstan region" (hereinafter referred to as the Russian State University, the tax authority) to declare the decision of August 5, 2020 illegal. The decision of the court No. 2 of Petropavlovsk, North Kazakhstan region, dated September 29, 2020, denied the application. By the resolution of the Judicial Board for Civil Cases of the North Kazakhstan Regional Court dated December 25, 2020, the court's decision remained unchanged. The Judicial Board for Civil Cases of the Supreme Court overturned the judicial acts of local courts and issued a new decision in the case to satisfy the claim of CHSI T., the actions of the State Revenue Administration for the city of Petropavlovsk of the Department of State Revenue for the North Kazakhstan Region were declared illegal by the decision of August 5, 2020 No. D48142O400019001 on notification dated June 8, 2020. year No. 48142O400019 for the following reasons. It follows from the case file that the tax authority in relation to CHSI T. a desk check of tax reporting on form 240 00 for 2018 was conducted, according to the results of which the income of the CSI for 2018 amounted to 5,226,173 tenge, however, according to the tax reporting, the declared income was 4,204,960 tenge, while the amount of deviation was 1,021,213 tenge, therefore, the tax authority concluded that in the actions of the CSI the tax amounts were calculated incorrectly. In this regard, the tax authority has issued a notification to CHSI T. on the elimination of violations identified by the state revenue authorities based on the results of desk control dated June 8, 2020 No. 48142O400019. On July 20, 2020, CHSI T., in response to the notification from the tax authority, provided a written explanation according to the submitted list of debtors. Based on the results of the review of the explanation, the tax authority made a decision on August 5, 2020 No. D48142O400019001 on recognizing as unfulfilled the notification on the elimination of violations identified by the state revenue authorities based on the results of desk control, with reference to the fact that the applicant had not fully eliminated the violation. CHSI T., disagreeing with the decision of the tax authority dated August 5, 2020, appealed to the court with a statement declaring the action of the tax authority to make the decision illegal.
Tax disputes on the recognition of a notification as unfulfilled are accepted by the tax authority only in case of violation by the taxpayer of the form and deadlines for the execution of the notification.,
The local courts, having recognized that the explanation provided by CHSI T. does not meet the requirements of subparagraph 2) of paragraph 2 of Article 96 of the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget" (hereinafter referred to as the Tax Code), since she has not submitted documents confirming the payment of individual income tax on income received in enforcement proceedings against S., N., Z., and in respect of some debtors, there were no documents confirming the explanation of enforcement proceedings, and the application was refused. In addition, the local courts indicated that the applicant, after filing a claim with the court, provided additional tax statements of form 240.00 for 2018 on August 21, 2020. In this regard, the order to suspend spending operations on bank accounts was withdrawn, and an opinion was issued confirming the results of desk control. In the petition, the applicant indicates that the conclusions of the local courts are not based on the norms of the law, the explanation provided by her complies with the requirements of tax legislation. According to subparagraph 2) of paragraph 2 of Article 96 of the Tax Code, the execution of a notification based on the results of desk control is recognized – in case of disagreement with the violations indicated in the notification - the provision by the taxpayer (tax agent) of explanations on the violations identified on paper or electronically to the tax authority. If documents are indicated in the explanation as the basis for the disagreement of the person who provided the explanation, then copies of the documents indicated in the explanation, except for tax reports, must be attached to the explanation. Presentation of other documents as part of the execution of the notification by providing an explanation is not required. The Board considers that the indicated methods of execution by the taxpayer of notifications on the elimination of violations identified by the results of desk control are exhaustive.
It follows from the content of subparagraph 2) of paragraph 2 of Article 96 of the Tax Code that in the event of a taxpayer's disagreement with the notification, it is sufficient to indicate the circumstances that are the grounds and evidence of his disagreement, and it is also necessary to attach copies of the documents to which the taxpayer refers in the explanation as evidence. According to paragraph 19 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan "On judicial practice of applying Tax Legislation" dated June 29, 2017 No. 4, when a taxpayer challenges actions and acts of state revenue bodies related to non-fulfillment of a notification based on the results of desk control, the court verifies the compliance of explanations with the requirements of tax legislation. When considering such civil cases, taking into account the above-mentioned provision of the Tax Code, it is necessary to resolve the issue of the legality of the grounds indicated in the notifications without verifying their validity on the merits. Otherwise, the results of future tax audits will be predetermined, including an unscheduled thematic audit on the issue of non-compliance with the notification based on the results of desk control. By virtue of paragraph 4 of Article 96 of the Tax Code, a decision to declare a notification unfulfilled is taken by the tax authority only if the taxpayer violates the form and deadline for the execution of the notification established by subparagraph 2 of paragraph 2 of Article 96 of the Tax Code. In these circumstances, the board considers that the applicant has submitted an explanation in the prescribed form and within the time limits provided for in subparagraph 2) paragraph 2 of Article 96 of the Tax Code, in connection with which the notification is deemed executed by virtue of the specified norm. The tax authority had no legal grounds for making a decision to declare the notification unfulfilled without conducting an appropriate tax audit. According to paragraphs 1, 4 of Article 8 of the Tax Code, the conscientiousness of the taxpayer's actions to fulfill his tax obligations is assumed. A violation of the tax legislation of the Republic of Kazakhstan committed by a taxpayer must be described during tax audits. The substantiation of arguments and disclosure of circumstances indicating a violation of the tax legislation of the Republic of Kazakhstan are the responsibility of the tax authorities.
In this case, the issue of the possibility of actually providing services and performing work is subject to resolution only during the tax audit, but not within the framework of desk control. At the board meeting, the representative of the applicant, B., explained that they had been provided with additional tax statements of form 240.00 for 2018 on August 21, 2020, in order to avoid violating the rights of third parties in enforcement proceedings. In this regard, the tax authority revoked the order to suspend spending operations on bank accounts. The Board agrees with the stated argument of the applicant's representative B., since the additional tax statements were provided by the applicant on August 21, 2020, not to confirm agreement with the violations indicated in the notification, but in order to avoid suspension of spending operations on bank accounts. In agreement with the notification, the applicant submits tax reports within thirty business days from the day following the day of delivery (receipt) of the notification, that is, until July 22, 2020. In such circumstances, the case does not require the collection and additional verification of evidence, the circumstances of the dispute are fully established, however, the courts of first and appellate instances made an error in the interpretation and application of substantive law. In this regard, the judicial board considers that the contested judicial acts should be annulled with the issuance of a new decision in the case to satisfy the application of CHSI T.
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