Taxpayer's statement on challenging the notification based on the results of desk control
T. appealed to the court with a statement to the RSU "UGD in the Nauryzbay district of the State Duma of the City of Almaty" to declare illegal the notification of the elimination of violations based on the results of desk control issued in connection with the sale of her real estate – a shopping complex. The decision of the Medeu District Court of Almaty dated May 27, 2020 denied the application. By the decision of the Court of Appeal of the Almaty City Court dated October 14, 2020, the court's decision was overturned, and a new decision was made to satisfy the application. By the decision of the court of cassation of March 31, 2021, the judicial acts that took place in the case were canceled, the proceedings were terminated on the following grounds. According to paragraph 2 of Article 96 of the Tax Code, the taxpayer's (tax agent's) execution of a notification on the elimination of violations identified by the tax authorities based on the results of desk control is recognized in case of disagreement with the violations indicated in the notification - the taxpayer's submission of an explanation on the violations identified on paper or electronically to the tax authority that sent the notification on the elimination of violations identified by the tax authorities based on based on the results of desk control, with the exception of the cases provided for in paragraph 3 of this article. In this case, T., disagreeing with the notification, submitted an objection to the tax authority on May 6, 2019.
Taxpayer's statement on challenging the notification based on the results of desk control
In response to T.'s objection, the tax authority indicated that the notification had been deemed unfulfilled, and a letter had been sent to her. In accordance with paragraph 2 of Article 65 of the Law "On Legal Acts", a legal act of individual application is terminated from the moment its requirements or instructions contained therein are fulfilled by the persons to whom this legal act is addressed. According to paragraph 19 of the NP "On Judicial Practice of applying Tax Legislation", in connection with the first part of Article 293 of the CPC, a taxpayer's application to challenge a notification based on the results of desk control performed by him using one of the above methods is not subject to consideration and resolution in civil proceedings. The judge refuses to accept such an application (subparagraph 1) of the first part of Article 151 of the CPC), and in the event of a civil case, the court terminates proceedings on it (subparagraph 1) of Article 277 of the CPC). In these circumstances, the local courts incorrectly applied and interpreted the norms of substantive law. Since T., having submitted an objection to the notification based on the results of the desk inspection, complied with it, her application to challenge the notification based on the results of the desk inspection was not subject to consideration and resolution in civil proceedings, and the court should have terminated the proceedings. Taxpayers indicate in their statements that they are classified as medium-risk taxpayers, therefore, on the basis of the above-mentioned norm of the Tax Code, the state revenue authority should issue a notice in relation to them, not a notification.
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