A claim to reduce the amount of tax and cancel the penalty, recognizing the property as the common property of the spouses
The plaintiff A. The defendant applied to the court with a claim for the cancellation of the notification of the RSU" Department of state revenue for Kyzylorda city of the Department of state revenue for the Kyzylorda region of the state Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan (hereinafter referred to as the Department, Tax Authority) No. 331028900204 dated November 24, 2017, or for reducing the amount of tax and canceling the penalty, recognizing the property as the common property of the spouses. By the decision of the Kyzylorda City Court of February 19, 2018, the statement of claim was partially satisfied, that is, the notification of the Department No. 331028900204 dated November 24, 2017 was canceled, and the rest of the statement was dismissed. By the decision of the Judicial Board of the Kyzylorda regional court for civil cases dated May 28, 2018, the court of first instance made a new decision to cancel the part of the decision that satisfied the application, leaving it unsatisfied in this part. A. in his petition, he disagreed with the act of the court of Appeal adopted in the case, indicating that the findings do not correspond to the circumstances of the case, and asked to cancel the decision and make a new decision on the satisfaction of the statement of claim. According to the materials of the case, the ownership of the apartment 31, 13 H. Bekturganov Street, Kyzylorda, was recognized in the name of E. in 1995 on the basis of a purchase and sale agreement. This real estate was transferred to E.'s spouse A. on the basis of the apartment donation agreement No. 1966 dated April 13, 2016.
A claim to reduce the amount of tax and cancel the penalty, recognizing the property as the common property of the spouses
The apartment donation agreement was registered with the authorized body on April 14, 2016. The donee of the donated real estate A. on the basis of the purchase and sale agreement No. 3-2761 dated June 13, 2016 sold the apartment to zh. for 3,600,000 tenge, and the buyer's ownership rights were registered with the authorized body on June 14, 2016. According to the legal cadastre in the letter of the Department of Justice of Kyzylorda region dated August 16, 2017 No. 6-9/13349, A. It is established that the individual A. owned the apartment 31, 13 H. Bekturganov street, Kyzylorda, less than a year from the date of registration of ownership of real estate. Plaintiff A. for late fulfillment of tax obligations, failure to submit a personal property tax return and non-payment of tax payments on personal property income, a notification No. 331028900204 was sent to him on November 24, 2017 on the elimination of identified violations of the law. However, A. did not agree with this notice and went to court. The court of first instance partially satisfied the claim of A., That is, the apartment 31 in Kyzylorda, H. Bekturganov Street, house No. 13, was donated to A. by his wife E. The ownership of this property was registered on August 29, 1995, the marriage between A. and E. was registered in the registry office on October 20, 1974, the marriage was not dissolved, so the apartment is the property acquired during the marriage of the spouses. Therefore, it was concluded that the apartment is not subject to income from the sale of property. However, when the appellate court changed the decision, it was concluded that A.'s ownership of this apartment was registered on April 14, 2016, and he sold this apartment for 3,600,000 tenge during the year, that is, on June 14, 2016. These conclusions of the said Court of Appeal, being unreasonable, contradict the norms of the law.
In part of the claim of the plaintiff A. to reduce the amount of tax and cancel the penalty, recognizing the property as the common property of the spouses, the courts made a legitimate and reasonable decision not to satisfy the application, however, the defendant did not challenge this part of the judicial acts. In accordance with article 331 of the Code of the Republic of Kazakhstan "on taxes and mandatory payments to the budget (tax code)", income from the increase in value during the sale of property by an individual arises when the following property is sold: 1) residential buildings, country houses, garages, objects of personal subsidiary farming that were on the right of ownership in the territory of the Republic of Kazakhstan less than one year from the date of registration of ownership. When selling property specified in subitems 1)-7) of Item 1 of this article, the positive difference between the sale price (cost) of property and the price (cost) of its acquisition is the income from the increase in value. In accordance with the requirements of this law, a tax obligation arises if the ownership of immovable property is in the right of ownership for less than one year from the date of registration. According to Article 223 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), any movable and immovable property acquired by spouses during marriage is joint common property subject to Division. In accordance with Part 1 of Article 33 of the Code of the Republic of Kazakhstan "on marriage and family", property acquired by spouses during marriage (matrimony) is their joint common property. As it turned out from the case materials, the above apartment was occupied by spouses A. and E. jointly acquired and registered ownership in the name of the latter on the basis of a purchase and sale agreement on September 29, 1995, and the apartment was jointly owned by the spouses as common property for 21 years. This property was presented to his wife EA on April 13, 2016. The judicial board considers that when buying this apartment in 1995, the Appellate Judicial Board did not take into account the absence of legal norms in the legislation of the Republic of Kazakhstan that the common property of spouses must be registered equally in the name of both. In accordance with Part 2 of Article 160 of the civil code, if the transaction is concluded in order to cover up another transaction (by cunning), the provisions relating to the transaction actually intended by the parties shall apply.
The judicial board recognizes the contract for the donation of an apartment as concluded by the parties instead of actually issuing a power of attorney, therefore, the contract for the donation of an apartment is subject to invalidation. In this context, there was no reason for the tax authority to issue a controversial notice, because this apartment cannot be considered as belonging to A. only on April 14, 2016, this apartment has been in his ownership since 1995. The court of Appeal, when considering the case, did not take into account these circumstances, did not correctly assess the legal relations between the parties and the evidence presented, as a result of which it adopted an illegal judicial act. These violations are the basis for the cancellation of judicial acts adopted in the case in accordance with Part 5 of Article 438 of the Civil Procedure Code of the Republic of Kazakhstan and paragraph 30 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated March 20, 2003 No. 2 "on the application by courts of certain norms of Civil Procedure legislation". On the basis of the above, the Judicial Board of the Supreme Court of the Republic of Kazakhstan for civil cases changed the decision of the court of Appeal, that is, canceled the part of this decision that changed the decision of the Kyzylorda City Court on February 19, 2018, and left the decision of the court of first instance in this part of the case. The remaining part of the judicial act was left in force, and the petition of the plaintiff A. was satisfied.
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