Appealing against the actions of the bailiff
The amount of alimony for the income of an individual entrepreneur should be calculated from the income indicated in the declaration, minus expenses related to entrepreneurial activity and tax paid. A. filed a lawsuit against the actions of the bailiff of the executive district of Astana Z. The claim was dismissed by the decision of the Yessil District Court of Astana on June 26, 2017. By the resolution of the Judicial Board for Civil Cases of the Astana City Court dated August 25, 2017, the decision of the court of first instance remained unchanged. In the petition of A. Requests to cancel the judicial acts that took place and make a new decision on the satisfaction of the complaint, pointing out that the courts incorrectly established the circumstances of the case, violated the norms of substantive law, and did not fully investigate the evidence presented, which was not given a proper legal assessment. 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 A.'s claim, declaring illegal the actions of a private bailiff of the executive district of Astana Z. The decision of the bailiff dated May 24, 2017 on determining the alimony arrears of A. was canceled on the following grounds.
Appealing against the actions of the bailiff
It follows from the case file that on January 27, 2012, the District court No. 2 of the Almaly district of Almaty issued a court order to recover from A. in favor of J. alimony for the maintenance of a minor child E., born on July 21, 2011, in the amount of one quarter of earnings and (or) other income per month, starting from January 25, 2012, until the child reaches the age of majority. On February 21, 2017, the private bailiff Z. (hereinafter referred to as the bailiff) enforcement proceedings have been initiated. In the course of the enforcement actions, it was established that the debtor A. Since February 22, 2016, he has been operating as an individual entrepreneur. According to the information of the RSU "Department of State Revenue of Astana city" (hereinafter referred to as the Tax Authority), A.'s income as an individual entrepreneur for the 2nd half of 2016 amounted to 2,159,000 tenge. On May 24, 2017, the bailiff issued a ruling, determining the alimony arrears of A. in favor of Zh., which as of January 1, 2017 amounted to 596,495 tenge. The applicant, disagreeing with the decision on the determination of alimony arrears, indicates that when determining the amount owed by the bailiff, the total income was taken as the basis, excluding expenses in the form of taxes and deductions paid. The local courts concluded that the bailiff's actions were lawful and did not contradict the requirements of the law, and the amount indicated by the applicant in the declaration was used as the basis for determining the debt. Meanwhile, the conclusions of the courts are not based on the factual circumstances of the case and contradict the norms of substantive law. In accordance with the requirements of Article 94 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs" (hereinafter referred to as the Law), the amount of deductions is calculated from the amount of the debtor's salary (income) due to him. According to the requirements of Article 428 of the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget" (hereinafter referred to as the Tax Code), small businesses have the right to independently choose only one of the following procedures for calculating and paying taxes, as well as submitting tax reports on them.: 1) the generally established procedure; 2) a special tax regime based on a patent; 3) a special tax regime based on a simplified declaration. In accordance with paragraph 3 of Article 427 of the old version of the Tax Code, the object of taxation for a taxpayer applying a special tax regime based on a patent or a simplified declaration is income for a tax period consisting of all types of income. According to the response of the Tax Authority regarding the individual entrepreneur A. A special tax regime was applied on the basis of a simplified declaration without accounting, therefore, the calculation of the amount of alimony on the income of individual entrepreneur A. had to be made from the income indicated in the declaration, minus expenses related to entrepreneurial activity and tax paid. In violation of the specified requirements of the law, the bailiff used the debtor's income as a basis for determining the debt, excluding expenses in the form of taxes and deductions paid. In addition, the appeals board in its decision referred to the Rules for the preparation of a simplified declaration for small businesses, approved by Order No. 468 of the Minister of Finance of the Republic of Kazakhstan dated December 19, 2007, which expired on December 25, 2008. Currently, the Rules for Tax Reporting (simplified declaration) for small businesses are in force, approved by the Order of the Ministry of Finance of the Republic of Kazakhstan dated December 25, 2014 No. 587 (hereinafter referred to as the Rules). According to subparagraph 1 of paragraph 8 of the Rules, line 910.000.001 indicates income determined in accordance with paragraph 3 of Article 427 of the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget" (Tax Code), taking into account adjustments made in accordance with paragraph 8. There are no words "actual income" in this paragraph.
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