Appealing against the actions of the tax authority

In accordance with part 1 of Article 127 of the CPC of the Republic of Kazakhstan, a verdict that has entered into legal force, as well as another court decision in a criminal case that resolves it on its merits, are mandatory for all state bodies, individuals and legal entities in relation to both the established circumstances and their legal assessment in relation to the person against whom they were issued. entrepreneur M. (hereinafter referred to as M.) appealed to the court with a statement to the RSU "Department of State Revenue for the Auezovsky district of the Department of State Revenue for the city of Almaty of the State Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan" (hereinafter referred to as the Department, the tax authority) to declare illegal the claim for payment of accrued taxes and penalties according to the act of documentary tax audit dated July 17 2003 No. 493, on the cancellation of the notification on the elimination of violations of tax legislation dated March 14, 2018 No. 09000794855. The decision of the specialized interdistrict Economic Court of Almaty dated July 10, 2018, left unchanged by the decision of the judicial Board for Civil Cases of the Almaty City Court dated October 10, 2018, denied the application. The Judicial Board for Civil Cases of the Supreme Court overturned the judicial acts of local courts and issued a new decision to satisfy the application of individual entrepreneur M. declaring illegal the claim for payment of accrued taxes and penalties in accordance with tax audit act No. 493 of July 17, 2003. The notification on the elimination of violations of tax legislation dated March 14, 2018 No. 09000794855 was canceled on the following grounds.

 

It follows from the case file that on March 14, 2018, the Department issued M. a notification on the elimination of violations of the tax legislation of the Republic of Kazakhstan No. 09000794855 (hereinafter referred to as the Notification), which indicated the existence of arrears in taxes and other mandatory payments to the budget and the need to repay it. It was established that the Department issued this Notification because M.'s notification dated July 18, 2003 No. 493 on the amount of taxes and other mandatory payments to the budget, penalties and fines was not executed. In rejecting M.'s application, the courts of first and appellate instances concluded that the act of documentary tax audit dated July 17, 2003 No. 493 and the notice dated July 18, 2003 No. 493 had not been appealed by M. in court in a timely manner, therefore, the actions of the tax authority to issue a Notice of Debt Repayment comply with the requirements of tax legislation. These conclusions of the courts of first instance and appeal are unfounded, they are based on the incorrect application of substantive and procedural law. According to the results of a tax audit conducted in 2003, the Department for Combating Economic and Corruption Crimes in the city of Almaty initiated a criminal case against M. under part 1 of Article 221 of the Criminal Code of the Republic of Kazakhstan on suspicion of tax evasion in the budget. By the verdict of the Almaly District Court of Almaty dated February 1, 2005, which was upheld by the decision of the Board of Criminal Cases of the Almaty City Court dated March 15, 2005, M. was found innocent and acquitted due to the absence of corpus delicti in his actions. It follows from the contents of the above judicial acts that the tax audit Act No. 493 of July 17, 2003 and the notification No. 493 of July 18, 2003 were investigated for the legality of tax assessment. The court concluded that the additional charges were made in the absence of the necessary information and accounting documents. In accordance with part 1 of Article 127 of the Criminal Procedure Code of the Republic of Kazakhstan, a sentence that has entered into legal force, as well as another court decision in a criminal case that resolves it on its merits, are mandatory for all government agencies, individuals and legal entities in relation to both the established circumstances and their legal assessment in relation to the person They're out. Thus, the judicial acts that have taken place in the criminal case have a prejudicial significance for the present civil case.

In this regard, the factual circumstances of the case are not subject to re-proof, since the court's legal assessment was given to the tax audit act as a document establishing M.'s tax obligations. Challenging the Notification is to verify the legality of the tax authority's accrual of taxes and other mandatory payments to the budget. This is stipulated in the regulatory resolution of the Supreme Court of the Republic of Kazakhstan "On judicial practice of tax legislation application" dated June 29, 2017 No. 4. Meanwhile, as part of the consideration of the criminal case, the legality of the accrued tax amounts has already been verified in court and the tax audit act of July 17, 2003 No. 493 and notification of July 18, 2003 No. 493 were given a legal assessment. Also noteworthy are the arguments of M.'s petition that the tax authority's demand for repayment of additional taxes, expressed in the contested Notification, is illegal, since notification No. 493 dated July 18, 2003 was not delivered to him in a timely manner. In court, the tax authority did not prove the opposite, that is, evidence of the delivery of this notice to M. They were not provided to the court. In this regard, the court's conclusions that the act of documentary tax audit dated July 17, 2003 No. 493 and the notification dated July 18, 2003 No. 493 were not appealed in a timely manner by M. are unfounded. 

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