As part of the pre-trial investigation of tax cases, a notification is issued after the completion of the criminal case.
Compliance with the procedure for appointing, conducting and completing tax audits is a guarantee of the legality of the actions of the tax authorities, failure to comply with which serves as an unconditional basis for canceling the notification of the results of the tax audit.
AdiNur NS LLP conducted a thematic tax audit for the period from January 1, 2014 to December 31, 2018.
According to the results of the tax audit, the following tax amounts were accrued: CPN - 352,812,666 tenge and penalty 109,213,589 tenge; VAT - 194,940,278 tenge and penalty 21,415,792 tenge.
The inspection was carried out in accordance with subparagraph 3) of paragraph 3 of Article 145 of the Tax Code on the basis of decisions of the criminal prosecution authorities.
According to paragraph 4 of Article 159 of the Tax Code, in the case of a tax audit conducted as part of a pre-trial investigation, notification of the results of the audit of the taxpayer against whom the pre-trial investigation is being conducted is issued after the completion of the criminal case.
According to the Financial Monitoring Committee of the Ministry of Finance of the Republic of Kazakhstan and the National Security Committee of the Republic of Kazakhstan, there was no final decision on the pre-trial investigations in which the disputed tax audit was conducted during the dispute.
In these circumstances, the court of first instance, with reference to paragraph 4 of Article 159 of the Tax Code, reasonably canceled the disputed notification of the results of the tax audit conducted as part of the pre-trial investigation, since it is issued only after the completion of criminal proceedings, and in this case there is no final verdict or decision to terminate criminal proceedings. the case.
Regulatory and legal framework
In accordance with Article 2 of the Code of the Republic of Kazakhstan dated December 25, 2017 "On Taxes and other mandatory payments to the Budget (Tax Code)", the tax legislation of the Republic of Kazakhstan is based on the Constitution of the Republic of Kazakhstan, consists of this Code, as well as regulatory legal acts, the adoption of which is provided for by this Code.
If an international treaty ratified by the Republic of Kazakhstan establishes rules other than those contained in the Tax Code, the rules of the said treaty shall apply.
The main regulatory legal acts that courts should follow when considering cases related to the application of tax legislation are:
1. The Constitution of the Republic of Kazakhstan dated August 30, 1995;
2. The Code of the Republic of Kazakhstan "On Taxes and other Mandatory Payments to the Budget (Tax Code)" (hereinafter – NC);
3. The Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code) (General Part) dated December 27, 1994, (Special Part) dated July 1, 1999;
4. The Civil Procedure Code of the Republic of Kazakhstan (hereinafter – CPC) dated October 31, 2015;
5. The Business Code of the Republic of Kazakhstan (hereinafter referred to as the Business Code) dated October 29, 2015;
6. The Law of the Republic of Kazakhstan "On Permits and Notifications" dated May 16, 2014;
7. The Law of the Republic of Kazakhstan "On Accounting and Financial Reporting" dated February 28, 2007;
8. The Law of the Republic of Kazakhstan "On State Registration of Legal Entities and Registration of branches and representative Offices" dated April 17, 1995;
9. Regulatory rulings of the Supreme Court of the Republic of Kazakhstan (hereinafter – NP):
- "On judicial practice of tax legislation application" dated June 29, 2017 No. 4;
- "On the application by courts of certain norms of civil procedure legislation" dated March 20, 2003 No. 2;
- "On some issues of the invalidity of transactions and the application by courts of the consequences of their invalidity" dated July 7, 2016 No. 6;
- "On some issues of application by courts of the norms of Chapter 29 of the CPC" dated December 24, 2010 No. 20;
Resolutions of the Government of the Republic of Kazakhstan, regulatory legal orders of the authorized body in the system of state revenue bodies.
Summary from the Supreme Court of the Republic of Kazakhstan on the judicial practice of applying tax legislation for 2020 and 3 months of 2021 dated July 9, 2021
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