Cancellation of the resolution on foreclosure on immovable property

 

No. 6001-22-00-6ap/1669 dated 05/04/2023

Plaintiff: LLP "A"

Defendants: Russian State Institution "State Revenue Department of the State Revenue Department" (hereinafter referred to as the Department),

JSC "Fund" (hereinafter referred to as the Fund)

The subject of the dispute: on the cancellation of the decree of October 21, 2021 on foreclosure on immovable property, imposing the obligation on the Fund to return the decree without execution

Review of the plaintiff's cassation appeal.

PLOT:

The partnership has arrears on taxes and social payments in the amount of 22,454,011 tenge, formed in 2020.

On 04/15/2021, the Management made a decision to restrict the disposal of the Partnership's property and drew up an inventory of the property dated 08/9/2021.

On 10/21/2021, the Office issued a resolution on foreclosure on the taxpayer's limited property No. 25000000037 in the form of two apartments.

On 12/21/2021, an auction was held for the sale of the above-mentioned property.

Based on the protocols on the results of the auction No. 229206 and No. 229207, B.R. was recognized as the winner of the auction.

Disagreeing with the foreclosure on real estate, the Partnership challenged the resolution of 10/21/2021.

Judicial acts:

1st instance: the claim was denied.

Appeal: the decision remains unchanged.

Cassation: the decision was overturned, the case was sent for a new hearing to the court of appeal in a different composition.

Conclusions:

According to paragraphs 1, 3 of Article 121 of the Tax Code, the tax authorities apply measures to enforce the collection of tax debts of a taxpayer who is a legal entity, except in cases of appeal against notification of the results of an audit or notification of the results of horizontal monitoring.

Compulsory collection of tax arrears is carried out in the following order:

at the expense of money held in bank accounts;

from debtors' accounts;

through the sale of limited available property;

in the form of a compulsory issue of declared shares.

In accordance with Article 124 of the Tax Code, a tax authority in cases of absence or insufficiency of a taxpayer (tax agent), a legal entity classified as high or medium risk in accordance with the risk management system, has money in bank accounts and in the bank accounts of its debtors, or does not have it and (or) its debtors. bank accounts, without his consent, issues a resolution on foreclosing on the taxpayer's (tax agent's) limited property.

A resolution on foreclosure on the restricted property of a taxpayer (tax agent) is drawn up in two copies in a form approved by the authorized body, one of which is sent to the authorized legal entity with a copy of the decision on the restriction on the disposal of property and the property inventory act.

In accordance with paragraph 3 of Article 123 of the Tax Code, on the basis of a list of debtors submitted by a taxpayer (tax agent) and (or) information about debtors obtained from the information systems of tax authorities, and (or) an audit report of the taxpayer (tax agent) confirming the amount of accounts receivable, the tax authority sends notices to debtors about foreclosure on The money from their bank accounts is used to pay off the tax arrears of the taxpayer (tax agent) within the limits of the amounts receivable.

According to paragraph 22 of the NPVS dated 06/29/2017 No. 4 "On Judicial practice of applying tax Legislation" (in force at the time of foreclosure on property), each subsequent measure is applied if, as a result of the application of the previous measure, the tax debt has not been repaid. In this regard, the state revenue authority has the right to proceed to the sale of the taxpayer's limited property only after taking appropriate measures to collect tax arrears at the expense of money.

It was established that on 07/12/2021, the tax authority drew up a documentary tax audit act No. 63 due to the availability of information about the debtors of the Partnership in the information tax system. Accounts receivable from the Partnership amount to KZT 24,582,520, which covers the amount of tax arrears. The procedure for compulsory collection of tax arrears determines that before the sale of the debtor's property, the debt can be repaid by collecting from debtors' accounts.

However, the local courts have not clarified what measures have been taken by the tax authority to collect accounts receivable, including by notifying the taxpayer's debtors of the foreclosure of funds from their bank accounts. There is no such information in the case file.

The Management's arguments about the absence of funds in the accounts of the plaintiff's debtors to foreclose on them and issue a collection order are also not supported by the presentation of relevant evidence.

In this regard, the judicial board recognized the conclusions of the appellate instance that the tax authority had complied with the procedure for collecting tax debts established by paragraph 3 of Article 121 of the Tax Code as premature.

 

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