Comment to Article 238. Violation of the legislation of the Republic of Kazakhstan on accounting and financial reporting by individuals and officials The Code of the Republic of Kazakhstan on Administrative Offences
1. Non-fulfillment and (or) improper fulfillment by individuals and officials of duties stipulated by the legislation of the Republic of Kazakhstan on accounting and financial reporting, committed in the form of:
1) evasion from accounting, if this action does not contain signs of a criminally punishable act;
2) preparation of distorted financial statements, concealment of data to be reflected in accounting, as well as destruction of accounting documents, if these actions do not contain signs of a criminal offense;
3) appointment of a person who does not have a professional accountant's certificate to the position of chief accountant of a public organization, -
they entail a fine in the amount of fifty monthly calculation indices.
2. The acts provided for in the first part of this Article, committed repeatedly within a year after the imposition of an administrative penalty, -
they entail a fine in the amount of two hundred monthly calculation indices.
Notes.
1. An official shall not be subject to administrative responsibility provided for in this article in the event of independent elimination of violations identified by the results of desk control, within ten working days from the day following the day of delivery to the person being checked of the notification of elimination of violations identified by the results of desk control.
2. For the purposes of this article, a misstatement of more than twenty monthly calculation indices is recognized as a misstatement of financial statements.
The commented article establishes administrative liability for violations of the legislation of the Republic of Kazakhstan on accounting and financial reporting by individuals and officials.
The generic object of offenses provided for in Article 238 of the Administrative Code is the procedure established in the legislation of the Republic of Kazakhstan and protected by the state for carrying out activities in the field of finance and accounting.
The direct object of administrative offenses provided for in the commented article is the procedure for accounting and financial reporting by individuals and officials.
The subjects of offenses provided for in Article 238 of the Administrative Code, by virtue of a direct indication of this in the disposition of the commented article, are individuals and officials.
The subjective side of the acts provided for in Article 238 of the Administrative Code, for individuals and officials who have committed offenses, is characterized by guilt in the form of intent or negligence. The guilt of a person is revealed by his mental attitude towards the illegal acts committed by him.
The offences provided for in the commented article are formal. In order to calculate and impose a fine on an offender under the commented article, it is not necessary to establish the fact and amount of damage caused to third parties by non-fulfillment and (or) improper fulfillment of duties provided for by the legislation of the Republic of Kazakhstan on accounting and financial reporting.
Part 1 of the commented article establishes administrative liability for non-fulfillment and (or) improper fulfillment by individuals and officials of duties stipulated by the legislation of the Republic of Kazakhstan on accounting and financial reporting.
The objective side of the offense provided for in Part 1 of Article 238 of the Administrative Code is the commission by individuals or officials of the perpetrators of illegal actions (inaction) in the form of non-fulfillment and (or) improper fulfillment of duties provided for by the legislation of the Republic of Kazakhstan on accounting and financial reporting, by:
1) evasion from accounting, if this action does not contain signs of a criminally punishable act;
2) preparation of distorted financial statements, concealment of data to be reflected in accounting, as well as destruction of accounting documents, if these actions do not contain signs of a criminal offense.;
3) appointment of a person who does not have a professional accountant's certificate to the position of chief accountant of a public organization.
According to paragraph 1 of Article 3 of the Law of the Republic of Kazakhstan dated February 28, 2007 No. 234-III "On Accounting and Financial Reporting", the legislation of the Republic of Kazakhstan on accounting and financial reporting is based on the Constitution of the Republic of Kazakhstan and consists of this Law and other regulatory legal acts of the Republic of Kazakhstan.
Accounting is an orderly system for collecting, registering and summarizing information about transactions and events of individual entrepreneurs and organizations, regulated by the legislation of the Republic of Kazakhstan on accounting and financial reporting, as well as accounting policy.
The accounting procedure is approved by the authorized body.
Financial statements are information about the financial position, performance results, and changes in the financial position of an individual entrepreneur or organization. Financial statements, with the exception of those of government agencies, include: 1) the balance sheet; 2) income statement; 3) cash flow statement; 4) statement of changes in equity; 5) an explanatory note.
The procedure for preparing financial statements and additional requirements to them are established in accordance with international standards, the international standard for small and medium-sized businesses and the requirements of the legislation of the Republic of Kazakhstan on accounting and financial reporting.
As required by paragraph 1 of Article 2 of the Law of the Republic of Kazakhstan "On Accounting and Financial Reporting", legal entities, branches, representative offices, permanent institutions of foreign legal entities registered in the territory of the Republic of Kazakhstan in accordance with the legislation of the Republic of Kazakhstan (hereinafter referred to as organizations) and individual entrepreneurs are required to maintain accounting records and prepare financial statements when carrying out their activities..
According to the legislative exception provided by the norm of paragraph 2 of Article 2 of the said Law for individual entrepreneurs, they have the right not to carry out accounting (except for the preparation and storage of primary documents) and the preparation of financial statements if they simultaneously comply with the following legislative conditions: 1) apply special tax regimes based on a patent and a simplified declaration in accordance with the tax legislation of the Republic of Kazakhstan; 2) they are not registered for VAT; 3) they are not subjects of natural monopolies.
The evasion of organizations and individual entrepreneurs from accounting forms the final composition of the offense provided for in Part 1 of the commented article.
The offender is brought to administrative responsibility under Part 1 of the commented article for evading accounting records only if there are no signs of a criminal offense in the offender's actions. Otherwise, the offenders – individual entrepreneurs and guilty officials of a legal entity - are subject to criminal liability for violating the legislation on accounting and financial reporting in accordance with the norms of the Criminal Code. In this regard, an initially unlawful act of a person to evade accounting should be checked by law enforcement agencies for the presence or absence of signs of a criminal offense and grounds for bringing the perpetrator to criminal responsibility.
The purpose of accounting and financial reporting, according to art. 4 of the above-mentioned Law, is to provide interested parties with complete and reliable information about the financial situation, performance results and changes in the financial situation of individual entrepreneurs and organizations.
In this regard, as required by paragraph 3 of Article 6 of the Law of the Republic of Kazakhstan "On Accounting and Financial Reporting", transactions and events are reflected in the accounting system, while ensuring: 1) adequate backup of accounting records with originals of primary documents and reflection in accounting records of all transactions and events; 2) chronological and timely registration of transactions and events; 3) bringing synthetic (final) accounting into line with analytical (detailed) accounting.
Violation by obligated persons of the legal requirements imposed on them for the complete, timely and reliable reflection in accounting and financial statements of information about the operations and events of an individual entrepreneur and an organization, committed in the form of preparation of distorted financial statements and (or) concealment of data to be reflected in accounting, forms the final composition of the offense provided for in Part 1 of the commented articles.
At the same time, according to note 2 to the commented article, a misstatement of more than 20 MCI is recognized as a misstatement of the financial statements for the purposes of the commented article.
11 of the Law of the Republic of Kazakhstan "On Accounting and Financial Reporting", individual entrepreneurs and organizations are required to keep primary documents, accounting registers on paper and (or) electronic media, financial statements, accounting policies, programs for electronic processing of accounting data during the period established by the legislation of the Republic of Kazakhstan.
Primary accounting documents are documentary evidence, both on paper and on electronic media, of the fact of an operation or event and the right to commit it, on the basis of which accounting is conducted.
Accounting registers are forms for summarizing, systematizing and accumulating information contained in primary documents accepted for accounting, for its reflection in the accounting and financial reporting system.
The accounting policy represents the specific principles, bases, regulations, rules and practices adopted for application by an individual entrepreneur or an organization for accounting and financial reporting in accordance with the requirements of the legislation of the Republic of Kazakhstan on accounting and financial reporting, international or national standards, the international standard for small and medium-sized businesses and the standard chart of accounts of accounting accounting, based on their needs and the specifics of their activities.
As required by clause 3 of Article 193 of the Tax Code of the Republic of Kazakhstan, accounting documents related to taxable objects or objects related to taxation are kept by the taxpayer (tax agent) until the expiration of the limitation period established in the Tax Code of the Republic of Kazakhstan for each type of tax or payment to the budget, but not less than five years. In other cases, the retention period for accounting and financial documentation is established by a regulatory legal act of the authorized body.
Proper storage of accounting and financial reporting documents should ensure their protection from loss and/or destruction.
Failure by obligated persons to comply with the above-mentioned legislative requirement to ensure the safety of accounting documents and their destruction constitutes the final composition of an administrative offense provided for in Part 1 of the commented article.
Bringing a person to administrative responsibility under Part 1 of the commented article for entering deliberately false information about the economic and financial activities of an organization into accounting documentation by this person, as well as destroying accounting documentation before the expiration of its retention period, is carried out only if there are no signs of a criminal offense in the actions of the offender. Otherwise, the offenders – individual entrepreneurs and guilty officials of a legal entity - are subject to criminal liability for violating the legislation on accounting and financial reporting in accordance with the norms of the Criminal Code. In this regard, the initially illegal act of a person to include deliberately false information about economic and financial activities in accounting documentation by this person, as well as to destroy accounting documentation before the expiration of its retention period, should be checked by law enforcement agencies for the presence or absence of signs of a criminal offense and grounds for bringing the perpetrator to criminal responsibility.
9 of the Law of the Republic of Kazakhstan "On Accounting and Financial Reporting", a professional accountant is appointed to the position of chief accountant of a public interest organization.
Public interest organizations are financial organizations (with the exception of legal entities whose exclusive activity is the organization of exchange operations with foreign currency), joint–stock companies (with the exception of non-profit ones), subsurface user organizations (with the exception of organizations extracting common minerals), grain receiving enterprises and organizations in whose authorized capitals there is a government share, as well as state-owned enterprises based on the right of economic management. The concepts of financial organizations, joint-stock companies, and subsurface user organizations are defined in the relevant branches of the legislation of the Republic of Kazakhstan.
A professional accountant is an individual who holds a professional accountant's certificate and is a member of a professional organization.
A professional accountant's certificate is a document issued by a certification organization certifying the professional qualifications of an accountant.
Violation by obligated persons - organizations of the above-mentioned legislative requirement to appoint only a professional accountant as the chief accountant of a public organization (organization of public interest) forms the final composition of the administrative offense provided for in Part 1 of the commented article.
According to note 1 to the commented article, an official is not subject to administrative liability provided for in the commented article in the case of self-elimination of violations identified by the results of desk control, within ten working days from the day following the day of delivery to the person being checked of the notification of elimination of violations identified by the results of desk control.
This rule applies to all avoidable cases of violations of the accounting legislation of the Republic of Kazakhstan provided for in the commented article.
For committing an offense provided for in Part 1 of the commented article, individuals and officials are subject to punishment in the form of a fine.
The amount of the fine for committing an offense under Part 1 of Article 238 of the Administrative Code is 50 MCI, is fixed and is not subject to change by the body imposing it.
This penalty is imposed on offenders by the authorities of the Ministry of Finance of the Republic of Kazakhstan or by the court, if the case is considered in court.
Part 2 of the commented article establishes a more severe penalty for repeated commission of any of the actions (inaction) provided for in Part 1 of the commented article within a year after the imposition of an administrative penalty.
At the same time, the object, the subjective side and the subjects of the offense provided for in Part 2 of the commented article coincide in their characteristics with the object, the subjective side and the subjects of the offense provided for in Part 1 of Article 238 of the Administrative Code.
In the description of the objective side of the offense provided for in Part 2 of Article 238 of the Administrative Code, a sign of repetition is added to the actions (inaction) provided for in Part 1 of the commented article.
An offense is considered to have been committed repeatedly if a person has previously committed any of the actions (omissions) provided for in Part 1 of Article 238 of the Administrative Code, has been subjected to administrative punishment for it, and the one-year period during which the person is considered to have been subjected to administrative punishment has not expired yet.
The repetition of an offense is an independent qualifying feature, entailing the qualification of an unlawful act as an independent element of an offense under Part 2 of Article 238 of the Administrative Code.
Repetition as a qualifying feature is established not only in fact by identifying the number and nature of illegal acts committed by the violator during the year, but also legally by establishing the fact of bringing this person to administrative responsibility for committing actions provided for in Part 1 of Article 238 of the Administrative Code, the existence of an effective resolution of the Ministry of Finance of the Republic of Kazakhstan or the court on the imposition of administrative penalties under Part 1 of art. 238 of the Administrative Code, the fact of its announcement, delivery or referral to the subject of the offense and the expiration of a one-year period from the date of imposition of the penalty.
For repeated commission of the act provided for in Part 1 of Article 238 of the Administrative Code within a year after the imposition of the penalty, the offender is punished with a fine.
The amount of the fine for committing an offense under Part 2 of Article 238 of the Administrative Code is 200 MCI, is fixed and is not subject to change by the body imposing it.
This penalty is imposed on offenders by the authorities of the Ministry of Finance or by the court, if the case is considered in court.
Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:
Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);
Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;
Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);
Karpekin Alexander Vladimirovich, Candidate of Law, Associate Professor – chapter 13 (in collaboration with Zhusipbekova A.M.);
Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;
Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;
Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;
Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);
Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);
Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;
Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;
Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);
Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;
Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;
Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);
Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;
Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.
Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).
Date of amendment of the act: 01.01.2020 Date of adoption of the act: 01.01.2020 Place of acceptance: 100050000000 Authority that adopted the act: 103001000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 5 Status of the act: new Sphere of legal relations: 029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act: COMM / CODE Legal force: 1900 Language of the Act: rus
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