Comment to Article 277. Evasion from payment of accrued (calculated) amounts of taxes and other mandatory payments to the budget  The Code of the Republic of Kazakhstan on Administrative Offences  

     Evasion from paying accrued (calculated) amounts of taxes and other mandatory payments to the budget, committed by the taxpayer through settlements with third parties in the presence of arrears during the period of validity of the order of the state revenue authority on the suspension of expenditure operations at the cash register, if this action does not contain signs of a criminal offense, -

     entails a fine for individuals in the amount of fifteen, for small businesses or non-profit organizations - in the amount of fifteen monthly calculation indices, for medium-sized businesses - in the amount of thirty, for large businesses - in the amount of fifty percent of the amount of calculations.

     The commented article establishes administrative liability for evading the payment of accrued (calculated) amounts of taxes and other mandatory payments to the budget. Although it would be more accurate to call the stipulated art . 277 of the Administrative Code is considered evasion from repayment of arrears, since, based on the objective side of this offense, it is assumed that the amount of taxes owed to the state has already been calculated by the taxpayer himself (or accrued to him by the state revenue authorities), is not disputed by him, is his actual debt to the state and is overdue in its payment (arrears).

     The generic object of an administrative offense provided for in Article 277 of the Administrative Code is the procedure for taxation and tax administration of tax relations established in the Tax Code of the Republic of Kazakhstan.

     The direct object of the administrative offense provided for in Article 277 of the Administrative Code is the right of the state to receive money from taxpayers in the form of accrued (calculated) and overdue taxes.

     The objective side of the administrative offense provided for in Article 277 of the Administrative Code is characterized by the commission by the taxpayer of culpable illegal actions aimed at evading payment of taxes accrued to him (calculated by him) and other mandatory payments to the budget.  

     The commented article immediately defines the method of committing this offense – by making settlements with third parties by the taxpayer. Settlements with third parties allow a taxpayer to direct money and property owed to him from his debtors immediately to fulfill his own obligations or to repay his own debts to his creditors at the discretion of the taxpayer himself, bypassing his checking account and cash desk and, consequently, bypassing their referral to priority and preferential repayment of tax debts. For these purposes, a taxpayer may use two- and multilateral civil law transactions of assignment of a claim and transfer of debt, as well as multilateral acts of offsetting and reconciliation of settlements with debtors and creditors of the taxpayer.  

     In such cases, no one questions the right of the state to receive taxes due from the taxpayer, but the exercise of this right, due to the lack of money in the taxpayer's current accounts and cash register, is postponed indefinitely and can be carried out after satisfying the claims of other creditors of the taxpayer, who by law do not have a pre-emptive right over the state to satisfy their claims in if the taxpayer has no or insufficient money in his current account and in the cash register.  

     If the claims of creditors who enjoy the pre-emptive right to satisfy their claims in the order of priority before the state and the priority provided for by the civil and banking legislation of the Republic of Kazakhstan are satisfied, then in this case there will be no corpus delicti under the commented article, since creditors of priority queues would in any case receive satisfaction of their claims in the order of priority before the state.

     At the same time, in order to recognize an act as an administrative offense, such settlements must be carried out when the taxpayer has arrears in taxes and other mandatory payments to the budget and at the same time there is an order from the state revenue authority to suspend spending operations on the cash register. Accordingly, a taxpayer's settlements with third parties will not be recognized as tax evasion and other mandatory payments to the budget if he has no arrears in taxes and other mandatory payments to the budget, is in arrears only in penalties or fines, and (or) does not have a valid order from the state revenue authority to suspend spending operations on the ticket office.  

     In addition, in order to be recognized as an administrative offense under Article 277 of the Administrative Code, an act must not contain signs of a criminally punishable act, prosecuted and punishable in accordance with the Criminal Code of the Republic of Kazakhstan as for tax evasion of individuals and organizations.

     The subjective side of an administrative offense under Article 277 of the Administrative Code is characterized by guilt in the form of intent. The taxpayer is aware of the unlawful nature of his act, anticipates the onset of socially dangerous consequences, desires their occurrence, or consciously allows them, but treats them indifferently. In this case, the purpose and motives of the offense are essential for establishing the form of guilt. – the taxpayer is aware of his arrears (calculated by him independently on the basis of a declaration or calculation, or accrued to him by the state revenue authorities upon notification of taxes and other mandatory payments to the budget, the payment of which is overdue), is aware of the effect of the order of the state revenue authority to suspend spending operations on the cash register and, nevertheless, deliberately evades repayment of arrears by making settlements with third parties, bypassing your own checking account and cashier. At the same time, the taxpayer is guided by selfish motives.  

     The subjects of the administrative offense provided for in Article 277 of the Administrative Code are the categories of taxpayers directly indicated in the sanction of Article 277 of the Administrative Code: individuals, non-profit organizations and business entities (individual entrepreneurs and commercial organizations). Other categories of taxpayers, as well as other participants in tax legal relations (tax agents, payment operators, tax collectors and tax representatives) are not the subjects of an offense under Article 277 of the Administrative Code.

     The composition of the administrative offense provided for in Article 277 of the Administrative Code is material. In order to bring a taxpayer to administrative responsibility for committing an administrative offense under Article 277 of the Administrative Code, it is necessary to establish the fact of causing material damage to the state in the form of unpaid taxes as a result of tax evasion.  

     Committing an administrative offense under Article 277 of the Administrative Code entails a fixed fine for individuals and small businesses or non–profit organizations – 15 MCI, as well as a percentage fine for medium–sized businesses - 30%, and for large businesses – 50% of the amount of settlements. The penalty is imposed by the state revenue authorities or the court, in the case of an administrative offense case in court.  

     The imposition of a fine for a committed offense does not exempt a taxpayer, in accordance with Part 5 of Article 55 of the Administrative Code, from fulfilling his duties, eliminating violations and paying off his arrears.  

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.);  

     Alexander Vladimirovich Karpekin, Candidate of Law, Associate Professor – chapter 13 (in collaboration with A.M. Zhusipbekova);

     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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