Comment to article 280-1. Violation of the procedure for issuing invoices, as well as violation of the accounting system for the movement of goods included in the list The Code of the Republic of Kazakhstan on Administrative Offences
1. Taxpayer's failure to issue an invoice in electronic form -
entails a warning.
2. The action provided for in the first part of this article, committed repeatedly within a year after the imposition of an administrative penalty, -
entails a fine for small businesses in the amount of forty, for medium-sized businesses in the amount of one hundred, for large businesses in the amount of one hundred and fifty monthly calculation indices.
3. Taxpayer's statement of an invoice in electronic form in violation of the deadline -
entails a warning.
4. The action provided for in the third part of this article, committed repeatedly within a year after the imposition of an administrative penalty, -
entails a fine for small businesses in the amount of twenty, for medium-sized businesses in the amount of fifty, for large businesses in the amount of one hundred monthly calculation indices.
5. Absence of shipping documents certified by the seal of the state revenue authorities, the registration of which is provided for when exporting goods included in the list outside the territory of the Republic of Kazakhstan in violation of the accounting system for the movement of goods, -
entails a fine in the amount of fifty monthly calculation indices.
6. The action provided for in part five of this article, committed repeatedly within a year after the imposition of an administrative penalty, -
entails a fine in the amount of one hundred monthly calculation indices.
Note. The goods included in the list should be understood as goods, the code of the unified Commodity nomenclature of foreign economic activity of the Eurasian Economic Union and the name of which are included in the list of goods in accordance with the protocol on certain issues of import and circulation of goods in the customs territory of the Eurasian Economic Union, ratified by the Law of the Republic of Kazakhstan dated December 9, 2015.
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The commented article establishes the composition of administrative offenses that infringe on the procedure established in the Republic of Kazakhstan for taxpayers to issue invoices, as well as on the accounting system for the movement of goods included in the list of goods in accordance with the protocol on certain issues of import and circulation of goods in the customs territory of the Eurasian Economic Union, ratified by the Law of the Republic of Kazakhstan dated December 9, 2015.
Part 1 of the commented article establishes the administrative responsibility of a taxpayer for non-issuance of an electronic invoice in cases when, at the request of the Tax Code of the Republic of Kazakhstan, a taxpayer is required to issue an electronic invoice for goods (works, services) sold by him to his counterparty.
The generic object of offenses provided for in Articles 280-1 of the Administrative Code is the procedure for taxation and tax administration of tax relations established in the legislative acts of the Republic of Kazakhstan and protected by the state.
The direct object of administrative offenses provided for in Parts 1, 2, 3 and 4 of the commented article is the procedure and deadlines for taxpayers to issue electronic invoices established by the Tax Code of the Republic of Kazakhstan and protected by the state.
The objective side of the offenses provided for in Parts 1 and 2 of Articles 280-1 of the Administrative Code is characterized by the commission by taxpayers as obligated persons of unlawful culpable inaction in the form of non-issuance of an electronic invoice within the time limits established by the Tax Code of the Republic of Kazakhstan, when the issuance of such an invoice is mandatory for the taxpayer at the request of the Tax Code of the Republic of Kazakhstan. At the same time, in order to hold a taxpayer accountable according to the commented norm, the deadlines established in the Tax Code of the Republic of Kazakhstan for the taxpayer to issue an electronic invoice must be expired and not recoverable, and the invoices must not be written at the time the taxpayer is held accountable. If a taxpayer issues an electronic invoice in violation of the deadline for their issuance (delay in issuing an electronic invoice), the taxpayer should not be involved in accordance with Parts 1 and 2 of Articles 280-1 of the Administrative Code, but should be involved in accordance with Part 3 of Articles 280-1 of the Administrative Code.
In order to bring to administrative responsibility a taxpayer who is obliged to issue electronic invoices and has not issued them, it is sufficient to identify a single case of non-issuance of an electronic invoice committed by him once.
However, if the state revenue authority identifies cases of repeated (two or more times) non-issuance of electronic invoices by the taxpayer, when such an extract is mandatory for the taxpayer, such cases should also be qualified by the state revenue authority as an administrative offense provided for in Part 1 of the commented article, unless the taxpayer was previously held administratively liable during the year. according to part 1 of art. 280-1 of the Administrative Code.
The legal obligation to issue electronic invoices in cases directly provided for by the Tax Code of the Republic of Kazakhstan is a subjective obligation of taxpayers specified in the Tax Code. This obligation arises for taxpayers within the framework of organizational (procedural) tax relations with the state in cases explicitly specified in the Tax Code of the Republic of Kazakhstan.
The commented norm does not apply to cases of violation of the procedure for issuing invoices, when a taxpayer under the Tax Code of the Republic of Kazakhstan is not required to issue an electronic invoice and/or has the right to issue invoices on paper.
An electronic invoice must be issued only if there are sufficient legal grounds for this, provided for as such in the Tax Code of the Republic of Kazakhstan. As a rule, the legal basis for issuing an electronic invoice is the shipment of goods by a taxpayer, the provision of services or the performance of work, transactions recorded by him together with his counterparties in relevant civil law documents (contracts executed at the very time of their execution, invoices for the release of inventories to the party, invoices, acts of acceptance and transfer of property, services rendered, work performed, etc.).
The deadlines for issuing electronic invoices are established in the Tax Code of the Republic of Kazakhstan and are measured by the time period from the moment of a specific action, which is the basis for issuing an electronic invoice.
The subjects of the offense provided for in Parts 1, 2, 3 and 4 of Articles 280-1 of the Administrative Code are business entities that, at the request of the Tax Code of the Republic of Kazakhstan, are required to issue electronic invoices. Accordingly, the provisions of Parts 1, 2, 3 and 4 of the commented article do not apply to taxpayers who do not have a legal obligation to issue electronic invoices, as well as to other participants in tax legal relations who are not taxpayers.
The subjective side of the acts provided for in Articles 280-1 of the Administrative Code for individual entrepreneurs who are required to issue electronic invoices is characterized by guilt in the form of intent or negligence. The guilt of a person is revealed by the mental attitude of an individual to the illegal acts committed by them.
For committing an offense under Part 1 of Article 280-1 of the Administrative Code, an administrative penalty is imposed in the form of a warning.
This penalty is imposed on offenders by the state revenue authorities by specifying it in the resolution on the imposition of an administrative penalty and declaring it to the offender, as well as mandatory delivery or sending him a copy of the resolution. In this case, in order to qualify further actions of the offender when committing similar offenses in the future, the person is considered to have been subjected to administrative punishment from the moment of delivery (referral) He likes it.
Part 2 of the commented article establishes a more severe punishment for repeated commission of an act provided for in Part 1 of Article 280-1 of the Administrative Code within a year after the imposition of an administrative penalty.
In this case, the repetition of the offense is no longer an aggravating circumstance in its characterization, but a mandatory qualifying feature of the independent composition of the offense in order to attract the offender already under Part 2 of art. 280-1 of the Administrative Code.
The repetition of the offense provided for in Part 1 of Article 280-1 of the Administrative Code entails the qualification of the unlawful act of not issuing an electronic invoice as an independent offense under Part 2 of Article 280-1 of the Administrative Code. Repetition as a qualifying feature is established not only in fact by identifying the number and nature of the unlawful acts committed by the violator during the year, but also legally by establishing the fact of bringing this person to administrative responsibility for the offense under Part 1 of art. 280-1 of the Administrative Code, the existence of an effective and unturned resolution on the imposition of an administrative penalty under Part 1 of Article 280-1 of the Administrative Code and the non-expiration of a one-year period from the date of imposition of the penalty.
If a taxpayer has committed an illegal act repeatedly or continues to commit it until it is revealed, but until that moment the taxpayer has not been brought to administrative responsibility under Part 1 of Article 280-1 of the Administrative Code earlier in the year, then bringing him to responsibility under Part 2 of Article 280-1 of the Administrative Code is impossible, since there is no qualifying sign of repetition. In this case, the taxpayer must be held accountable and punished under Part 1 of art. 280-1 of the Administrative Code, even if there are signs of repeated violations during the year and the uniformity of violations committed.
Failure by the offender to fulfill his obligation to issue a specific invoice in electronic form after imposing an administrative penalty on him for this (continuation of illegal behavior) does not constitute a repeat commission of a homogeneous offense. Ultimately, after the detection of an offense, the taxpayer must be forced to fulfill his legal obligations. Therefore, in order to be held accountable under Part 2 of art. 280-1 of the Administrative Code for repeated non-issuance of an electronic invoice, it is necessary for the violator to commit a new homogeneous offense as an independent episode in the time period after the imposition of a penalty on him under the previous resolution. Failure by a taxpayer to issue a new electronic invoice on newly arisen grounds in a new time period will be recognized as a uniform offense.
The administrative offences provided for in Parts 1 and 2 of Articles 280-1 of the Administrative Code are formal. To bring them to administrative responsibility, it is not necessary to establish that the offender has caused material harm to the state in the form of unpaid taxes. The harm to the state from committing offenses provided for in Parts 1 and 2 of Article 280-1 of the Administrative Code consists in a violation by a person of the procedure established by law for issuing electronic invoices, accounting for the sale of goods (works, services) and possible future losses of state revenues. Accordingly, the penalty for these types of administrative offenses cannot be made dependent on the amount of an unfulfilled tax obligation (material damage caused to the state in the form of unpaid taxes).
If a taxpayer, in his actions (inaction) on non-issuance of electronic invoices, is guided by the motives of concealing taxable objects in his possession or taxable activities carried out by him and, as a result, causes material harm to the state in the form of unpaid taxes, then in this case, when the state revenue authorities reveal the facts of hidden taxable objects and specific results of taxable activities, the taxpayer must be exposed punishment under the relevant articles of the Administrative Code for concealing taxable objects. In such cases, the non-issuance of electronic invoices should be qualified, along with and in combination with other signs of violation, as a method of committing another administrative offense. Accordingly, in such cases, the taxpayer should no longer be held administratively liable under Part 1 or Part 2 of Article 280-1 of the Administrative Code.
For repeated non-issuance of an electronic invoice by a taxpayer within a year after the imposition of a penalty, when the taxpayer is obliged to issue it at the request of the Tax Code of the Republic of Kazakhstan, the offender is punished with a fine. The amount of the fine for committing an offense provided for in Part 2 of Article 280-1 of the Administrative Code is:
- for small businesses – 40 MCI,
- for medium–sized businesses - 100 MCI,
- for large business entities – 150 MCI.
The amounts of fines are fixed and are not subject to change by the body imposing them. At the same time, the amounts of fines are ranked in relation to each of the categories of offenders specified in the sanction of the commented norm. As a result, when imposing a punishment on an offender under Part 2 of Article 280-1 of the Administrative Code, it is necessary to establish which group of business entities he belongs to.
A fine is imposed by the state revenue authorities or the court, in the case of an administrative offense case in court.
Part 3 of the commented article establishes administrative responsibility for the taxpayer's statement of an invoice in electronic form in violation of the deadline set for this in the Tax Code of the Republic of Kazakhstan.
An electronic invoice statement should be charged for delay in cases where the taxpayer, who is required by the Tax Code of the Republic of Kazakhstan to issue an electronic invoice, did so before bringing him to justice, but at the same time violated the deadlines established by the Tax Code of the Republic of Kazakhstan for issuing an electronic invoice.
The offense provided for in Part 3 of the commented article forms an independent structure. In this regard, when the state revenue authority or the court establishes the fact that the taxpayer issued an electronic invoice, committed by the taxpayer after the fact of non-issuance of the invoice was revealed, but before the taxpayer was brought to administrative responsibility, the taxpayer's actions should be qualified already under Part 3 of art. 280-1 of the Administrative Code as a delay in issuing an electronic invoice.
If a taxpayer commits an offense under Part 3 of Article 280-1 of the Administrative Code, it entails the application of an administrative penalty in the form of a warning.
This penalty is imposed on offenders by the state revenue authorities by specifying it in the resolution on the imposition of an administrative penalty and declaring it to the offender, as well as mandatory delivery or sending him a copy of the resolution. In this case, in order to qualify further actions of the offender when committing similar offenses in the future, the person is considered to have been subjected to administrative punishment from the moment of delivery (referral) He likes it.
Part 4 of the commented article establishes administrative liability for repeated commission of an action provided for in Part 3 of the commented article within a year after the imposition of an administrative penalty.
The repetition of the offense provided for in Part 3 of Article 280-1 of the Administrative Code entails the qualification of an unlawful act for delaying an electronic invoice statement as an independent offense under Part 4 of Article 280-1 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 an offense under Part 3 or 4 of art. 280-1 of the Administrative Code, the existence of an effective and unturned resolution on the imposition of an administrative penalty under Part 3 or 4 of Article 280-1 of the Administrative Code and the non-expiration of a one-year period from the date of imposition of the penalty.
The delay in issuing an electronic invoice cannot be a continuing offense, since it implies that the taxpayer issues an invoice, but in violation of the deadline set by law. Accordingly, the offense is considered completed at the moment when the taxpayer has issued an electronic invoice in violation of the deadline set by law. However, a new episode of delay in the taxpayer's electronic invoice statement will be considered as repeated in order to qualify the illegal act as an offense under Part 4 of the commented article only if the taxpayer has already been brought to administrative responsibility earlier in the year under Part 3 of the commented article and the one-year period has not expired after that, and the resolution has not been canceled. In all other cases, if there are several episodes of a taxpayer's delay in issuing electronic invoices, such actions should be qualified under Part 3 of Article 280-1 of the Administrative Code and formalized as part of one administrative offense proceeding. In other words, without a decree on the imposition of penalties under Part 3 of Article 280-1 of the Administrative Code, which has entered into legal force and was issued within a year before the new fact of the delay in issuing electronic invoices was revealed, the body imposing penalties on the taxpayer for the delay in issuing electronic invoices must execute all episodes of the specified illegal action of the taxpayer established by it. a single protocol and a single resolution on Part 3 of Article 280-1 of the Administrative Code as a newly identified offense.
For repeated delays in the issuance of an electronic invoice by a taxpayer within a year after the imposition of a penalty, when the taxpayer is required to issue it at the request of the Tax Code of the Republic of Kazakhstan, the offender is punished with a fine. The amount of the fine for committing an offense under Part 4 of Article 280-1 of the Administrative Code is:
for small businesses – 20 MCI,
for medium–sized businesses - 50 MCI,
for large business entities – 100 MCI.
The amounts of fines are fixed and are not subject to change by the body imposing them.
At the same time, the amounts of fines are ranked in relation to each of the categories of offenders specified in the sanction of the commented norm. As a result, when imposing a punishment on an offender under Part 4 of Article 280-1 of the Administrative Code, it is necessary to establish which group of business entities he belongs to.
A fine is imposed by the state revenue authorities or the court, in the case of an administrative offense case in court.
Part 5 of the commented article establishes administrative responsibility for the absence of shipping documents from a person moving goods included in the list outside the Republic of Kazakhstan, certified by the seal of the state revenue authorities, the registration of which is provided for when exporting these goods outside the territory of the Republic of Kazakhstan.
At the same time, according to the note to the commented article, the goods included in the list should be understood as goods that have the code of the unified Commodity nomenclature of foreign economic activity (HS). Of the Eurasian Economic Union (EAEU) and the name of which are included in the list of goods in accordance with the protocol on certain issues of import and circulation of goods in the customs territory of the Eurasian Economic Union, ratified by the Law of the Republic of Kazakhstan dated December 9, 2015.
The objective side of the administrative offense provided for in Part 5 of Article 280-1 of the Administrative Code is that the offender moved the goods included in the list outside the Republic of Kazakhstan according to shipping documents not stamped by the state revenue authorities. Such movement is carried out in violation of the procedure established by the EAEU member States for accounting for the movement of goods on the territory of the EAEU.
Committing an offense under Part 5 of Article 280-1 of the Administrative Code entails a fine of 50 MCI for the offender.
Part 6 of the commented article establishes the administrative responsibility of a person exporting goods included in the list outside the Republic of Kazakhstan for repeated commission of an action provided for in Part 5 of the commented article within a year after the imposition of an administrative penalty on him.
For repeated movement of goods included in the list by a person outside the Republic of Kazakhstan within a year after the imposition of the penalty, according to shipping documents not stamped by the state revenue authorities, the offender is subject to administrative punishment in the form of a fine of 100 MCI.
A fine is imposed by the state revenue authorities or the court if the case is being considered by the 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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