Commentary on Article 236. Evasion of Payment of Customs Duties, Customs Fees, Taxes, Special, Anti-Dumping and Countervailing Duties of the Criminal Code of the Republic of Kazakhstan
1. Evasion of payment of customs duties, customs fees, taxes, special, anti-dumping and countervailing duties in large amounts —
shall be punishable by a fine in an amount of up to eighty monthly calculation indices, or correctional labour in the same amount, or community service for a period of up to eighty hours, or arrest for a period of up to twenty days.
2. The same act committed by an official through the use of his or her official position —
shall be punishable by a fine in an amount of up to one thousand monthly calculation indices, or correctional labour in the same amount, or community service for a period of up to four hundred hours, or restriction of liberty for a period of up to one year, or deprivation of liberty for the same period.
3. The acts provided for in Parts One or Two of this Article, committed by a criminal group —
shall be punishable by deprivation of liberty for a period of two to five years.
Note. A person who voluntarily pays the resulting debt for customs duties, customs fees, taxes, special, anti-dumping and countervailing duties, as well as penalties and interest, where accrued, and the amount of fines established by the legislation of the Republic of Kazakhstan, shall be exempt from criminal liability under Part One of this Article, provided that his or her actions do not contain the elements of another criminal offence.
The public danger of the criminal offence (Part 1 — a criminal misdemeanour; Parts 2 and 3 — crimes) lies in the fact that evasion of customs payments and fees violates the established procedure for foreign economic activity, while the failure of customs payments and fees to enter the budget causes damage to the financial interests of the State.
The object of evasion of customs payments and fees is the public relations ensuring the established procedure for the State's foreign economic activity.
The legal basis for regulating foreign economic activity in the Republic of Kazakhstan is the Code of the Republic of Kazakhstan dated December 26, 2017, “On Customs Regulation in the Republic of Kazakhstan”, as well as other regulatory legal acts establishing the procedure for the formation and application of the customs tariff applied when importing goods and other items into the customs territory of the Republic of Kazakhstan and exporting them beyond that territory, as well as the rules governing the imposition of customs duties on such goods and other items.
The subject matter of the criminal offence comprises customs duties, taxes, customs fees, special, anti-dumping and countervailing duties.
According to Part 1 of Article 74 of the Customs Code, customs payments and taxes include: 1) import customs duty; 2) export customs duty; 3) value added tax levied upon the importation of goods into the customs territory of the Eurasian Economic Union; 4) excise duty (excise duties) levied upon the importation of goods into the customs territory of the Eurasian Economic Union; 5) customs fees.
According to paragraph 1 of Article 3 of the Customs Code:
customs duty means a mandatory payment collected by customs authorities in connection with the movement of goods across the customs border of the Eurasian Economic Union (subparagraph 17);
customs duties and taxes levied at uniform rates mean the amount of customs duties and taxes calculated in respect of goods for personal use without separating the constituent customs duties and taxes (subparagraph 4);
customs payments mean customs fees and customs duties payable to the budget in accordance with the Customs Code in connection with the movement of goods across the customs border of the Eurasian Economic Union (subparagraph 26);
taxes mean value added tax and excise duty (excise duties) collected by customs authorities upon the importation of goods into the customs territory of the Eurasian Economic Union (subparagraph 42).
Customs duty rates are divided into: 1) ad valorem rates — established as a percentage of the customs value of the goods subject to taxation; 2) specific rates — established depending on the physical characteristics of the goods in quantitative terms (quantity, weight, volume or other characteristics); 3) combined rates — combining both of the above types of customs duty rates (Article 75 of the Customs Code).
Customs fees include: 1) a customs fee for customs declaration of goods; 2) a customs fee for customs escort. When goods transported by several motor vehicles are subject to customs escort, the amount of the customs fee is divided proportionally according to the number of the said vehicles; 3) a customs fee for the adoption of a preliminary decision (Article 77 of the Customs Code).
The objective element of this criminal offence is characterised by evasion of payment of customs duties, customs fees, taxes, special, anti-dumping and countervailing duties in large amounts.
In accordance with Article 81 of the Customs Code, the payers of customs duties and taxes are the declarant or other persons upon whom the obligation to pay customs duties and taxes has arisen.
The payer of the customs fee for customs declaration of goods is the payer of customs duties and taxes.
The payer of the customs fee for customs escort is the person in respect of whom a decision on customs escort has been made.
The payer of the customs fee for the adoption of a preliminary decision is the person who submitted an application for the adoption of such a preliminary decision.
The deadlines for payment of customs duties and taxes are established in Article 90 of the Customs Code.
With regard to goods for which specific customs declaration procedures are established under Article 189 and Chapter 43 of the Customs Code, the deadlines for payment of customs duties and taxes are determined in accordance with the said Article and Chapter.
With regard to goods placed (already placed) under a special customs procedure, the deadlines for payment of customs duties and taxes are determined in accordance with Article 337 of the Customs Code by the Commission and, in cases provided for by the Commission, by the Government of the Republic of Kazakhstan.
If the payer fails to fulfil or improperly fulfils the obligation to pay customs duties and taxes within the period established by the Customs Code, penalties shall be payable, except in the case specified in the third part of paragraph 4 of Article 90 of the Customs Code.
Payment or collection, as well as crediting (refund) of penalties, shall be carried out in the manner prescribed by the Customs Code for the payment or collection, as well as crediting (refund), of the amounts of the corresponding customs duties, customs fees and taxes.
Penalties shall not be payable where the customs authority responsible for collecting customs duties and taxes has received confirmation, in accordance with the procedure determined by the Commission pursuant to paragraph 3 of Article 85 of the Customs Code, that circumstances have arisen under which the obligation to pay customs duties and taxes is terminated.
The deadline for submitting a customs declaration is established in accordance with Article 181 of the Customs Code.
A customs declaration in respect of goods imported into the customs territory of the Eurasian Economic Union shall be submitted before the expiration of the period of temporary storage of goods or within another period established by the Customs Code.
A customs declaration in respect of goods exported from the customs territory of the Eurasian Economic Union shall be submitted before their departure from the customs territory of the Eurasian Economic Union, unless otherwise provided for by the Customs Code.
In accordance with Article 76 of the Customs Code, customs fees are mandatory payments collected for the performance by customs authorities of customs operations related to the release of goods, customs escort of vehicles, as well as for the performance of other actions established by the Customs Code.
The rates of customs fees are established by the Government of the Republic of Kazakhstan.
The amount of customs fees may not exceed the estimated cost of the expenses incurred by customs authorities in performing the actions for which such customs fees have been established.
The payers of customs fees, types, deadlines and procedures for payment of customs fees, their collection and crediting (refund), benefits for the payment of customs fees, as well as cases in which customs fees are not payable, are established by the Customs Code.
Customs duties, taxes and penalties shall be paid into the budget by the payer in cash or by non-cash means in the national currency, as well as through offsets in the manner established by the Customs Code of the Republic of Kazakhstan.
Payment of customs duties and taxes shall be made by payers through second-tier banks holding a licence issued by the authorised body responsible for regulation and supervision of the financial market and financial organisations, as well as through organisations carrying out certain types of banking operations.
Evasion of payment of customs duties, customs fees, taxes, special, anti-dumping and countervailing duties may be expressed in the following forms:
declaring inaccurate information that results in exemption from customs duties, customs fees, taxes, special, anti-dumping and countervailing duties or a reduction in their amount;
submitting documents containing inaccurate information that entitles a person to a refund of paid customs duties, customs fees, taxes, special, anti-dumping and countervailing duties, to receive payments and other reimbursements, or to fail to return them or to return them only in part;
violating the deadlines for payment of customs duties, customs fees, taxes, special, anti-dumping and countervailing duties.
The elements of this criminal offence are formal, meaning that the offence is deemed completed from the moment the deadline for payment of customs duties, customs fees, taxes, special, anti-dumping and countervailing duties in large amounts expires. In accordance with subparagraph 38) of Article 3 of the Criminal Code, a large amount is recognised as the value of unpaid customs duties, customs fees, taxes, special, anti-dumping and countervailing duties exceeding five thousand monthly calculation indices.
The subjective element of this criminal offence is characterised by guilt in the form of direct intent. The perpetrator is aware that he or she is evading payment of customs duties, customs fees, taxes, special, anti-dumping and countervailing duties in large amounts and desires to commit this act.
The subject of the criminal offence is a sane natural person who has attained the age of sixteen.
Part 2 of Article 236 of the Criminal Code establishes increased criminal liability for evasion of payment of customs duties, customs fees, taxes, special, anti-dumping and countervailing duties committed by an official through the use of his or her official position. When qualifying an act committed by an official through the use of his or her official position, reference should be made to an official of a customs authority who, by virtue of his or her official duties, is required to exercise control over the payment of customs duties, customs fees, taxes, special, anti-dumping and countervailing duties. The concept of an official is defined in subparagraph 26) of Article 3 of the Criminal Code (see the commentary to Article 3 of the Criminal Code of the Republic of Kazakhstan).
The particularly aggravated offences of evasion of payment contained in Part 3 of Article 236 of the Criminal Code establish liability for the commission, by a criminal group, of the acts provided for in Parts 1 or 2 of this Article. The concept of a criminal group is defined in subparagraph 24) of Article 3 and Part 3 of Article 31 of the Criminal Code.
The Note to Article 236 of the Criminal Code provides for grounds for exemption from criminal liability. A person who voluntarily pays the resulting debt for customs duties, customs fees, taxes, special, anti-dumping and countervailing duties, as well as penalties and interest, where accrued, and the amount of fines established by the legislation of the Republic of Kazakhstan, shall be exempt from criminal liability under Part 1 of Article 236 of the Criminal Code, provided that his or her actions do not contain the elements of another criminal offence.
The act provided for in Part 1 of Article 236 of the Criminal Code is classified as a criminal misdemeanour.
The act provided for in Part 2 of Article 236 of the Criminal Code is classified as a minor crime.
The act provided for in Part 3 of Article 236 of the Criminal Code is classified as a crime of medium gravity.
Commentary of 2021 to the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, Member of the Working Group on Reform of the Law Enforcement System under the Security Council of the Republic of Kazakhstan, Honoured Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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