Commentary on Article 246. Illegal Actions in Respect of Property Restricted from Disposal on Account of a Taxpayer’s Tax Debt, a Payer’s Debt in Respect of Customs Payments, Taxes, Special, Anti-Dumping and Countervailing Duties, Penalties and Interest under the Criminal Code of the Republic of Kazakhstan

1. Embezzlement, alienation, concealment or unlawful transfer of property in respect of which the state revenue authorities have imposed a restriction on disposal, as well as refusal to transfer such property in cases provided for by the legislation of the Republic of Kazakhstan, committed by a person whose property is subject to such restriction, as well as the performance of banking transactions by an employee of a bank or an organization carrying out certain types of banking operations on bank accounts in respect of which the state revenue authorities have suspended debit transactions, —

shall be punishable by a fine in an amount of up to two hundred monthly calculation indices, or correctional labor in the same amount, or community service for a period of up to two hundred hours, or arrest for a period of up to fifty days.

The public danger of this criminal misdemeanor is обусловлена by illegal actions in respect of property restricted from disposal on account of a taxpayer’s tax debt, a payer’s debt in respect of customs payments, taxes, special, anti-dumping and countervailing duties, penalties and interest, which may cause substantial harm to the economic security of organizations and the state.

The object of this criminal misdemeanor is social relations aimed at ensuring the fulfillment of tax obligations by legal entities and individuals.

The subject matter of the criminal misdemeanor is property in respect of which the state revenue authorities have imposed a restriction on disposal, as well as monetary funds (deposits) in respect of which the state revenue authorities have suspended debit transactions.

According to subparagraph 44) of paragraph 1 of Article 1 of the Code of the Republic of Kazakhstan “On Taxes and Other Mandatory Payments to the Budget (Tax Code),” a state revenue authority is a state body that, within its competence, ensures the receipt of taxes and payments into the budget, carries out customs regulation in the Republic of Kazakhstan, exercises powers to prevent, identify, suppress and investigate administrative offenses assigned by the legislation of the Republic of Kazakhstan to the jurisdiction of this authority, and also performs other powers provided for by the legislation of the Republic of Kazakhstan.

The objective side of this criminal offense consists in the commission of one of the following acts:

embezzlement of property in respect of which the state revenue authorities have imposed a restriction on disposal;

alienation of property in respect of which the state revenue authorities have imposed a restriction on disposal;

concealment of property in respect of which the state revenue authorities have imposed a restriction on disposal;

unlawful transfer of property in respect of which the state revenue authorities have imposed a restriction on disposal;

refusal to transfer such property in cases provided for by the legislation of the Republic of Kazakhstan, committed by a person whose property is subject to such restriction;

performance of banking transactions by an employee of a bank or an organization carrying out certain types of banking operations on bank accounts containing monetary funds (deposits) in respect of which the state revenue authorities have suspended debit transactions.

Embezzlement means actions as a result of which property is used or spent and is no longer available.

Alienation means an action as a result of which property comes into the possession of another person, for example, through sale, donation, exchange, pledge, etc.

Concealment should be understood as actions as a result of which property is placed in a location where it cannot be discovered.

Unlawful transfer of property in respect of which the state revenue authorities have imposed a restriction on disposal occurs when a person transfers such property to any person without the knowledge of representatives of the state revenue authorities.

Refusal to transfer such property in cases provided for by the legislation of the Republic of Kazakhstan, committed by a person whose property is subject to such restriction, is manifested in the person's disregard of the lawful demands of the state revenue authorities to transfer such property for the performance of certain lawful actions.

The list of banking operations is provided in paragraph 2 of Article 30 of the Law of the Republic of Kazakhstan “On Banks and Banking Activities in the Republic of Kazakhstan” (see the commentary to Article 242 of the Criminal Code).

By its structure, the corpus delicti of the criminal misdemeanor under consideration is formal. The criminal misdemeanor shall be considered completed from the moment one of the acts specified in the disposition of the commented article is committed.

From the subjective side, the criminal misdemeanor is committed intentionally. The person is aware that they are engaging in the embezzlement, alienation, concealment or unlawful transfer of property in respect of which the state revenue authorities have imposed a restriction on disposal, as well as refusing to transfer such property in cases provided for by the legislation of the Republic of Kazakhstan, foresees the possibility or inevitability of consequences arising and desires their occurrence.

The subject of the criminal misdemeanor is a sane individual who has reached the age of sixteen.

In cases of embezzlement, alienation, concealment or unlawful transfer of property in respect of which the state revenue authorities have imposed a restriction on disposal, as well as refusal to transfer such property in cases provided for by the legislation of the Republic of Kazakhstan, the subject may be the person whose property is subject to a restriction on disposal.

When banking transactions are performed with monetary funds (deposits) in respect of which the state revenue authorities have suspended debit transactions, the subject may be an employee of a credit institution.

The act provided for by Article 246 of the Criminal Code is classified as a criminal misdemeanor.

Commentary of 2021 to the Criminal Code of the Republic of Kazakhstan, by Isidor Shamilovich Borchashvili, Honored 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, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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