Commentary to article 239. Violation of the legislation of the Republic of Kazakhstan on accounting and financial reporting by a legal entity. The Code of the Republic of Kazakhstan on Administrative Offences
1. Violation of the legislation of the Republic of Kazakhstan on accounting and financial reporting by a legal entity committed in the form of:
1) evasion from accounting, if this action does not contain signs of a criminally punishable act;
2) submitting knowingly unreliable financial statements, refusing to submit financial statements, submitting them in violation of the established deadline or failing to submit them without a valid reason to the founders (participants) of organizations in accordance with the constituent documents, to the authorized body in the field of state statistics at the place of registration, to state control and supervision bodies in accordance with their competence, to the depository of financial reporting;
3) preparation of distorted financial statements, concealment of data to be reflected in accounting, as well as destruction of accounting documentation;
4) signing of financial statements by the chief accountant of a public interest organization who is not a professional accountant, -
entails a fine for small businesses or non-profit organizations in the amount of one hundred, for medium-sized businesses - in the amount of two hundred, for large businesses - in the amount of five hundred monthly calculation indices.
2. The act 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 or non-profit organizations in the amount of two hundred, for medium-sized businesses - in the amount of four hundred, for large businesses - in the amount of one thousand monthly calculation indices.
3. Conducting transactions without proper reflection of their results in accounting by financial organizations, microfinance organizations -
entails a fine on legal entities in the amount of twenty percent of the amount that was not taken into account, but not less than one hundred and not more than four thousand monthly calculation indices.
4. Maintaining accounting records in violation of the requirements established by the legislation of the Republic of Kazakhstan on accounting and financial reporting, and accounting methods (principles) that led to the distortion of financial statements by financial organizations, microfinance organizations -
entails a fine on legal entities in the amount of up to five percent of the amount that was improperly accounted for, but not less than one hundred and not more than four thousand monthly calculation indices.
5. Failure or late submission of reports on their activities to the authorized body by accredited professional organizations of accountants and (or) organizations for professional certification of accountants in accordance with the procedure established by the legislation of the Republic of Kazakhstan -
they entail a fine on legal entities in the amount of one hundred and fifty monthly calculation indices.
Note. A distortion of financial statements for the purposes of parts one, two and four of this article is recognized as a distortion in the amount of more than one hundred monthly calculation indices.
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The commented article establishes administrative liability for violation of the legislation of the Republic of Kazakhstan on accounting and financial reporting by a legal entity.
The generic object of offenses provided for in Article 239 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 accounting and financial reporting procedures of organizations.
The subjects of offenses provided for in Article 239 of the Administrative Code, by virtue of the direct indication of this in the sanctions of the commented article, are legal entities: non-profit organizations, business entities.
The subjective side of the acts provided for in Article 239 of the Administrative Code cannot be established due to the fact that their subjects are legal entities.
Part 1 of the commented article establishes administrative liability for violation of the legislation of the Republic of Kazakhstan on accounting and financial reporting by a legal entity.
The objective side of the offense provided for in Part 1 of Article 239 of the Administrative Code is that the offender commits unlawful acts (inaction) in the form of:
1) evasion from accounting, if this action does not contain signs of a criminally punishable act;
2) submission of knowingly unreliable financial statements,
3) refusal to submit financial statements, submission in violation of the deadline
4) failure to submit financial statements without a valid reason to the founders (participants) of organizations in accordance with the constituent documents, to the authorized body in the field of state statistics at the place of registration, to state control and supervision bodies in accordance with their competence, to the financial reporting depository;
5) preparation of distorted financial statements, concealment of data to be reflected in accounting, as well as destruction of accounting documentation;
6) signing of financial statements by the chief accountant of a public interest organization who is not a professional accountant.
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 the operations 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 establishments 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) are required to maintain accounting records and prepare financial statements when carrying out their activities.
The evasion of organizations 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, the guilty officials of the 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 stakeholders with complete and reliable information about the financial position, performance results and changes in the financial position of organizations.
As required by clause 1 of Article 19 of the Law of the Republic of Kazakhstan "On Accounting and Financial Reporting", organizations submit financial statements.: 1) to the founders (participants) in accordance with the constituent documents; 2) to the authorized body in the field of state statistics at the place of state registration; 3) to the state control and supervision bodies of the Republic of Kazakhstan in accordance with their competence; 4) to their main organization, in relation to which they are subsidiaries, in accordance with the procedure determined by the main organization, including the list, forms, and deadlines.
Organizations submit annual financial statements no later than April 30 of the year following the reporting year. The founders (participants) have the right to determine the deadlines for the submission of interim financial statements and to set a different frequency, but at least once a year.
Financial organizations (with the exception of legal entities whose exclusive activity is the collection of banknotes, coins and valuables) and microfinance organizations submit annual financial statements within the time limits set by the National Bank of the Republic of Kazakhstan.
Failure to submit, untimely submission, or submission by organizations of financial statements containing false information to the founders (participants), the main organization, state statistical authorities, and state control and supervision authorities constitutes a complete offense under Part 1 of the commented article.
As required by Clause 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 in line with analytical (detailed).
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 the 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 article.
At the same time, according to the note to the commented article, a distortion of financial statements is recognized as a distortion in the amount of more than one hundred monthly calculation indices.
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.
15 of the Law of the Republic of Kazakhstan "On Accounting and Financial Reporting", the financial statements of a public interest organization are signed by the management and the chief accountant, who is a professional accountant.
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 for the signing of financial statements by a public organization by the chief accountant, who is a professional accountant, forms the final composition of the administrative offense provided for in Part 1 of the commented article.
The composition of the offense provided for in Part 1 of the commented article is formal. In order to calculate and impose a fine on an offender under Part 1 of the commented article, it is not necessary to establish the fact and amount of damage caused to the State by the commission of an offense.
For committing an offense provided for in Part 1 of the commented article, business entities and individuals are subject to punishment in the form of a fine.
Depending on the legal status of the offender and the business category to which he belongs, the amount of the fine is:
- for small businesses or non-profit organizations - 100 MCI;
- for medium-sized businesses - 200 MCI;
- for large business entities - 500 MCI.
The amounts of fines for each of the above categories of subjects of an offense are fixed and are not subject to change by the body imposing them.
This penalty is imposed on offenders by the state revenue authorities, the bodies of the Ministry of Finance of the Republic of Kazakhstan or 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 acts 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 239 of the Administrative Code.
In the description of the objective side of the offense provided for in Part 2 of Article 239 of the Administrative Code, a sign of repetition is added to the acts 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 acts provided for in Part 1 of Article 239 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 239 of the Administrative Code.
Repetition 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 the commission of acts provided for in Part 1 of Article 239 of the Administrative Code, the existence of an effective resolution of the state revenue authorities, the Ministry of Finance of the Republic of Kazakhstan or the court on the imposition of administrative penalty under part 1 of art . 239 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.
The composition of the offense provided for in Part 2 of the commented article is formal. In order to calculate and impose a fine on an offender under Part 2 of the commented article, it is not necessary to establish the fact and amount of damage caused by the commission of an offense.
For repeated commission of the act provided for in Part 1 of Article 239 of the Administrative Code within a year after the imposition of the penalty, the offender is punished with a fine.
Depending on the legal status of the offender and the business category to which he belongs, the amount of the fine is:
- for small businesses or non-profit organizations - 200 MCI;
- for medium-sized businesses - 400 MCI;
- for large business entities - 1000 MCI.
The amounts of fines for each of the above categories of subjects of an offense are fixed and are not subject to change by the body imposing them.
This penalty is imposed on offenders by the state revenue authorities, the bodies of the Ministry of Finance of the Republic of Kazakhstan or the court, if the case is considered in court.
Part 3 of the commented article establishes administrative responsibility for conducting transactions without appropriate reflection of their results in accounting by financial organizations and microfinance organizations.
The subjects of the offense provided for in Part 3 of the commented article are financial organizations and microfinance organizations.
The concept of financial organizations and microfinance organizations is defined respectively in the Law of the Republic of Kazakhstan "On State Regulation, Control and Supervision of the Financial Market and Financial Organizations" and in the Law of the Republic of Kazakhstan "On Microfinance Organizations".
A financial institution is a legal entity engaged in business activities for the provision of financial services.
A microfinance organization is a legal entity that is a commercial organization, the official status of which is determined by state registration with the Government for Citizens State Corporation and registration, which carries out activities to provide micro–loans, as well as additional activities permitted by the Law of the Republic of Kazakhstan "On Microfinance Organizations".
The objective side of the offense provided for in Part 3 of Article 239 of the Administrative Code is that the offender commits culpable unlawful acts (inaction) in the form of transactions without appropriate reflection of their results in accounting.
At the request of the legislative acts of the Republic of Kazakhstan on certain types of financial organizations and microfinance organizations, these organizations are required to reflect all their transactions and their results in their accounting records.
Failure by obligated persons to comply with this requirement forms the final composition of the offense provided for in Part 3 of the commented article.
The composition of the offense provided for in Part 3 of the commented article is formal. In order to calculate and impose a fine on an offender in accordance with Part 3 of the commented article, it is not necessary to establish the fact and amount of damage caused to third parties by committing an offense.
For committing an offense provided for in Part 3 of the commented article, business entities and individuals are subject to punishment in the form of a fine.
The amount of the fine for committing an offense under Part 3 of Article 239 of the Administrative Code is 20% of the amount that was not taken into account, but not less than 100 MCI and not more than 4000 MCI for the perpetrators.
This penalty is imposed on offenders by the National Bank of the Republic of Kazakhstan or a court, in the case of a court hearing.
Part 4 of the commented article establishes administrative responsibility for maintaining accounting records in violation of the requirements established by the legislation of the Republic of Kazakhstan on accounting and financial reporting, and accounting methods (principles) that led to the distortion of financial statements by financial organizations and microfinance organizations.
The subjects of the offense provided for in Part 3 of the commented article are financial organizations and microfinance organizations.
The concept of financial organizations and microfinance organizations is defined respectively in the Law of the Republic of Kazakhstan "On State Regulation, Control and Supervision of the Financial Market and Financial Organizations" and in the Law of the Republic of Kazakhstan "On Microfinance Organizations".
A financial institution is a legal entity engaged in business activities for the provision of financial services.
A microfinance organization is a legal entity that is a commercial organization, the official status of which is determined by state registration with the Government for Citizens State Corporation and registration, which carries out activities to provide micro–loans, as well as additional activities permitted by the Law of the Republic of Kazakhstan "On Microfinance Organizations".
The objective side of the offense provided for in Part 4 of Article 239 of the Administrative Code is the commission by the offender of culpable unlawful actions (inaction), expressed in accounting in violation of the requirements established by the legislation of the Republic of Kazakhstan on accounting and financial reporting, and accounting methods (principles), which led to the distortion of financial statements.
The composition of the offense provided for in Part 4 of the commented article is material. In order to calculate and impose a fine on the offender under Part 4 of the commented article, it is necessary to establish the fact of distortion of financial statements.
According to the note to the commented article, a distortion of financial statements is recognized as a distortion in the amount of more than one hundred monthly calculation indices.
For committing an offense provided for in Part 4 of the commented article, offenders are punished with a fine.
The fine for committing an offense under Part 4 of Article 239 of the Administrative Code is for legal entities up to 5% of the amount that was improperly accounted for, but not less than 100 MCI and not more than 4000 MCI. The amount of the fine imposed on the offender is determined at the discretion of the body considering the case of an administrative offense, within the limits established in the sanction of the commented norm.
This penalty is imposed on offenders by the National Bank of the Republic of Kazakhstan or a court, in the case of a court hearing.
Part 5 of the commented article establishes administrative responsibility for non-submission, late submission of reports on their activities to the authorized body by accredited professional organizations of accountants and (or) organizations for professional certification of accountants in accordance with the procedure established by the legislation of the Republic of Kazakhstan.
The subjects of the offense provided for in Part 5 of the commented article are:
1) accredited professional organizations of accountants and
2) organizations for professional certification of accountants.
An accredited professional organization of accountants is a non–profit organization that is an association of accountants and (or) accounting organizations accredited in accordance with the procedure established by the Government of the Republic of Kazakhstan.
An accredited organization for professional certification of accountants is a legal entity that certifies candidates for professional accountants, accredited in accordance with the procedure established by the Government of the Republic of Kazakhstan.
The objective side of the offense provided for in Part 5 of Article 239 of the Administrative Code is that the offender commits culpable unlawful acts (inaction) in the form of:
1) failure to submit reports on their activities to the authorized body in accordance with the procedure established by the legislation of the Republic of Kazakhstan; or
2) late submission of reports on their activities to the authorized body in accordance with the procedure established by the legislation of the Republic of Kazakhstan.
At the request of clauses 3), clause 9 and 2), Clause 10, Article 21 of the Law of the Republic of Kazakhstan "On Accounting and Financial Reporting", an accredited professional organization of accountants and an accredited organization for professional certification of accountants are required to submit reports on their activities to the authorized body.
Failure by obligated persons to comply with the above-mentioned legislative requirements forms the final composition of the offense provided for in Part 5 of the commented article.
The composition of the offense provided for in Part 5 of the commented article is formal. In order to calculate and impose a fine on an offender in accordance with Part 5 of the commented article, it is not necessary to establish the fact and amount of damage caused to third parties from the commission of an offense.
For committing an offense provided for in Part 5 of the commented article, business entities and individuals are subject to punishment in the form of a fine.
The amount of the fine for committing an offense under Part 5 of Article 239 of the Administrative Code is 150 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.
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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