Commentary to article 472. Violation of the rules of accounting and further use of property acquired by the state on separate grounds, in cases provided for by legislative acts The Code of the Republic of Kazakhstan on Administrative Offences
1. Incomplete and (or) untimely transfer to the authorized body of property acquired by the state on separate grounds, if these acts do not have signs of a criminally punishable act, namely:
1) confiscated on the basis of judicial acts for state revenue;
2) material evidence on the basis of judicial acts transferred to the state revenue;
3) treasures containing items related to historical and cultural monuments;
4) gifts received by persons holding a responsible public position, persons authorized to perform public functions, persons equated to them (with the exception of candidates for President of the Republic of Kazakhstan, deputies of the Parliament of the Republic of Kazakhstan or maslikhats, akims of cities of regional significance, towns, villages, rural districts, as well as members of elected local self-government bodies). local government authorities), officials, as well as persons who are candidates authorized to perform these functions, which are subject to donation to a special state fund.;
5) transferred to republican ownership in other cases provided for by legislative acts, including goods and vehicles issued in the customs regime of refusal in favor of the state.;
6) recognized as ownerless in accordance with the established procedure;
7) transferred by right of inheritance to the state, including extortionate inheritance;
8) finds;
9) neglected animals, -
entails a fine for individuals in the amount of eight, for officials - in the amount of fifteen, for legal entities - in the amount of forty-five monthly calculation indices.
2. Non-compliance with the accounting, storage, valuation and sale of property acquired by the State on separate grounds, committed in the form of:
1) failure to ensure the safety of documents certifying the emergence of state ownership rights;
2) the choice of the auction organizer is not through public procurement of services for the organization and conduct of auctions;
3) non-destruction of property not sold at the lowest price;
4) late transfer to the state budget of the amounts from the sale of such property, -
entails a fine for officials in the amount of fifteen, for legal entities - in the amount of forty-five monthly calculation indices.
The commented article establishes administrative liability for violation of the rules established by the legislative acts of the Republic of Kazakhstan for the accounting and further use of property acquired by the state on separate grounds, and contains two independent elements of an administrative offense in this area of public relations.
The generic object of offenses provided for in Article 472 of the Administrative Code is the tax administration procedure established in the legislation of the Republic of Kazakhstan and protected by the state.
The direct object of administrative offenses provided for in the commented article is the procedure established in the legislative acts of the Republic of Kazakhstan and protected by the state for the transfer, accounting, storage and further use of property acquired by the state on certain non-tax (including private law) grounds.
The subjects of the offense provided for in Part 1 of Article 472 of the Administrative Code, by virtue of the direct indication of this in the sanctions of the commented article, are individuals, legal entities and officials who have failed to fulfill their existing obligation, at the request of the legislation of the Republic of Kazakhstan, to transfer in a timely manner and in full to the authorized body the property that became the property of the state on separate grounds.
The subjects of the offense provided for in Part 2 of Article 472 of the Administrative Code are legal entities and officials who have violated the procedure established in the legislative acts of the Republic of Kazakhstan for accounting, storage, evaluation and sale of property owned by the state on separate grounds.
According to the note to Article 30 of the Administrative Code, officials in the Administrative Code are recognized as persons who, permanently, temporarily or by special authority, perform or were performing at the time of the commission of an administrative offense the functions of a government representative or who were performing or were performing at the time of the commission of an administrative offense organizational, administrative or economic functions in state institutions, quasi-public sector entities, local governments.
At the same time, at the request of the norm of Article 30 of the Administrative Code, an official is brought to administrative responsibility if he commits an administrative offense in connection with non-fulfillment or improper performance of his official duties. In the absence of this circumstance, an official guilty of committing an administrative offense is liable on general grounds.
The subjective side of the acts provided for in Article 472 of the Administrative Code is characterized by guilt in the form of intent or negligence of individuals and officials who committed offenses. The guilt of an individual and an official is revealed by their mental attitude towards the illegal acts committed by them.
The subjective side of offenses, the subjects of which are legal entities, is not subject to determination due to the existence of a legal requirement to establish guilt as a condition for bringing to administrative responsibility, only in relation to individuals. According to the legislation of the Republic of Kazakhstan on administrative responsibility, legal entities are administratively liable for the mere fact that they have committed an illegal act or omission, for which administrative liability is provided for in the Administrative Code, without taking into account the guilt of the authorized persons of the legal entity who committed this act.
Part 1 of the commented article establishes administrative liability for incomplete and (or) untimely transfer to the authorized body of property that has become the property of the state on certain grounds.
The objective side of the administrative offense provided for in Part 1 of the commented article is expressed in the commission of illegal actions (inaction) by a person in the form of incomplete and (or) untimely transfer to the authorized body of the following property that has become the property of the state and is in the possession of the offender:
1) confiscated on the basis of judicial acts for state revenue;
2) material evidence on the basis of judicial acts transferred to the state revenue;
3) treasures containing items related to historical and cultural monuments;
4) gifts received by persons holding a responsible public position, persons authorized to perform public functions, persons equated to them (with the exception of candidates for President of the Republic of Kazakhstan, deputies of the Parliament of the Republic of Kazakhstan or maslikhats, akims of cities of regional significance, towns, villages, rural districts, as well as members of elected local governments), officials, as well as persons who are candidates authorized to perform these functions, which are subject to donation to a special state fund.;
5) transferred to republican ownership in other cases provided for by legislative acts, including goods and vehicles issued in the customs regime of refusal in favor of the state.;
6) recognized as ownerless in accordance with the established procedure;
7) transferred by right of inheritance to the state, including extortionate inheritance;
8) finds;
9) neglected animals.
Unlawful acts committed by obligated persons with the above-mentioned property entail administrative liability only if they do not have signs of a criminally punishable act provided for in the Criminal Code.
At the request of paragraph 1 of Article 174 of the Tax Code of the Republic of Kazakhstan, control over compliance by obligated persons with the procedure for transferring property that has been converted (received) into state ownership is carried out by state revenue authorities. Based on the results of such control, they identify violations and make demands for their elimination. The procedure, terms and form of such control are established by the legislation of the Republic of Kazakhstan.
The composition of the offense provided for in Part 1 of the commented article is formal. In order to bring a person to administrative responsibility under Part 1 of the commented article, it is not necessary to establish the fact and amount of damage caused to the state by incomplete and (or) untimely transfer to the authorized body of property owned by the state on separate grounds. At the same time, if the fact of causing damage to the state from the commission of an administrative offense is established, such damage, according to Part 5 of art. 55 of the Administrative Code, can be collected from the offender according to the rules of art. 59 of the Administrative Code in addition to collecting a fine.
For the commission of an offense provided for in Part 1 of the commented article, the person who committed it is subject to punishment in the form of a fine.
The amount of the fine for committing an offense under Part 1 of Article 472 of the Administrative Code is:
for individuals – 8 MCI,
for officials – 15 MCI,
for legal entities – 45 MCI.
The amount of the fine for committing an offense under Part 1 of Article 472 of the Administrative Code is fixed and cannot be changed by the body imposing it.
A fine is imposed by the state revenue authorities or the court, in the case of an administrative offense case in court.
Part 2 of the commented article establishes administrative liability for non-compliance by obligated persons with the procedure established in the legislation of the Republic of Kazakhstan for accounting, storage, evaluation and sale of property owned by the state on separate grounds.
In accordance with Article 211 of the Law of the Republic of Kazakhstan "On State Property", authorized state property management bodies or local executive bodies of districts and cities of regional significance are responsible for accounting, storage and further use of state-owned property on separate grounds.
The persons responsible for the assessment and sale of state-owned property on separate grounds are specialized organizations engaged in the assessment and sale of State property.
The procedure for accounting, storage, evaluation and further use of property that has been transferred (received) into state ownership on separate grounds is determined by the legislation of the Republic of Kazakhstan.
174 of the Tax Code of the Republic of Kazakhstan, control over compliance by obligated persons with the accounting, storage, evaluation, further use and sale of property transferred (received) into state ownership, as well as over the completeness and timeliness of the receipt of money to the budget in case of its sale, is carried out by the state revenue authorities. Based on the results of such control, they identify violations of the specified procedure and make demands for their elimination.
The objective side of the administrative offense provided for in Part 2 of the commented article is expressed in the commission by the obligated person of specific illegal actions (inaction) specified in the commented norm in the form of:
1) failure to ensure the safety of documents certifying the emergence of state ownership rights;
2) the choice of the auction organizer is not through public procurement of services for the organization and conduct of auctions;
3) non-destruction of property that has not been sold at a minimum price, in accordance with the procedure established for this by the legislation of the Republic of Kazakhstan. As required by paragraph 1 of Article 213 of the Law of the Republic of Kazakhstan "On State Property", the procedure for the use and destruction of property not sold at a minimum price is established by the Government of the Republic of Kazakhstan.;
4) late transfer to the state budget of the amounts from the sale of such property. At the request of paragraph 3 of Article 213 of the Law of the Republic of Kazakhstan "On State Property", the proceeds from the sale of property that became state property on separate grounds are credited to the budget revenue in accordance with the procedure established by the Budget Code of the Republic of Kazakhstan.
The list of the above-mentioned illegal actions (inaction) in order to qualify the objective side of the administrative offense provided for in Part 2 of the commented article is exhaustive and is not subject to arbitrary modification or extended interpretation by law enforcement agencies.
The composition of the offense provided for in Part 2 of the commented article is formal. In order to bring a legal entity or an official to administrative responsibility and calculate a fine under Part 2 of the commented article, it is not necessary to establish the fact and amount of damage caused to the state from their failure to comply with the accounting, storage, evaluation and sale of property owned by the state on separate grounds. However, if the fact of causing damage to the State from the commission of an administrative offense is established, such damage, according to Part 5 of art. 55 of the Administrative Code, can be collected from the offender according to the rules of art. 59 of the Administrative Code in addition to collecting a fine.
For the commission of an offense provided for in Part 2 of the commented article, a legal entity or an official is subject to punishment in the form of a fine. A fine is levied against a legal entity and an official at their own expense.
The amount of the fine for committing an offense provided for in Part 2 of Article 472 of the Administrative Code is:
for officials – 15 MCI,
for legal entities – 45 MCI.
The amount of the fine for committing an offense under Part 2 of Article 472 of the Administrative Code is fixed and cannot be changed by the body imposing it.
A fine is imposed by the state revenue authorities or the court, in the case of an administrative offense case 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.);
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
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
