Commentary to article 556. Failure to comply with the requirement of the state revenue body of the Republic of Kazakhstan to pay the amounts of customs duties, taxes, special, anti-dumping, countervailing duties, penalties, and interest due on time The Code of the Republic of Kazakhstan on Administrative Offences
Failure by a bank, insurance company, or guarantor to comply with the requirement of the state revenue authority to pay the amounts of customs duties, taxes, special, anti-dumping, countervailing duties, penalties, and interest due on time -
entails a fine for small businesses or non-profit organizations in the amount of twenty, for medium-sized businesses in the amount of forty, for large businesses in the amount of fifty monthly calculation indices.
The commented article establishes administrative liability for non-fulfillment of the requirement of the state revenue body of the Republic of Kazakhstan to pay the amounts of customs duties, taxes, special, anti-dumping, countervailing duties, penalties, and interest due on time.
The generic object of the offense provided for in Article 556 of the Administrative Code is the customs regulation procedure established in the legislation of the Republic of Kazakhstan and protected by the state in the Republic of Kazakhstan.
The direct object of the offense provided for in Article 556 of the Administrative Code is the procedure established and protected by the state for fulfilling the requirements of state revenue bodies for the payment of customs duties, taxes, and interest.
The subjects of the offense provided for in Article 556 of the Administrative Code are banks, insurance organizations, and guarantors directly indicated in the commented article.
The subjective side of the unlawful acts provided for in Article 556 of the Administrative Code for individual offenders is characterized by guilt in the form of intent or negligence. The guilt of a person is revealed by his mental attitude towards the illegal acts committed by him and their harmful consequences.
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 officials of the legal entity who committed this act.
The composition of an administrative offense provided for in Article 556 of the Administrative Code is formal. To bring to administrative responsibility for its commission, it is not necessary to establish that the offender has caused material harm to the State or third parties.
The objective side of the offense provided for in the commented article is characterized by the commission by the bank, the insurance organization, the guarantor of illegal actions (inaction), expressed in the failure to comply with the requirement of the state revenue authority to pay the amounts of customs duties, taxes, special, anti-dumping, countervailing duties, penalties, interest in due time.
According to paragraph 1 of Article 97 of the Code of the Republic of Kazakhstan "On Customs Regulation in the Republic of Kazakhstan", the obligation to pay customs duties and taxes is provided in the following ways:: 1) money; 2) bank guarantee; 3) surety; 4) pledge of property; 5) insurance contract.
Third parties who have assumed the relevant security obligations for the payer of customs duties, taxes, duties, and interest (second-tier banks, guarantors, insurance organizations), upon the occurrence of the fact that such a payer has failed to fulfill his obligations to the state budget, are obliged to fulfill his obligations for their own within the limits of the security provided by them.
At the request of the norm, paragraph 15 of art. 486 of the Code of the Republic of Kazakhstan "On Customs Regulation in the Republic of Kazakhstan", in case of non-fulfillment by persons engaged in activities in the field of customs affairs of the obligation to pay customs duties, taxes, special, anti-dumping, countervailing duties, the customs authority sends a demand to the second-tier bank that issued the bank guarantee and (or) the guarantor for payment of the amounts of customs duties due, taxes, special, anti-dumping, countervailing duties, penalties, interest within five working days after the expiration of the obligation to pay customs duties and taxes, special, anti-dumping, countervailing duties provided for by the bank's guarantee and/or guarantee agreement.
The requirement of the customs authority to pay the amounts of customs duties, taxes, special, anti-dumping, countervailing duties, penalties, and interest is subject to unconditional and mandatory execution: 1) by the second-tier bank - within two business days from the date of receipt of such request; 2) by the guarantor - within five business days from the date of receipt of such request.
The surety is liable to the customs authority to the same extent as the payer, including the payment of penalties and interest in the case of accrual of such interest for deferral or installment payment of import customs duties.
At the request of clauses 4 and 5 of art. 102 of the Code of the Republic of Kazakhstan "On Customs Regulation in the Republic of Kazakhstan", in case of non-fulfillment by the payer of the obligation to pay customs duties and taxes, the customs authority sends an insurance company (with which the payer has concluded an insurance contract for the purpose of ensuring fulfillment of the obligation to pay customs duties and taxes during customs operations) a claim for payment of the amounts of customs duties and taxes due, penalties and interest within five working days after the expiration of the terms of performance of the obligation to pay customs duties and taxes secured by the insurance contract. The claim of the customs authority for payment of the amounts of customs duties, taxes, penalties, and interest due is subject to unconditional and mandatory execution by the insurance company within two working days from the date of receipt of such claim.
The requirements of the customs authority are fulfilled at the expense of the funds of the second-tier bank that issued the bank guarantee, the insurance company that concluded the insurance contract, and (or) the guarantor who issued the guarantee for the payer.
Violation by the above-mentioned obligated persons of the deadlines established for them by the customs legislation of the EAEU and (or) the Republic of Kazakhstan for the fulfillment of the requirements of state revenue authorities for the payment of due amounts of customs duties, taxes, special, anti-dumping, countervailing duties, penalties, interest, as well as non-fulfillment of these requirements forms the final composition of the offense provided for in the commented article.
An administrative penalty in the form of a fine is imposed for committing an offense under Article 556 of the Administrative Code.
The amount of the fine for committing an offense under Article 556 of the Administrative Code is differentiated depending on the legal status of the offender, and if the offender is a business entity, it also depends on which category of business entities he belongs to. In this regard, the body bringing the offender to administrative responsibility must first establish the legal status of this person and the category of entrepreneurship to which he belongs before bringing a person to justice.
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 and non–profit organizations - 20 MCI,
- for medium–sized businesses - 40 MCI,
- for large business entities – 50 MCI.
The amounts of fines are fixed, are not tied to the amount of an outstanding or overdue payment, and are not subject to change by the body imposing them. Accordingly, the amount of the fine also does not depend on the duration of the payment delay committed by the offender.
Administrative punishment for the commission of the offense provided for in the commented article is applied to the offender once after the fact of violation by the payer of the deadline for payment is revealed based on the results of bringing the offender to justice in accordance with the procedure established for this in the Administrative Code. Repeated bringing of the offender to administrative responsibility for the same offense for which he has already been subjected to administrative punishment is not allowed.
An administrative penalty under the commented article is imposed on the offender by the state revenue authorities or 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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