Complicity in attempted tax evasion and other mandatory payments to the budget
By the verdict of the District court No. 2 of the Saryarkinsky district of Astana dated October 29, 2018: R., who had no previous criminal record, was sentenced under part 3 of Article 24, part 3 of Article 28, paragraph 2) of part 2 of Article 216 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 1 year 7 months of restriction of freedom, under Part 3 article 24, part 5 of Article 28, paragraphs 1) and 2) of part 2 of Article 245 of the Criminal Code to 1 year and 3 months of restriction of freedom. On the basis of part 2 of Article 58 of the Criminal Code, by absorbing a less severe punishment, a more severe one was finally imposed 1 year 7 months of restriction of liberty with deprivation of the right to issue invoices when carrying out business activities for a period of 1 year; K., who had no previous convictions, was convicted under part 3 of Article 24, part 5 of Article 28, paragraph 2) of part 2 of Article 216 of the Criminal Code to 1 year 6 months of restriction of freedom, according to part 3 of Article 24, part 5 of Article 28, paragraphs 1) and 2) of part 2 of Article 245 of the Criminal Code to 1 year 3 months of restriction of freedom. Based on part 2 of Article 58 of the Criminal Code, by absorbing a less severe punishment, a more severe one was finally imposed for 1 year and 6 months of restriction of liberty with deprivation of the right to issue invoices when carrying out business activities for a period of 1 year. The verdict was not reviewed on appeal. By the Court of R. and K. They were found guilty of organizing and aiding and abetting an attempt by a private business entity to issue invoices without actually performing work, providing services, or shipping goods, as well as aiding and abetting attempted tax evasion and other mandatory payments to the budget from a legal entity. So, R. entered into a preliminary criminal conspiracy with K. by issuing invoices without actually performing work, rendering services, shipping goods and selling them to entrepreneurs for monetary remuneration and facilitating private business entities in tax evasion, using invoices without actually performing work, rendering services, or shipping goods.
Complicity in attempted tax evasion and other mandatory payments to the budget
For this purpose, R. on the OLX website.kz has placed a corresponding announcement and acquired "S" LLP. Upon receipt of relevant information by the Economic Investigation Service of the Department of State Revenue (hereinafter referred to as the SIR DGD) in the Almaty region, a plan was developed to prevent criminal activity by R. and K. In this regard, an employee of L.'s Service, who was imitating criminal activity, asked R. to issue the above-mentioned invoices for a monetary reward of 4% of the total amount. R., in prior agreement with K., produced for L. forged fiscal receipts in the amount of 225,217,826 tenge. Further, R. produced and printed contracts, receipts for cash receipts, invoices, acts of allegedly performed work on the provision of services to LLP "C" for LLP "C2014" for a total amount of 225,217,826 tenge. On February 13, 2018, R. and K. flew to the city of Taldykorgan, where, while handing over the money to them, L. were detained by officers of the Department of Internal Affairs of the Almaty region. In protest, I.O. The Prosecutor General indicates that the verdict is subject to cancellation regarding the accusation of complicity in attempted tax evasion and other mandatory payments to the budget from a legal entity. The court, having correctly established the factual circumstances of the commission of a criminal offense, gave an incorrect legal assessment of the actions of convicts R. and K. The convicts sold their invoices without actually performing the work. In turn, L., being a police officer, was not going to evade taxes, but imitated criminal activity. Further actions of L. As a police officer, they did not go beyond simulating preparation for tax evasion. Requests that the sentence be changed, that the actions of R. and K. be reclassified from an attempt to prepare to commit an offense, and that, on the basis of paragraph 2) of part 1 of Article 35 of the Criminal Code, the proceedings in this part be terminated due to the absence of elements of a criminal offense in their actions, as well as the application of part 2 of Article 58 of the Criminal Code be excluded. The court's conclusions on the episode of organizing and aiding and abetting actions to issue an invoice without actually performing the work are based on evidence comprehensively, fully and objectively examined at the court session. The actions of R. under part 3 of Article 24, part 3 of Article 28, paragraph 2) of part 2 of Article 216 of the Criminal Code and K. – under part 3 of Article 24, part 5 of Article 28, paragraph 2) of part 2 of Article 216 of the Criminal Code were correctly qualified by the court. At the same time, regarding the accusation of complicity in attempted tax evasion and other mandatory payments to the budget from a legal entity, the verdict is subject to cancellation on the following grounds. The court of first instance correctly established the actual circumstances of the commission of a criminal offense. However, an incorrect legal assessment of the actions of convicts R. and K. is given. According to part 3 of Article 24 of the Criminal Code, an attempted crime is an act (inaction) committed with direct intent, directly aimed at committing a crime, if the crime was not completed due to circumstances beyond the control of the person. An action directly aimed at committing a crime should be understood as the beginning or continuation of the objective side of the intended crime. No such circumstances have been established in the case. According to the verdict, R. and K. sold L. invoices without actually completing the work. In turn, L., being a police officer, did not intend to evade taxes, but imitated criminal activity. The forged documents were not used for tax evasion. According to the testimony of witness L., he imitated a crime model by posing as an employee of LLP "S." According to a fictional story, he asked to speed up and produce the documents necessary to close the expenditure part of the previously cashed funds and increase the cost part of this Partnership. The guilt of the convicts is confirmed by declassified materials of operational investigative activities: secret audio and video surveillance of R.; recordings of conversations between R. and L.; a screenshot of correspondence between them from a mobile phone; data from the inspection and extradition protocol dated February 9, 2018, according to which L. was handed over to transfer funds in the amount of 57,000 to R. tenge; a dummy of funds in the amount of 6,700,000 tenge. According to the protocol of the inspection of the scene dated February 13, 2018, forged contracts, receipts for cash receipts, invoices, and acts of completed work on the provision of services to "S" LLP were seized from the interior of a Subaru Outback car, license plate 461 NXA 05, in which the above-mentioned documents and dummy money were transferred." to the address of LLP "C" for the period from August 28, 2017 to December 26, 2017 for a total amount of 225,217,826 tenge, a dummy cash in the amount of 6,700,000 tenge. According to the conclusion of specialist No. 285, documents with the impression of the round seal of LLP "C" and the impression of the round seal of LLP "C" have identical (similarities) in a number of ways and coincide with each other: in size, font outline, arrangement of elements, dye distribution, dye color, text content.
Complicity in attempted tax evasion and other mandatory payments to the budget
It can be seen from the seizure protocol dated February 16, 2018, that the seal of LLP "S", constituent documents, and an Acer laptop, in which the accounting files of LLP "S" were found, were seized from R.. According to part 1 of Article 24 of the Criminal Code, preparation for a crime is recognized as the search for, manufacture or adaptation of means or instruments of a crime committed with direct intent, the search for accomplices in a crime, conspiracy to commit a crime or other deliberate creation of conditions for the commission of a crime, if the crime was not completed due to circumstances beyond the control of the person. In such circumstances, the actions of convicts R. and K. The preparation of invoices without actually performing the work does not constitute an attempt on a crime, but is covered by the preparation for a crime. Moreover, L. did not fulfill and was not going to fulfill the objective side of the composition of tax evasion and other mandatory payments to the budget from organizations. In this case, the actions of R. and K. should be qualified not as an attempt at tax evasion, but as preparation for it. In accordance with part 2 of Article 24 of the Criminal Code, criminal liability is imposed for preparing for a grave or especially grave crime. Considering that part 2 of Article 245 of the Criminal Code refers to a crime of moderate gravity, R. and K., on the basis of paragraph 2) of part 1 of Article 35 of the Criminal Code, are subject to exemption from criminal liability with the termination of the criminal case in this part. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court changed the verdict of the court of first instance of the courts in respect of R. and K.: the actions of R. and K. reclassified from part 3 of Article 24, part 5 of Article 28, paragraphs 1), 2) of part 2 of Article 245 of the Criminal Code to part 1 of Article 24, part 5 of Article 28, paragraphs 1), 2) of part 2 of Article 245 of the Criminal Code and on the basis of paragraph 2) of part 1 of Article 35 of the Criminal Code, the proceedings were terminated due to the absence of elements of a criminal offense in their actions; the application of part 2 of Article 58 of the Criminal Code was canceled; it was decided to consider R. convicted under part 3 of Article 24, part 3 of Article 28, paragraph 2) of part 2 of Article 216 of the Criminal Code to 1 year 7 months of restriction of freedom; K. according to part 3 of Article 24, part 5 of Article 28, paragraph 2) of part 2 of Article 216 of the Criminal Code to 1 year and 6 months of restriction of freedom. The rest of the verdict remains unchanged. The protest of the Acting Prosecutor General of the Republic of Kazakhstan is satisfied.
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