DVGA audit report is not subject to appeal
No.6001-23-00-6ap/105 dated 06/01/2023
Plaintiff: T.A.
Respondent: Russian State Institution "Department of Internal State Audit"
The subject of the dispute: the recognition of the unlawful and cancellation of the audit report in part
Review of the plaintiff's cassation appeal
PLOT:
The audit report contested by the plaintiff states that the State Institution "Department of Physical Culture and Sports" allowed the unjustified expenditure of funds to coach T.A. in the amount of 1.6 million tenge.
Judicial acts:
1st instance: the claim is returned.
Appeal: the definition remains unchanged.
Cassation: judicial acts are upheld.
Conclusions: According to subparagraph 3) of the first part of Article 4 of the APP, a burdensome administrative act is an act that refuses to implement, restricts, terminates the right of a participant in an administrative procedure or imposes an obligation on him, as well as otherwise worsens his situation.
The Judicial Board recognized the conclusions of the courts on the return of the claim as unfounded, since the audit report is not an administrative act. The burdensome act is the prescription, that is, the final document imposing the obligation.
The judicial board also noted the correctness of the instructions of the courts, which in the case of T.A.'s presentation of a property claim, his arguments should be evaluated in the framework of the specified dispute.
Customs disputes
The deadline for submitting the request has not been missed.
No. 6001-22-00-6ap/2400 dated 05/16/2023
Plaintiff: JSC "A"
Respondent: Russian State Institution "Department of State Revenue of the State Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan"Interested party: RSU "State Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan"
The subject of the dispute: on challenging the actions to issue claims No.7-25 dated 12/07/2021 for the payment of the amounts of customs duties, taxes, special, anti-dumping, countervailing duties, penalties, interest
Review of the defendant's cassation complaint
PLOT:
The Department sent controversial claims to the Company in order to recover customs duties and taxes based on insurance contracts, as the declarants did not pay them on time.In the period from March to June 2021, the declarants imported goods, garments and accessories, knitted or crocheted, and textile products from the Republic of Uzbekistan to the Republic of Kazakhstan.
The Company (the Insurer) and interested parties LLP "G", IP "A" and IP "T" (Policyholders) have concluded insurance contracts to ensure the fulfillment of the obligation to pay customs duties and taxes upon completion of customs operations.
Under the terms of the contracts, the Policyholder has undertaken to pay an insurance premium, and the Insurer has undertaken to make an insurance payment to the Beneficiary in the amount and on the terms stipulated in the Contract, upon the occurrence of an insured event.
According to clause 3.1 of the Agreements, the beneficiary is the Department.
According to clause 6.6 of the Contracts, the Beneficiary is obliged, in case the Policyholder fulfills the obligation to pay customs duties, taxes, special, anti-dumping, countervailing duties, to send to the Insurer a claim for payment of the amounts of customs duties, taxes, penalties, and interest due within 5 working days after the expiration of the obligation to pay customs duties, taxes, special, anti-dumping, and countervailing duties. duties.According to clause 7.1 of the Agreements, The occurrence of an insured event is established on the basis of a claim for payment of the amounts due, sent by the Beneficiary in writing.
The SRC, by its decisions to amend the information declared in the declaration of goods, has made changes to the cost of imported goods and customs duties, in the direction of increase.
The declarants appealed these decisions to the court and by the decisions of the SMAS dated 17.03.2022 and 05.03.2022, they were declared illegal in terms of individual goods.
There is also a final decision of the SMAS dated 02.03.2022, which satisfied the claims of the Declarant IP "T". The court's decision declared illegal, cancelled the decisions of the Committee on amendments (additions) to the information declared in the declarations (in the amount of 13) for the goods:
from 21, 22, 23, 25, 29, 30 June 2021,
dated July 1, 2021;
dated October 18, 22, 25, 2021;
dated November 3, 2021;
Judicial acts:
1st instance: the claim is satisfied.
Appeal: the decision remains unchanged.
Cassation: judicial acts are upheld.
Conclusions:
The following violations were found during the consideration of this case:
the declarant determined the customs value using the first method and submitted the relevant documents, but the customs authority did not prove that the submitted documents did not contain quantifiable, sufficient information about the transaction price, that is, it did not prove the impossibility of applying the main method - at the transaction price of imported goods;
The customs authority violated the requirement of consistency in the application of methods for determining customs value, without justifying the impossibility of applying the previous methods when choosing a specific method.;
When determining the customs value by the reserve method, paragraph 5 of Article 45 of the Customs Code is violated, which states that the customs value of imported goods in accordance with this Article should not be determined on the basis of a system providing for the adoption of the higher of the two alternative values for customs purposes.
According to Articles 817,820 of the Civil Code, an insured event is an event, upon the occurrence of which the insurance contract provides for the insurance payment. Insurance payment is the amount of money paid by the insurer to the policyholder (beneficiary) within the insured sum upon the occurrence of an insured event.
In resolving the dispute and satisfying the stated claims, the local courts, guided by paragraph 1 of Article 102 of the Customs Code, lawfully proceeded from the fact that the actions of the Department for sending claims No. 7-17 were illegal due to the non-occurrence of an insured event.It was established that on the day the defendant sent the disputed claims, the declarants of LLP "G", IP "A" filed lawsuits in court to appeal the decisions of the Committee on amendments (additions) to the declarations stated in the declaration of goods.
The claims of the applicants were partially satisfied with the effective decisions of the SMAS dated March 5 and 17, 2022. The decisions of the Committee on amendments (additions) to the information provided in the declaration of goods regarding individual goods were declared illegal and canceled.
The above indicates that the amounts of customs duties indicated in the contested claims do not comply with the legitimate decisions of the Committee and are subject to adjustment, taking into account the conclusions of the judicial acts that have entered into force, when the claims are re-sent to the plaintiff within the statutory limitation period.
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