Errors in calculating the limitation period for bringing to administrative responsibility led to the cancellation of the judicial act.

By the resolution of the Deputy Head of the State Revenue Department for the Yenbekshikazakh district of the Almaty region (hereinafter referred to as the Department, the authorized state body) dated October 6, 2017, A LLP (hereinafter referred to as the Partnership) was brought to administrative responsibility under part 1 of Article 278 of the Code of Administrative Offenses of the Republic of Kazakhstan (hereinafter referred to as the Administrative Code), with the imposition of administrative penalties in in the form of a fine in the amount of 29 320 161 tenge. By the resolution of the Yenbekshikazakh District Court of the Almaty region dated November 16, 2017, the said resolution was canceled, and proceedings on an administrative offense against the Partnership were terminated due to the expiration of the statute of limitations for administrative liability. In his submission, the Chairman of the Supreme Court of the Republic of Kazakhstan proposes to review the court's decision in cassation due to a violation of uniformity in the interpretation and application of legal norms by courts. As follows from the case file, the reason for bringing the Partnership to administrative responsibility was the underestimation of the amounts of taxes and other mandatory payments in the declaration, calculation, application for the import of goods and payment of indirect taxes.

Errors in calculating the limitation period for bringing to administrative responsibility led to the cancellation of the judicial act.

Thus, according to the results of the thematic tax audit conducted on the basis of the order dated December 14, 2016 for the correctness of calculation and timely payment of corporate income tax and value-added tax by the Partnership for the period from January 1 to December 31, 2012, the Department of State Revenue for the Almaty region issued a notification on the results of the tax audit dated March 1, 2017 No. 389: The Partnership has accrued taxes and penalties in the amount of 81,551,355 tenge. A thematic tax audit in relation to the Partnership was appointed and conducted by resolution of the senior investigator of the investigative and operational group of the Economic Investigation Service of the State Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan (hereinafter referred to as the State Tax Committee of the Ministry of Finance of the Republic of Kazakhstan) dated November 1, 2016 as part of a criminal case. In this regard, the act of documentary tax audit in relation to the Partnership was sent by letter dated January 5, 2017 to the Economic Investigation Service of the Department of State Revenue in Almaty for making a procedural decision. On February 28, 2017, a resolution was received by the senior investigator of the Department of Internal Affairs of the Ministry of Finance of the Republic of Kazakhstan, issued on February 28, 2017, to terminate criminal prosecution on the basis of part 2 of Article 35 of the Criminal Procedure Code of the Republic of Kazakhstan for the absence of a criminal offense in the act provided for in Article 245 of the Criminal Code of the Republic of Kazakhstan. On March 14, 2017, the chief specialist of the Department in relation to the Partnership drew up a protocol on an administrative offense under part 1 of Article 278 of the Administrative Code.

The court, canceling the decision of the authorized state body and terminating the proceedings, reasoned that the three-month limitation period for bringing to administrative responsibility had expired from the date of receipt of the decision to terminate the criminal case in accordance with Part 6 of Article 62 of the Administrative Code. These conclusions of the court are untenable. Indeed, in accordance with part 6 of Article 62 of the Administrative Code, in the event of termination of a criminal case, if there are signs of an administrative offense in the actions of the violator, a person may be brought to administrative responsibility no later than three months from the date of receipt of the decision to terminate it. At the same time, on March 15, 2017, the director of the Partnership filed a petition with the authorized state body to postpone the consideration of administrative material due to an appeal to a higher authority, the State Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan (hereinafter referred to as the State Revenue Committee), notification of the results of the tax audit dated March 1, 2017 No. 389. On March 15, 2017, the Department, guided by In part 4 of Article 817 of the Administrative Code, he issued a ruling on extending the time limit for consideration of an administrative offense case. On June 29, 2017, the State Revenue Committee left the appealed notification of the results of the tax audit unchanged. At the same time, the Partnership was given the right to appeal the notification to the court in accordance with paragraph 3 of Article 666 of the Code of the Republic of Kazakhstan "On Taxes and other mandatory payments to the Budget." According to part 1 of Article 294 of the Civil Procedure Code of the Republic of Kazakhstan, a citizen or a legal entity has the right to file an application with the court within three months from the day they became aware of the violation of their rights, freedoms and legally protected interests. Since the Partnership was denied satisfaction of the complaint on June 29, 2017, the three-month period expires on September 29, 2017. Thus, the proceedings in the present case were extended from March 15, 2017 to September 29, 2017. At the same time, the decision on the imposition of an administrative penalty was issued on October 6, 2017, that is, on the 23rd day (taking into account that the decision on the extension was issued after 16 days + 7 days).  Under such circumstances, the Partnership is involved in the administrative 

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