Export Customs duty  

The plaintiff accounted for these expenses based on the Order of the Minister of National Economy of the Republic of Kazakhstan dated February 17, 2016 No. 81.

The defendant excluded this expense, since the provisions of the Law do not provide for the inclusion in the differential of expenses for the payment of tax obligations arising from the export of goods.

No official source data has been provided to the judicial board on this expense. In addition, the plaintiff explained that this expense is conditional (it can occur only under certain conditions). The plaintiff did not have it directly in the period under review. Based on these facts, the judicial board considers that this expense is not justified.

The plaintiff took into account railway expenses according to the official source of information Argus Neftetransport.

The defendant excluded these costs for supplies to Azerbaijan, as they were not actually incurred by the Partnership. In other areas, they are taken into account based on data from the Rail-Tariff information system.

The Judicial Board considers the plaintiff's arguments to be justified, since the Argus Oil Transport publication is included in the list of official sources of information on market prices, approved by Resolution of the Government of the Republic of Kazakhstan dated March 12, 2009 No. 292 "On Approval of the List of officially Recognized Sources of Information on market prices."

In particular, the applicable publication publishes monthly basic railway tariffs for the transportation of petroleum products from refineries in Kazakhstan to Russia, Azerbaijan, Georgia and other countries (indicating the destination station/port), where the amount of expenses in question is published in US dollars per ton.

The Rail-Tariff information program is a program for calculating the tariff for the transportation of goods by rail across the territories of Russia, CIS countries, Latvia, Lithuania, Estonia, Georgia, Mongolia and Poland. It belongs to the fourth order of information sources established by article 18 of the Law.

The law, while establishing the order of information sources, does not indicate the possibility of changing the order based on the accuracy of the information. Accordingly, if the data is available in an official source, the specified data should be applied.

According to subparagraph 4) of paragraph 2 of Article 19 of the Tax Code, tax authorities are obliged, within their competence, to provide explanations and comments on the occurrence, fulfillment and termination of a tax obligation. Such clarifications and comments, as well as methodological recommendations, including those of the authorized body, do not apply to regulatory legal acts. They are subject to assessment by the court, taking into account their compliance with the norms of tax legislation....

...Tax policy (a set of measures to establish new and cancel existing taxes and payments to the budget, change rates, objects of taxation and objects related to taxation, the tax base for taxes and payments to the budget) is carried out by the authorized body in the field of tax policy…

...If an international treaty ratified by the Republic of Kazakhstan establishes rules other than those contained in the Tax Code, the rules of the said treaty shall apply (paragraph 5 of Article 2 of the Tax Code). In accordance with paragraph 3 of Article 4 of the Constitution, the procedure and conditions of operation in the territory of the Republic of Kazakhstan of international treaties to which Kazakhstan is a party are determined by the legislation of the Republic.…

...If an internationally ratified treaty grants the right of taxation to the Government of the Republic of Kazakhstan, but this right is not implemented in national legislation (there is a benefit), then national legislation is subject to application.…

...When interpreting conventions for the avoidance of double taxation, the general rules of interpretation provided for by international treaties and the legislation of the Republic of Kazakhstan apply, if such rules of interpretation comply with the provisions of the Vienna Convention on the Law of Treaties, to which the Republic of Kazakhstan acceded on the basis of a Resolution of the Supreme Council.

Resolution of the issue of tax control in the event of satisfaction of a claim for liquidation (invalidation of registration (re-registration) of a legal entity is within the authority of the tax authority, and only when taking the measures provided for by tax legislation may the rights and legitimate interests of counterparties be affected, who are entitled to protect their rights and legitimate interests in challenging decisions, actions (inaction) of the tax authorities…

13. Explain to the courts that, according to subparagraph 3) of paragraph 2 of Article 49 of the Civil Code, the courts may decide to liquidate a legal entity in the absence of a legal entity at its location or actual address, as well as founders (participants) and officials, without whom the legal entity cannot function for one year.

The absence of the above-mentioned features in combination is the basis for refusing to satisfy the plaintiff's claim, since there are other ways to respond by the tax authorities.…

...The state re-registration of a legal entity is an administrative act of the registering authority, and therefore a claim for invalidation of such re-registration is subject to consideration in administrative proceedings.…

...The courts should take into account that from January 1, 2020, participants in tax legal relations, when performing actions in the current tax period in relation to previous tax periods, are not entitled to apply the expired five-year statute of limitations of the Tax Code, since such a period under the current Tax Code is three years, unless otherwise provided by the Tax Code.

The tax authorities have no right to make claims to the taxpayer and/or tax agent beyond the limitation period. At the same time, the Tax Code does not limit the calculation of penalties to the limitation periods.…

...The total limitation period, taking into account its suspension during the transfer pricing tax audit, may not exceed seven years.

When suspending an audit on these issues, the tax authority must comply with the requirements of Article 8 of the Law of the Republic of Kazakhstan dated July 5, 2008.

No. 67-IV "On transfer pricing". The limitation period may be suspended when sending a request that must comply with the following requirements:

it is addressed to the competent authority (organization) of the State;

be personalized, compiled in relation to the taxpayer being audited;

submitted on issues included in the subject of verification.

Courts should take into account that in case of non-compliance of the request with the above requirements, such a request is not considered to have been sent.…

...For tax claims for the payment of taxes and other payments to the budget, calculated, accrued by state revenue authorities and submitted to taxpayers for payment within the limitation period, the expiration of the limitation period does not terminate the tax obligation that has arisen and does not release the taxpayer from its fulfillment…

It is necessary to separate the right of the tax authority to calculate or revise the calculated, accrued amount of taxes and other mandatory payments to the budget and the taxpayer's right to demand a set-off and (or) refund of taxes and payments to the budget, penalties. Thus, when exercising a taxpayer's right to a tax refund from the budget, the tax authority does not calculate or review the calculated amount of taxes, but confirms or refuses to confirm the tax refund from the budget.

In this regard, with regard to the right of taxpayers to demand a set-off and (or) refund of taxes and payments to the budget, penalties, when calculating the limitation period, the date of receipt (registration) by the tax authority of the tax application provided for in subparagraph

1) paragraph 4 of Article 101 of the Tax Code, or the requirement to refund the amount of excess VAT provided for in subparagraph 2) paragraph 1 of Article 431 of the Tax Code, and not the date of the decision on the results of the tax audit, including notification of the results of the tax audit…

...If the state fee is paid by the plaintiff for an incorrect budget classification code or not in full, then in accordance with part four of the article

138 of the Administrative Procedural Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the APPC), the judge points out these shortcomings to the plaintiff and sets a time limit for their correction.…

...The submission by a taxpayer, within the time period established by the Tax Code, of an explanation on the violations identified not specified in paragraph 3 of Article 96 of the Tax Code and corresponding to the requirements of subparagraph 2) of paragraph 2 of Article 96 of the Tax Code, is recognized as the fulfillment of a notification on the elimination of violations identified by the tax authorities based on the results of desk control, and does not require verification of their validity. the creature.

23. By virtue of the second part of Article 135 of the CPC (claim for recognition), the plaintiff may also demand that an onerous administrative act that is no longer legally binding be declared illegal, therefore, claims challenging the executed notification based on the results of desk control are subject to court review.

A claim to challenge the notification based on the results of desk control is subject to consideration in administrative proceedings.

When considering claims challenging notices of elimination of violations provided for in subparagraphs 2) and 3) of paragraph 3 of Article 96 of the Tax Code, identified by the tax authorities based on the results of desk control, the court is obliged to evaluate and examine the evidence provided by the taxpayer to confirm the actual receipt of goods, works, services from a legal entity and (or) an individual an entrepreneur whose registration (re-registration) has been declared invalid by a court decision that has entered into force in accordance with paragraph 5 of Article 96 of the Tax Code.

In all other cases, it is sufficient for the court to determine whether the tax authority had the legally prescribed grounds for issuing a notification without verifying the validity of its claims on the merits. Otherwise, the results of future tax audits will be predetermined, including an unscheduled thematic audit on the issue of non-compliance with the notification based on the results of desk control.

The tax authority has the right to make a decision on recognizing the notification as unfulfilled, including in cases where:

The explanation is not subject to submission by the taxpayer (paragraph 3 of Article 96 of the Tax Code) and violations have not been eliminated.;

the deadline set by the Tax Code for submitting an explanation or filing a complaint against the notification based on the results of desk control has been missed and violations have not been eliminated.;

By a court decision that has entered into legal force, the taxpayer has been denied a claim for recognition of the notice issued in accordance with paragraph 3 of Article 96 of the Tax Code as illegal, and the violations have not been eliminated.

A complaint (claim) against the decision to declare a notification unfulfilled may be filed by a taxpayer within ten working days from the date of its delivery (receipt) to a higher tax authority and (or) an authorized body or court.

The taxpayer has the right to choose the body to which a complaint (claim) can be filed.…

...It should be borne in mind that, by virtue of paragraph 3 of Article 117 of the Tax Code, no penalty is charged on the amount of arrears in property tax, land tax and vehicle tax from individuals resulting from the revision by the tax authorities of the calculated amounts of taxes after the due date for the relevant tax period…

...28. At all stages of the plaintiffs' appeal against the actions and acts of the tax authorities, the court should consider the possibilities of reconciling the parties and resolving the dispute by the tax authority independently (for example, making changes to information systems in the presence of technical errors, indicating the status "executed" for desk control notifications, and so on) in cases of administrative discretion…

...In accordance with the sixth part of Article 98 of the CPC, filing a complaint to the detriment of the applicant is not allowed. Since a thematic audit in accordance with Article 186 of the Tax Code is appointed during the consideration of a taxpayer's (tax agent's) complaint, the authorized body cannot decide on the calculation of additional amounts of taxes, other mandatory payments to the budget, or penalties not accrued in the disputed notification based on the results of the audit.

The decision of a higher authority (authorized body), adopted based on the results of consideration of a complaint against notification of the results of a tax audit, cannot be the subject of judicial challenge, as it does not entail legal consequences. If the notification of the results of the tax audit remains unchanged, the said notification may be challenged in court, and if it is canceled, the notification of the results of consideration of the complaint against the notification of the audit results may be challenged.

30. According to Article 148 of the Tax Code, an order is the basis for conducting a tax audit.

As an act on the appointment of an audit, the order may be the subject of judicial challenge, since it is issued within the framework of the exercise of authority by the tax authority and entails legal consequences for the taxpayer (tax agent).…

...Unscheduled inspections may not be appointed and conducted in the absence of the grounds listed in paragraph 3 of Article 145 of the Tax Code and paragraph 3 of Article 144 of the Entrepreneurial Code. Such inspections are subject to invalidation, and the acts on their appointment are illegal and canceled on the basis of paragraph 1 and subparagraph 1) of paragraph 2 of Article 156 of the Business Code, as issued in the absence of grounds for conducting an inspection.

31. Based on the provisions of Article 159 of the Tax Code, which states that the decision based on the results of a tax audit is a notification issued by the tax authority on the results of a tax audit, in case the taxpayer (tax agent) does not agree with the accrued amounts of taxes and other mandatory payments to the budget, obligations to calculate, withhold, transfer mandatory pension contributions, mandatory professional pension contributions, calculation and payment of social contributions and (or) contributions to compulsory social health insurance and penalties, reduction of losses, If the amounts of excess VAT and (or) corporate (individual) income tax withheld from the source of payment from non-resident income are not eligible for refund, only the notification is subject to judicial review. The court verifies the legality of the calculation of the disputed amounts, taking into account the conclusions set out in the tax audit report.

A tax audit report may be challenged if the taxpayer does not agree with its conclusions, which did not entail the above consequences, but which affect his rights and obligations, including in future tax periods. An appeal against an inspection report is carried out in accordance with the procedure provided for by the legislation of the Republic of Kazakhstan for appealing actions of tax officials.

The execution of the notification of the results of the tax audit does not deprive the taxpayer of the right to appeal the executed notification in the manner and within the time limits provided for by the Tax Code.

The content of the tax audit report must comply with the requirements of paragraph 1 of Article 158 of the Tax Code. The conclusions of the tax authority on violations of the tax and other legislation of the Republic of Kazakhstan committed by a taxpayer (tax agent) are subject to presentation with reference to the legislation, substantiating the arguments and disclosing the circumstances indicating violations.

According to the third part of Article 129 of the CPC, when considering a claim to appeal the results of a tax audit, a tax authority may refer only to conclusions and justifications indicating a violation by a taxpayer of tax and other legislation, which is reflected in the tax audit report.…

...32. According to the principle of certainty of taxation, established by Article 6 of the Tax Code, taxes and payments to the budget of the Republic of Kazakhstan must be certain.

Certainty of taxation means the establishment in the tax legislation of the Republic of Kazakhstan of all the grounds and procedure for the occurrence, fulfillment and termination of a taxpayer's tax obligation, the duty of a tax agent to calculate, withhold and transfer taxes…

...The duty to prove the circumstances that served as the basis for the adoption of the disputed act by the tax authority is assigned to the tax authority…

...Taking into account the provisions of Article 128 of the CPC, the tax authority is required to submit to the court evidence of the illegality of the taxpayer's tax benefit.

35. When challenging a taxpayer's notification of the results of a tax audit or an audit report on the grounds of violations by the tax authority of the procedure and deadlines for conducting tax audits established by paragraph 2 of Chapter 18 of the Tax Code, the court should proceed from an assessment of the nature of the violations and their impact on the legality and validity of the audit results. In particular, the results of an audit conducted without an order, which, according to Article 148 of the Tax Code, is the basis for conducting a tax audit, or on the basis of an order that is subsequently recognized as illegal, are subject to recognition as illegal.

Similar consequences occur if, in violation of paragraph 1 of Article 146 of the Business Code, an order for conducting a tax audit, with the exception of a counter audit, has not been registered with the authorized body in the field of legal statistics and special accounting.

 Abbreviations

APPC – Administrative Procedural Code

CPC – Code of Civil Procedure

Tax Code – The Code "On Taxes and Other Mandatory Payments to the Budget"

DGD, Department – Department of Public Services

UGD, Management – State Revenue Department

CC – The Criminal Code

CPC – Code of Criminal Procedure

CPN – corporate income tax

VAT -- value added tax

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