Judicial practice of collecting state fees
The state duty, in accordance with Article 532 of the Tax Code, is a mandatory payment levied for the commission of legally significant actions and (or) the issuance of documents by authorized state bodies or officials. The state fee is levied on statements of claim filed with the court, statements of special claim proceedings, statements (complaints) in cases of special proceedings, applications for a court order, applications for the issuance of a duplicate writ of execution, applications for the issuance of writ of execution for the enforcement of decisions of arbitration (arbitration) courts and foreign courts, applications for the reissue of copies judicial acts, writ of execution and other documents listed in paragraph 1 of Article 534 of the Tax Code. Based on the obligations of everyone provided for in article 35 of the Constitution of the Republic of Kazakhstan to pay legally established taxes and fees, the requirements established by the legislator when applying to the court, including those related to the payment of state fees, are mandatory for citizens and organizations and do not violate their right to access justice. The state fee is the only and sufficient payment for the commission of legally significant actions by a state body, in this case, the consideration of a case (application) of a citizen or organization. Payment of the state fee to the budget must be confirmed by payment or cash documents, and when payments are made via ATMs, electronic terminals, remote communication channels and the e–government payment gateway, they must be confirmed by checks and receipts on paper or in electronic form.
Judicial practice of collecting state fees
The rates of the State duty to be levied in civil proceedings are established by Article 535 of the Tax Code. The state duty is calculated based on: the amount of the calculation index established in the Republic of Kazakhstan on the day of payment of the state duty 2) as a percentage of the claim price. In accordance with subparagraph 1) According to paragraph 1 of Article 535 of the Tax Code, state duty is charged on property claims for individuals as a percentage of the claim price, in the amount of 1, and for legal entities – 3. For applications for a court order, state duty is charged in the amount of 50 of the state duty rates specified in subparagraph 1) of paragraph 1 of Article 535 of the Tax Code. According to the requirements of Articles 149, 150 of the CPC, a judge, upon receipt of an application, is required to verify the availability of a proper document confirming payment of the state fee. As the generalization showed, at present, due to the fact that the possibility of leaving a statement of claim without motion is not provided for by the new CPC, there is a certain practice of accepting a statement of claim in terms of non-payment and underpayment of state duty. Thus, based on the requirements of paragraph 3) of part 1 of Article 152 of the CPC, according to which non-payment of the state fee is not an unconditional basis for the return of the statement of claim, since this defect can be corrected during the preparation of the case for trial, most courts do not return statements of claim for which the state fee has not been paid or has not been paid. During the preparation of the case for trial, the courts provide an opportunity for the applicant to eliminate this shortcoming, namely, by a separate court ruling or orally set a time limit within which they oblige the plaintiff to pay or supplement the state fee. If this shortcoming is not eliminated, the judges, applying by analogy paragraph 11) of Article 279 of the CPC, leave the statement of claim without consideration (since at this stage the statement of claim has been accepted for court proceedings and a civil case has been initiated against it). Some courts, in case of underpayment of the state fee, charge the state fee from the losing party when making a decision.
If there is such a provision of the law (paragraph 3) of part 1 of Article 152 of the CPC), which provides for the possibility to correct the shortcomings of the statement of claim during the preparation of the case for trial, in order to ensure uniformity of judicial practice (and also in order not to "spoil" the parties by the fact that they can apply to court without paying a state fee), there is a need to explicitly provide in paragraph 7 of the NP an explanation that in case of non-payment of the state fee, the statement of claim is subject to refund. Previously, the current CPC prescribed that in case of non-payment of the state fee, the court ruling should leave the statement of claim without movement. However, since it is currently impossible to leave a statement of claim without determining the price of the claim, without establishing the market value of the property and without paying a state fee of 1% for individuals and 3% for legal entities, it is necessary to return claims with these shortcomings. Established judicial practice shows that in order to implement the constitutional principle of everyone's right to judicial protection of their rights and freedoms, courts accept claims regardless of whether the state fee has been paid in full or not, therefore it is necessary to consolidate in the NP the provision prohibiting the acceptance of claims without payment or without additional payment of the state fee. An analysis of the cases received for summarizing showed that in most cases, judges at the stage of accepting an application correctly determine the nature of the disputed legal relationship and the claims made, as well as the norm of tax legislation according to which the state fee is payable. If the specified circumstance is ignored at the stage of initiation of a civil case, this shortcoming is eliminated when resolving the dispute on the merits by charging a state fee to the appropriate person.; overpaid state duty is refunded by the courts in accordance with the requirements of tax legislation. At the same time, the generalization showed that the courts, when accepting a statement of claim, do not always check the correctness of payment of the state fee. Thus, the Aktobe city court accepted the claim of B. to S. and T. for the recognition of the contract of sale of a car as invalid. The amount of the claim is 7,500,000 tenge. The plaintiff also paid a state fee in the amount of 1,060 tenge, as for a non-property claim. In another civil case, according to the claim of R., M. to JSC and others on the recognition of the car purchase and sale agreement as invalid, the plaintiffs paid the state duty in the amount of 1,135 tenge, as from non-property claims. The statement of claim was accepted for production by the District court of Kazybekbiysky district Court No. 2 of the city of Karaganda. By the decision of the same court dated May 31, 2017, the plaintiffs' claim was denied and the state duty was collected from them (based on the cost of the car in the amount of 2,170,000 tenge) in the amount of 9,555 tenge. Whereas the statement of claim was subject to refund due to incomplete payment of the state fee. By virtue of subparagraph 3) of part 1 of Article 152 of the CPC, the judge returns the statement of claim if the statement of claim does not comply with the requirements of Article 148, subparagraph 1), 2), 3) and 5) of part 1 of Article 149 of this Code and it is established that it is impossible to eliminate deficiencies at the stage of preparing the case for trial. For example, by the definition of the Council of Economic Cooperation of the Akmola region dated May 15, 2017, the statement of claim of the shareholders of OJSC M. et al. against R. The annulment of the deposit agreement was returned in accordance with subparagraph 3) of part 1 of Article 104 of the CPC due to the fact that a receipt for payment of the state fee by each of the plaintiffs was not attached to the claim. According to paragraph 4 of the NP, payers of the state fee in civil proceedings, in accordance with the provision of Article 533 of the Tax Code, include individuals and legal entities: acting as plaintiffs, applicants at the initial filing of a claim, application or complaint. In the case of payment of the state fee by another person not named above, the payment order (receipt) must indicate for which action and for whom the payer made the payment. T. appealed to the Bulandyn district Court of the Akmola region with a statement of claim for recovery of the loan amount, with a receipt for payment of the state fee attached to the application., paid to.., who is not included in the circle of persons specified in paragraph 4 of the NP, the receipts do not contain information for whom the payment was made. Therefore, the court ruling returned the statement of claim.
Judicial practice of collecting state fees
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