Limitation period for bringing to administrative responsibility Termination of a criminal case  

By the resolution of the specialized interdistrict Administrative Court of Almaty dated May 28, 2019, the Limited Liability Partnership "Bookmaker Office "O" (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) and administratively punished with a fine of 222,229,642 tenge. By the decision of the judicial Board for Civil Cases of the Almaty City Court dated July 2, 2019, the decision of the court of first instance was canceled, the proceedings were terminated due to the expiration of the statute of limitations for administrative liability. In the submission, the Chairman of the Supreme Court proposes to review the decision of the court of appeal in cassation due to a violation of uniformity in the interpretation and application of the law by the courts. It follows from the case file that the Department of State Revenue in Almaty conducted a tax audit of the Partnership's activities, which found that the taxpayer underestimated the gambling tax in the total amount of 1,509,165,486 tenge, including: in the fourth quarter of 2013 by 290,793,468 tenge, in the first quarter of 2014 by 477,606,543 tenge, in the second quarter of 2014 by 740,765,475 tenge. In this regard, the act of the documentary tax audit dated February 25, 2016 No. 2453 was sent to the Economic Investigation Service of the Department of State Revenue for the city of Almaty (hereinafter referred to as SIR) for making a procedural decision.

Limitation period for bringing to administrative responsibility Termination of a criminal case  

By the decree of the Court of August 3, 2018, the pre-trial investigation against the employees of the Partnership was terminated for lack of evidence of a criminal offense. These circumstances served as the basis for drawing up a protocol on an administrative offense against the Partnership. It follows from the correspondence available in the case that in connection with the re-registration of the taxpayer and his application for petitions, the materials were repeatedly transferred by the state revenue authorities of the cities of Almaty and Astana to each other for decision-making. As a result, upon the fact of violations of tax legislation committed, the protocol on an administrative offense against the Partnership was drawn up on May 2, 2019. On the basis of the said protocol, by a decision of the court of first instance, the Partnership was brought to administrative responsibility under part 1 of Article 278 of the Administrative Code. The court of appeal, canceling the decision of the lower court and terminating the proceedings in the case, motivated its conclusions by the fact 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. However, this conclusion is 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, the 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, criminal proceedings could not be conducted in relation to the Partnership, since only individuals, but not legal entities, are subject to criminal liability.

Therefore, the provisions of part 6 of Article 62 of the Administrative Code could be applied only when resolving the issue of bringing officials of the Partnership to administrative responsibility. The limitation period for imposing an administrative penalty on a Partnership is regulated by the provisions of Part 2 of Article 62 of the Administrative Code, according to which a legal entity is not subject to administrative liability for committing an administrative offense in the field of taxation after five years from the date of its commission. The offenses were committed by the Partnership in the fourth quarter of 2013, as well as in the first and second quarters of 2014. Taking into account the provisions of Article 418 of the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget (Tax Code)", which was in force at the time of the commission of offenses, the five-year limitation period as of the date of drawing up the protocol on an administrative offense expired only in part of violations committed in the 4th quarter of 2013. However, for the offenses of the 1st and 2nd quarters of 2014, this period has not expired. The specialized judicial Board of the Supreme Court overturned the decision of the appellate instance in respect of the Limited Liability Partnership "Bookmaker Office "O" on termination of administrative proceedings, while upholding the decision of the court of first instance. The submission of the Chairman of the Supreme Court of the Republic of Kazakhstan is satisfied. 

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases