Limitation periods in the practice of applying substantive law

 

Tax legislation has its own industry limitation period, which is linked to the tax liability. The essence of the tax liability is disclosed in the Tax Code.

In accordance with paragraph 2 of Article 31 of the Tax Code, in fulfillment of a tax obligation, a taxpayer performs the following actions::

1) gets registered with the tax authority (for example, as a VAT payer);

2) keeps records of taxable objects and (or) objects related to taxation (for example, taxes on land, property, transport);

3) calculates, based on the objects of taxation and (or) objects related to taxation, the tax base and tax rates, the amounts of taxes and payments payable to the budget, as well as advance and current payments on them in accordance with the Special Part of the Tax Code;

4) draws up and submits, with the exception of tax registers, tax forms and other forms established by the Tax Code to tax authorities in accordance with the established procedure.;

5) pays the calculated and accrued amounts of taxes and payments to the budget, advance and current payments on taxes and payments to the budget in accordance with the Special Part of the Tax Code.

According to paragraph 1 of Article 48 of the Tax Code, the limitation period for a tax obligation and claim is the period of time during which:

the tax authority has the right to calculate, calculate or revise the calculated, accrued amount of taxes and payments to the budget;

A taxpayer (tax agent) is obliged to submit tax reports, has the right to make changes and additions to tax reports, and revoke tax reports.,

the taxpayer (tax agent) has the right to demand a set-off and (or) refund of taxes and payments to the budget, penalties.

 

Thus, the Tax Code limits the range of issues to which the statute of limitations applies.

For example, an individual filed a lawsuit to declare illegal the actions of issuing a notification and a tax order, to declare illegal the notification and tax order in respect of the debt of the specified person, which developed from 2009 to 2014.

The notification of tax arrears was formed in 2020, and the collection order was issued in 2021. The plaintiff believed that the tax authority had no right to take measures to collect debts due to the expiration of the statute of limitations.

The Board of the Supreme Court, in resolution 6001-22-00-6ap/379 of June 2, 2022, outlined the following conclusions.

According to paragraph 1 of Article 478 of the Tax Code of December 10, 2008 No. 99-IV (hereinafter – NC 2008), individuals who have received a land plot for temporary paid land use (lease) are fee payers. So, the plaintiff is the payer of this obligation.

In accordance with paragraph 1 of Article 481 of the Tax Code of 2008, the amount of the fee is calculated on the basis of the concluded contract. According to paragraph 6 of the same article, the plaintiff, not being an individual entrepreneur, must pay the amount of the fee no later than February 25 for the reporting period.

At the same time, in accordance with paragraph 1 of Article 483 of the Tax Code of 2008, such individuals do not submit tax reports (calculation of current payments) to the tax authorities for the purposes of calculating fees.

The fee is calculated by the tax authority independently on the basis of data from the State Institution "Department of Land Relations of the city of Kokshetau". As can be seen from the plaintiff's absolute personal account under the code 105 315 "Payment for the use of land plots", the tax authority charged monthly fees based on the registers for accrual from 2009 to 2021.

Thus, in fact, the plaintiff's obligation was only to make payments based on the contract. The specified fee had to be read off by the information systems of the tax authority against accrual on the personal account.

According to the plaintiff's absolute personal account, the tax was calculated in the period from 2009 to 2014, that is, within the limitation period. At the same time, the plaintiff has no overdue obligation to submit a payment calculation.

SKAD notes that Article 48 of the 2017 Tax Code does not limit the tax authority to a time frame for collecting arrears (the amount of payments and penalties).

Thus, the judicial board concludes that the tax authority, having calculated and credited the fee to the plaintiff's personal account in a timely manner, was not limited in the right to demand payment of the debt. It follows from the above that the statute of limitations does not apply to the collection of arrears.

It should be noted that if the tax had not been calculated by the tax authority or the taxpayer in a timely manner (depending on who was supposed to make the calculation), then by virtue of the established limitation periods in 2020 for 2009-2014, it would be a violation of the provisions of Article 48 of the 2017 Tax Code.

Another example was presented at a later date in the Value added tax case No. 6001-22-00-6ap/1103 dated October 20, 2022. The notice was posted here in 2019, when the statute of limitations was 5 years. As of January 1, 2020, the statute of limitations has been reduced to 3 years. Accordingly, the tax authority managed to issue a timely notification. However, the decision on this notification regarding its recognition as unfulfilled was made only 3 years later, that is, in 2021. This was one of the grounds for declaring the decision illegal.

In general, the issue of missing the deadline is often raised by individual plaintiffs in a dispute over transport tax (No. 6001-22-00–6ap/633 dated October 18, 2022, No. 6001-22-00-6ap/1107) and property appreciation tax.

 

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