Liquidation of legal entities on the grounds of invalidation of the registration (re-registration) of a legal entity

On the basis of subparagraph 10) of paragraph 1 of Article 19 of the Tax Code, state revenue authorities have the right to file lawsuits with the courts for the liquidation of a legal entity on the grounds provided for in subparagraphs 1), 2), 3) and 4) of paragraph 2 of Article 49 of the Civil Code, as well as other lawsuits in accordance with the competence and objectives established by the legislation of the Republic of Kazakhstan. In accordance with paragraph 2 of Article 49 of the Civil Code, by a court decision, a legal entity may be liquidated if the registration of a legal entity is declared invalid due to violations of the law committed during its creation, which are irreversible. According to paragraph 1 of Article 158 of the Civil Code, a transaction the content of which does not comply with the requirements of the law, as well as a transaction made for a purpose knowingly contrary to the principles of law and order, is contested and may be declared invalid by a court, unless otherwise provided by this Code and other legislative acts of the Republic of Kazakhstan. By virtue of paragraph 1 of Article 2 of the Entrepreneurial Code, entrepreneurship is an independent, initiative activity of citizens, oralmans and legal entities aimed at generating net income through the use of property, production, sale of goods, performance of works, provision of services, based on the right of private ownership (private entrepreneurship) or on the right of economic management or operational management of a state enterprise. (state-owned enterprise). In accordance with paragraph 1 of Article 39 of the Civil Code, as well as paragraph 1 of Article 5 of the Law "On Limited and Additional Liability Partnerships", the location of a legal entity is recognized as the location of its permanent body. According to article 14 of the Law "On State Registration of Legal Entities and Registration of Branches and Representative Offices" (hereinafter referred to as the Law), a contract for the alienation (assignment) of the right of a retiring participant in a business partnership to a share in the property (authorized capital) of the partnership or a part thereof, to which an individual is a party, is subject to notarization.

Liquidation of legal entities on the grounds of invalidation of the registration (re-registration) of a legal entity

According to the rules of Article 14-2 of the Law, changes and additions to the registration data of a legal entity are made when the location of the legal entity is changed, when the location of the legal entity is changed, a document confirming the location is additionally attached to the notification, if the owner of the premises is an individual, a notarized consent of the individual is provided, such registration is notifying nature with the entry of information into the State database of legal entities (GBD Law). When considering cases, the courts need to find out whether such transactions have been challenged in court, whether these transactions are disputed or void by virtue of a direct indication of the law. Article 16 of the Law stipulates that a legal entity is considered to have ceased operations after entering information about it into the National Register of Business Identification Numbers. The activities of legal entities and their branches (representative offices) are subject to compulsory termination provided that: if they have not applied to the registration authority in accordance with the procedure established by the Government of the Republic of Kazakhstan to generate a business identification number; they are not registered with the state revenue authorities as taxpayers. Compulsory termination of activities is carried out in court upon the application of the body carrying out the state registration of legal entities. Exclusion from the National Register of Business identification numbers of Legal Entities is carried out on the basis of a court decision on compulsory liquidation, which has entered into force. In accordance with paragraphs 10, 11, 12, 13 of the NP "On Judicial Practice of applying Tax Legislation" by the courts, legal entities whose registration (re-registration) is being challenged must be involved in the case as defendants. Since these disputes are considered according to the rules of the claim procedure, the judicial authority must necessarily be involved in the case as a co-respondent. When challenging the registration of a legal entity, its founders (participants) must be involved in the case. In case of challenging only the re-registration of a legal entity, the previous participant(s) should also be involved in the case. Invalidation of the re-registration and restoration of the previous registration data of a legal entity entails obligations for the previous participant(s) related to its activities, including tax obligations. The fact of registration (re-registration) of a legal entity with an individual who is not related to its creation (re-registration) is the basis for invalidating the registration (re-registration) of a legal entity. When stating in the statement of claim that one of the grounds for invalidating the registration (re–registration) of a legal entity is the absence of a legal entity at the place of registration, the courts should take into account that in such cases it is important to investigate and resolve issues related to the reliability of the address of the legal entity. If there is at least one of the circumstances indicating the deliberate provision of false information about the address of a legal entity during registration (re-registration), which excludes the possibility of any connection with this legal entity, as well as the exercise of state control and supervision, the claim may be satisfied. The absence of a final decision on a criminal case in the field of economic activity cannot be an unconditional basis for rejecting a claim for invalidation of the registration (re-registration) of a legal entity. It should be noted that a stable practice has developed in cases of this category. The basis for filing these claims are appeals to the Department of Pre-trial Investigation of the State Duma of the Ministry of Finance of the Republic of Kazakhstan of individuals (titular managers and founders of partnerships), from which it follows that they did not aim to engage in entrepreneurial activity, seals, constituent documents, crypto keys, financial management documents of the LLP were not transferred to them, any material, physical, There was no financial or technical opportunity to engage in entrepreneurial activity. 

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