Making deliberately distorted income data in declarations, concealing other taxable items, and evading taxes

By the verdict of the District Court No. 2 of the Esil district of Astana dated February 18, 2019: Sh., who had no previous criminal record, was sentenced under paragraph 2) of part 2 of Article 245 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 2 years of restriction of liberty with deprivation of the right to hold managerial positions in organizations related to the provision of tax reports, for a period of for 3 years; R., who had no previous criminal record, was sentenced under part 5 of Article 28, paragraph 2) of part 2 of Article 245 of the Criminal Code to 1 year and 6 months in prison with the deprivation of the right to hold managerial positions in organizations related to the provision of tax reports for a period of 3 years; H., who had no previous criminal record, was sentenced under part 5 of Article 28, paragraph 2) of part 2 of Article 245 of the Criminal Code to 1 year and 6 months of imprisonment with deprivation of the right to hold managerial positions in organizations related to the provision of tax reports for a period of 3 years; K., who had no previous criminal record, was found not guilty under part 5 of Article 28, paragraph 2) of part 2 of Article 245 of the Criminal Code and acquitted for lack of corpus delicti. By the verdict of the court, Sh., R. and Kh. were found guilty of the fact that Sh., being the head of VD LLP, in a group of persons in prior agreement with the head of R LLP, R. and the head of DAN LLP, H., with their assistance, by entering deliberately distorted income data into declarations, concealing other objects He evaded taxes in the amount of 130,945,640 tenge, which refers to a large amount of damage. He was acquitted on charges of complicity in large-scale tax evasion in a group of persons by prior agreement. By the resolution of the Board of Criminal Cases of the Court of the city of Nur-Sultan dated April 17, 2019, the verdict of the court was changed, the punishment imposed by Sh. and H. cancelled, on the basis of paragraph 3) of part 1 of Article 71 of the Criminal Code, these persons were released from criminal liability due to the expiration of the statute of limitations. The rest of the verdict remains unchanged. The appellate instance issued a private decision, which brought to the attention of the prosecutor of the city of Nur-Sultan about the fact of improper application of the norms of the criminal law by the public prosecutor, which led to an erroneous retraining of the actions of the convicted, as well as the lack of proper supervision of the cases, the proceedings on which were interrupted.

Making deliberately distorted income data in declarations, concealing other taxable items, and evading taxes

In the protest, the Prosecutor General of the Republic of Kazakhstan asks to cancel the verdict of the court, the ruling, the private ruling of the court of appeal and send the case for a new appeal hearing. Indicates that the criminal law was incorrectly applied by the court of first instance. The time of the crime in the case is March 2012. Accordingly, based on the monthly calculation index (hereinafter – MCI) for 2012 (1,618 tenge), a particularly large amount of damage is 121,350,000 tenge. K.'s actions were correctly qualified by the pre-trial investigation body. He cashed out the funds received from VD LLP through DAN LLP and transferred them to Sh. The courts gave an improper assessment of K.'s testimony. in court. In the case, it was established that Sh., being the co-founder and director of VD S LLP, whose main activity was the provision of engineering services in the field of architectural, urban planning and construction activities, used him as a subcontractor in order to evade taxes to the budget by entering deliberately distorted income data into declarations and concealing other taxable items. and the supplier of goods to "R" LLP, registered to R., who works at "VD" LLP, thereby overestimated the cost part of "VD" LLP. As of October 27, 2011, VD LLP owed 458,309,742 tenge to R LLP for goods delivered and work performed. Knowing that in case of non-fulfillment of the obligation to LLP "R", the specified debt would be his income, Sh. in order to conceal his criminal activities and mislead tax officials, having entered into a preliminary agreement with R. and H., he drew up a tripartite act of settlement No. 11 dated October 28, 2011 in the amount of 458,309,742 tenge between "VD" LLP, "R" LLP and "DAN" LLP. and H., acting in a group of persons by prior agreement, knowing for certain that DAN LLP is neither a supplier nor a buyer of R LLP, they have not concluded an agreement confirming the assignment of the right to claim the debt, signed an act of offsetting, thereby assisting S. tax evasion in the budget. Thus, in the period 2013-2014, in violation of Article 89 of the Code "On Taxes and Other Mandatory Payments to the Budget (Tax Code)" dated December 10, 2008 (hereinafter referred to as the Tax Code), in a group of persons in prior agreement with R. and Kh., with their assistance, by making deliberately distorted data in the declarations of VD LLP, evaded taxes in the amount of 130,945,635 tenge from income generated from non-repayment of debts to R LLP by concealing tax objects. The body of the pre-trial investigation of the actions of S. qualified under part 3 of Article 245 of the Criminal Code, the actions of R., H. – under part 5 of Article 28, part 3 of Article 245 of the Criminal Code. In addition, according to the indictment, K., being the head and sole founder of VN LLP, cashed out the funds received from tax evasion of VD LLP through DEN LLP and transferred them to Sh., thereby contributing to tax evasion in a group of persons by prior agreement, on a particularly large scale the size. These actions of his are qualified under part 5 of Article 28, part 3 of Article 245 of the Criminal Code. In the main trial, the prosecutor involved in the case presented to the court a new formulation of the charge, according to which the actions of Sh. they are subject to reclassification to paragraph 2) of part 2 of Article 245 of the Criminal Code, the actions of R., H. and K. – to part 5 of Article 28, paragraph 2) of part 2 of Article 245 of the Criminal Code. In justification, he pointed out that due to the enactment of the law improving the situation of the accused, which is retroactive, the amount of damage of 130,945,640 tenge is not particularly large. The protest states that the end time for tax evasion is March 2012, when VD LLP submitted tax returns without reflecting the amount of 458,309,742 tenge as income.

Making deliberately distorted income data in declarations, concealing other taxable items, and evading taxes

Meanwhile, the moment of the end of the crime provided for in Article 245 of the Criminal Code is the actual non-payment of taxes within the time limit established by tax legislation. Since the Tax Code provides for different deadlines for submitting tax returns and deadlines for payment for different types of taxes, the moment of the end of the crime should be considered non-payment of the tax due last in time. According to Act No. 1909 of the documentary tax audit dated April 8, 2016 of VD S LLP, taxes in the amount of 130,945,635 tenge were accrued for the tax periods of 2013-2014. Including corporate income tax (hereinafter – CIT) in the amount of KZT 6,714,286 for 2013 and value added tax (hereinafter – VAT) in the amount of KZT 4,028,571 for the 4th quarter of 2013, CIT in the amount of KZT 75,126,740 for 2014 and for 1, 2, 3, 2014 quarters of VAT in the amount of 45,076,038 tenge (7 312 573+14 008 748+23 754 717). Paragraph 3 of Article 142 of the Tax Code establishes that a taxpayer makes a payment according to the CPI based on the results of the tax period no later than ten calendar days after the deadline set for submitting the declaration. In accordance with Article 148, paragraph 1 of Article 149 of the Tax Code, a CIT payer submits a CIT declaration to the tax authority no later than March 31 of the year following the reporting tax period, which is the calendar year from January 1 to December 31. Paragraph 1 of Article 271 of the Tax Code obliges the VAT payer to pay the tax for each tax period no later than the 25th day of the second month following the reporting tax period. It follows from Article 269, paragraph 1 of Article 270 of the Tax Code that the VAT payer is obliged to submit a VAT declaration to the tax authority for each tax period no later than the 15th day of the second month following the reporting tax period (calendar quarter). Thus, VD Stroy-Engineering LLP was obliged to pay VAT for 2013 and for 2014 no later than April 10, 2014 and April 10, 2015, respectively, VAT for the 4th quarter of 2013, 1st, 2nd and 3rd quarters of 2014, respectively, no later than February 25, May 25, 25 August and November 25, 2014. In this regard, 2015 is recognized as the date of the end of the crime in this case, since, as indicated above, the taxpayer was obliged to pay the CPN for 2014 no later than April 10, 2015. According to paragraph 3) of Article 3 of the Criminal Code, as amended by the Law of the Republic of Kazakhstan dated January 21, 2019 "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on strengthening the protection of property rights, arbitration, optimizing the judicial burden and further humanizing criminal legislation", a particularly large amount under Article 245 of the Criminal Code is the amount not received by the budget. payments exceeding 75,000 MCI. By virtue of part 1 of Article 6 of the Criminal Code, this Law is retroactive. Taking into account the MCI for 2015 in the amount of 1,982 tenge, the amount of 148,650,000 tenge is particularly large for this crime (1 982*75 000 ). Thus, the sum is not

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