On challenging the notification of the elimination of violations with an average degree of risk, identified by the results of desk control
No.6001-24-00-6ap/2014 dated February 13, 2025
Plaintiff: K LLP
Respondent: Russian State Institution "State Revenue Administration" (hereinafter referred to as the Department)
The subject of the dispute: on challenging the notification on the elimination of violations with an average degree of risk, identified by the results of desk control dated September 15, 2023
Review of the plaintiff's cassation complaint PLOT:
By the decision of the specialized interdistrict Economic Court (hereinafter referred to as the SMEC) dated June 15, 2023, the contracts concluded between LLP "K" and LLP "C" for the 3rd quarter of 2020 in the amount of turnover of 12,991,071 tenge, value added tax (VAT) - 1,558,929 tenge were declared invalid, corporate income tax - KZT 2,598,214, dated August 17, 18, 24, 25, 26 and 31, 2020.
On September 15, 2023, the Management of K LLP issued a notification on the elimination of violations, with an average degree of risk, identified by the state revenue authorities based on the results of desk control, for violations for the period from July 1 to September 30, 2020 (hereinafter referred to as the notification).
According to appendix No. 1 to the notification (protocol of identified errors), it is stated: "the offset of amounts for transactions declared invalid on the basis of a court decision that has entered into force. The amount of violation: 1,558,929 tenge".
According to appendix No. 2 to the notification, a table with a breakdown of the violation is indicated: supplier of LLP "S"; reference to the decision of the Council of Economic and Social Council of June 15, 2023 and resolution of September 4, 2023; electronic invoice numbers, the amount of the violation to be excluded from VAT offset - 1,558,929 tenge.
K LLP filed a lawsuit with the court to declare the notification illegal and cancel it, pointing out the absence of electronically signed appendices to this notification.
Judicial acts:
1st instance: the administrative claim was denied.
Appeal: the decision of the first instance is upheld.
Cassation: judicial acts are upheld.
The local courts, rejecting the claim, concluded that the contested Notices were lawful and in accordance with the requirements of Articles 94, 96 of the Tax Code, paragraphs 22 and 23 of the Regulatory Decree of the Supreme Court of the Republic of Kazakhstan No. 9 dated December 22, 2022 "On certain issues of the application of tax legislation by courts", indicating the legality of issuing the contested notice by the Office. on the basis of a judicial act declaring transactions invalid.
Conclusions: the judicial board considered that the courts had come to the correct conclusion about the legality of the contested notification, since the binding nature of the IESEC decision, which entered into force, is directly provided for in paragraph 3 of Article 76 of the Constitution of the Republic of Kazakhstan and part two of Article 21 of the CPC. The legal conclusions of this decision cannot be discussed within the framework of this administrative case.
All the arguments of the plaintiff were given a proper legal assessment by the courts, and they were the subject of a thorough investigation. The notification and its appendices contain all the necessary information and comply with the requirements for their compilation and delivery to the addressee.
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