On some issues of application of tax legislation by courts

Normative resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2022 No. 9.

     In order to study the practice of applying the legislation on taxes and other mandatory payments to the budget by the courts and its uniform application, the plenary session of the Supreme Court of the Republic of Kazakhstan decides to give the following explanations:

Tax legislation is based on the Constitution of the Republic of Kazakhstan (hereinafter referred to as the Constitution) in accordance with paragraph 1 of Article 2 of the Code of the Republic of Kazakhstan" on taxes and other mandatory payments to the budget", consists of the tax code, as well as regulatory legal acts, the adoption of which is provided for by the tax code.

      When applying the norms of the tax legislation of the Republic of Kazakhstan, courts should take as a basis the values established by paragraph 1 of Article 1 of the Constitution, which, in accordance with paragraph 2 of Article 12 of the Constitution, determine the content and application of laws and other normative legal acts, including the tax code and the normative legal acts provided for in it.

     Such regulatory legal acts include Regulatory Legal resolutions of the Government of the Republic of Kazakhstan, regulatory legal orders of the head of the authorized body in the system of tax authorities, regulatory legal orders of the head of the Ministry of foreign affairs of the Republic of Kazakhstan, regulatory legal decisions of local authorized bodies of Regions, Cities of Republican significance and the capital on setting certain tax rates and other mandatory payments to the budget.

      In accordance with Article 10 of the tax code, regulatory legal acts regulating taxation issues are subject to mandatory official publication.

      In accordance with article 35-1 of the law of the Republic of Kazakhstan dated April 6, 2016 No. 480-V (hereinafter referred to as the law on legal acts), a necessary condition for the entry into force of the head of the authorized body, the above – mentioned normative legal orders of the Ministry of foreign affairs of the Republic of Kazakhstan and regulatory legal decisions of local authorities containing the norms of law, including those related to the rights and obligations of citizens, is their state registration with the judicial authorities.

     Courts are not entitled to apply regulatory legal acts that do not meet these conditions when considering tax disputes.

      It should be noted by the courts that regulatory legal acts adopted on tax administration issues and entered into force when the tax authority performs an action (omission) or makes a decision are subject to application in the execution or decision of these actions (omission). Regulatory legal acts in force at the time of the occurrence, execution or termination of the tax obligation of the taxpayer or the obligation of the tax agent to the tax relations in connection with the occurrence, performance or termination of the tax obligation of the taxpayer or the obligation of the tax agent are subject to application if the newly introduced normative legal acts or their norms are not retroactive in accordance with the legislative act on their entry into force. At the same time, in all cases, in accordance with paragraph 5 of Article 3 of the tax code, the provisions of the laws of the Republic of Kazakhstan establishing a new type of taxes and (or) payments to the budget, increasing the rate, establishing new duties, as well as worsening the position of the taxpayer (tax agent) are not retroactive.

      In accordance with subparagraph 4) of Paragraph 2 of Article 19 of the tax code, tax authorities, within their competence, are obliged to carry out explanations and provide explanations on the occurrence, execution and termination of a tax obligation. Such explanations and explanations, as well as methodological recommendations, including methodological recommendations of the authorized body, are not subject to regulatory legal acts. The court must evaluate them taking into account their compliance with the norms of tax legislation.

     Tax authorities carry out tax administration, which includes a system (set) of measures and methods for collecting taxes and payments to the budget, carried out by them, including based on the implementation of tax control, methods of ensuring the fulfillment of a tax obligation not fulfilled on time and the application of measures for compulsory collection of tax arrears, as well as the provision of public services and other forms of tax administration established by the tax code.

      Tax policy (a set of measures to establish a new tax and payments to the budget and cancel existing ones, change rates on taxes and payments to the budget, objects of taxation and objects related to taxation, the tax base) is carried out by the authorized body in the field of tax policy.

When applying the norms of legislation for tax purposes, it is advisable to take as a basis the priority of its norms established by paragraph 3 of Article 2 of the tax code.

      If an international treaty ratified by the Republic of Kazakhstan establishes rules other than those contained in the tax code, the rules of this Treaty shall apply (paragraph 5 of Article 2 of the tax code). In accordance with paragraph 3 of Article 4 of the Constitution, the procedure and conditions for the validity of international treaties to which Kazakhstan is a party in the territory of the Republic of Kazakhstan are determined by the legislation of the Republic.

      In accordance with the normative resolution of the Constitutional Council of the Republic of Kazakhstan dated November 5, 2009 No. 6" on the official interpretation of the norms of Article 4 of the Constitution of the Republic of Kazakhstan in force in relation to the procedure for implementing decisions of international organizations and their bodies", Kazakhstan is a participant, in particular, of international organizations that are members of the Eurasian Economic Union (EAEU) and their bodies, regulatory decisions and other regulatory legal acts of Interstate associations shall be equated to international treaties and shall have priority over the norms of the legislation of the Republic of Kazakhstan, including tax legislation, when applying international treaties.

      If a ratified international treaty grants the Government of the Republic of Kazakhstan the right to impose taxation, but the national legislation does not exercise this right (there is a benefit), then the national legislation is subject to application.

     When applying the provisions of international treaties, it should be borne in mind that the treaty applies to a special group of subjects. As a rule, in conventions on the avoidance of double taxation, such entities include residents of the contracting states.

      When interpreting the conventions on the avoidance of double taxation, the general rules of interpretation provided for by international treaties and the legislation of the Republic of Kazakhstan shall apply if such rules of interpretation comply with the provisions of the Vienna Convention on the law of international treaties to which the Republic of Kazakhstan joined on the basis of resolution of the Supreme Council of the Republic of Kazakhstan dated March 31, 1993 No. 2059-XII.

Civil legislation does not apply to tax relations, except in cases stipulated by legislative acts in accordance with paragraph 4 of Article 1 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code). In this regard, the courts should distinguish tax relations from property relations regulated by civil law.

      In accordance with paragraph 4 of Article 1 of the tax code, the concepts in the civil and other branches of the legislation of the Republic of Kazakhstan used in the tax code are used in the meanings used in the same branches of the legislation of the Republic of Kazakhstan, unless otherwise provided by the tax code. When determining the essence of the same concepts in different areas of the legislation of the Republic of Kazakhstan, the concepts used in the tax code should be used in the same sense in which they are used in the relevant area of the legislation of the Republic of Kazakhstan, referred to in the norms of the tax code.

     The concepts of the legislation of the Republic of Kazakhstan on accounting and financial reporting used in the tax code and referred to in the provisions of the tax code for the purposes of taxation and tax accounting, including the concepts of "organizations", "income", "expenses", "assets", "liabilities", are subject to application to tax relations in the sense used in the legislation of the Republic of Kazakhstan on accounting and financial reporting.

      In accordance with subparagraph 1) of Paragraph 1 of Article 116 of the tax code, a penalty is one of the ways to ensure the fulfillment of a tax obligation that has not been fulfilled within the established time frame. Therefore, it is not allowed to reduce the amount of pen alties accrued on the amount of unpaid taxes and other mandatory payments to the budget on the basis of Article 297 of the civil code, as well as to be exempted from paying pen alties on the grounds not provided for in paragraph 3 of Article 117, paragraph 7 of Article 158 of the tax code.

For the following violations identified by the tax authorities:

     on the basis of an invoice recognized as made (made) by a judicial act that has entered into legal force by a private business entity without actually performing work, without providing services, without shipment of goods;

     such grounds for deducting expenses when calculating corporate income tax (hereinafter referred to as CIT) on transactions recognized as invalid on the basis of a court decision that has entered into legal force and excluding the amount of Value Added Tax (hereinafter referred to as VAT) on purchased goods, works, services are contained in the provisions of the tax code.

     Each of the listed grounds has its own subject of proof and a group of evidence.

The commission by a private business entity that has caused major damage to a citizen, organization or state of actions to issue an invoice in order to obtain property benefits without actually performing work, rendering services, shipment of goods, entails criminal liability under Article 216 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code).

      The issuance of a false invoice by a taxpayer, in particular, a payer who is not registered for VAT, as well as a person who has not actually performed work, provided services, shipped goods, and contains the amount of VAT, in the absence of signs of a criminal offense, entails administrative liability under Article 280 of the code of administrative offenses of the Republic of Kazakhstan (hereinafter referred to as the Administrative Code).

      In accordance with the note to Article 280 of the administrative code, a false invoice is an invoice written by a person who has not actually performed work, provided services, shipped goods and includes the amount of VAT.

     By a sentence that has entered into legal force, a court decision on the termination of a criminal case, a resolution of the criminal prosecution body on the termination of a pre-trial investigation on grounds that cannot be justified, a resolution on an administrative offense case, it is recognized that the actions of a person to issue an invoice were actually committed without performing work, providing services, , the basis for deducting the amount of VAT on services provided from offsetting.

     The tax authorities are not required to submit a claim to challenge transactions, the conclusion of which is confirmed by false invoices.

     The entry of amounts for CIT and VAT into the relevant accounting is carried out by the tax authority on the basis of acts that have entered into legal force, in which it is established that actions have been taken to write a false invoice.

In accordance with subparagraph 10) of Paragraph 1 of Article 19 of the tax code, tax authorities have the right to submit to the courts claims on invalidation of transactions, 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 claims in accordance with their competence and duties established by the legislation of the Republic of Kazakhstan.

     To justify the declared claim, the Tax Authority is obliged to provide evidence testifying to the fact that the parties to the transaction did not actually fulfill the obligations and do not have an objective opportunity to fulfill them.

     The collection of evidence is carried out by the tax authority in accordance with its competence, within the framework of tax administration, including through tax control (in the form of a tax audit and other forms of state control) before filing a claim to the court for invalidating the transaction.

     When the court establishes the following circumstances:

     1) non-payment or incomplete payment of taxes, the main purpose of which is the disputed transaction;

     2) non-fulfillment of the obligation under the transaction by the counterparty himself or by the person to whom the obligation to fulfill the transaction is assigned by the contract or law, the basis for satisfying the claim for invalidating the transaction.

In cases where the tax authorities appealed to the court for the actions (inaction) of officials on sending a notification of elimination of violations provided for in subparagraphs 2) and 3) of Paragraph 3 of Article 96 of the tax code, determined by the tax authorities based on the results of on-site control in accordance with the principles of competition and equality of the parties, counterparties, on their part, have the right to prove the validity of the transaction, the taxpayer registration (re-registration) of goods from a legal entity and (or) an individual entrepreneur recognized as invalid on the basis of a court decision that has entered into legal force, has the right to prove the actual receipt of works and services.

      On the basis of the provisions of Paragraph 1 of Article 8 of the tax code, the honesty of the taxpayer (tax agent) in carrying out actions (omissions) to fulfill a tax obligation is provided.

      When considering claims for invalidating transactions by the courts, it should be borne in mind that the taxpayer has exercised his right to receive information related to the subject of reliability and honesty of counterparties.

It should be borne in mind that in the case of filing a claim for invalidating invoices, invoices drawn up in writing cannot be recognized as transactions. The invoice may be one of the proofs of the transaction.

      In this regard, acceptance of such a claim must be refused in accordance with subparagraph 1) of part one of Article 151 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Procedure Code), and if the claim is accepted for court proceedings, the proceedings on the case are subject to termination on the basis of subparagraph 1) of Article 277 of the Civil Procedure Code.

      In practice, there are also cases when there are only invoices and they are taken into account by the taxpayer when fulfilling tax obligations. In such cases, the subject of dispute should be a transaction, the conclusion of which is confirmed only by an invoice. When the tax authority correctly indicates the subject of the claim and has a sufficient set of evidence of the invalidity of the transaction, the court may recognize it as such with all the ensuing consequences.

When the liquidation procedure is completed against one of the defendants (regardless of the grounds for liquidation), the proceedings on the case on invalidating the transaction may not be terminated.

     The claim is subject to consideration on its merits if there is a second defendant who is a legal entity acting in the case or an individual entrepreneur and has established his tax obligations taking into account the conditions and rules of the disputed transaction. The declared claim against such a defendant must be resolved on its merits, regardless of the liquidation of its counterparty.

The Tax Authority has the right to submit a claim for liquidation of a legal entity to the courts on the basis of invalidating the registration of a legal entity in connection with the admission of violations of laws of an irreparable nature during the creation of a legal entity (subparagraph 2 of Paragraph 2 of Article 49 of the civil code).

     Taking into account the above, a claim must be filed with the court not on the invalidation of registration, but on the liquidation of a legal entity.

     The current legislation does not contain a complete list of grounds for invalidity of registration of a legal entity. When considering a case, the courts, based on specific circumstances significant for the case, should establish the fact of allowing a gross violation of the rule of law in the formation of a legal entity and its irremediable nature.

     Satisfaction of such claims by the court entails legal consequences both for the legal entity on which the court decision on liquidation was made, and for its counterparties. Therefore, the courts should distinguish violations committed during the creation of a legal entity from those committed by it in the implementation of its activities.

      It is necessary to take as a basis the provision of Article 1 of the law of the Republic of Kazakhstan dated April 17, 1995 No. 2198" on state registration of legal entities and accounting registration of branches and representative offices " (hereinafter referred to as the law on state registration of legal entities) that state registration of legal entities includes verification of compliance of documents submitted for state registration with the legislation of the Republic of Kazakhstan.

      At the same time, violations of the legislation must be irretrievable. For example, in the case of the need to obtain a mandatory visa, foreigners who have created a legal entity, as well as participate in the authorized capital of commercial organizations by becoming part of the participants of legal entities, do not receive a visa to enter as business immigrants; such violations are the indication in the Charter of a non-profit organization as its main purpose of making a profit or in the Charter of a limited liability company of the initial amount of the authorized capital less than the amount established by Paragraph 2 of Article 23 of the law of the Republic of Kazakhstan dated April 22, 1998 No. 220 "on companies with limited liability and additional liability".

      The absence of the formed authorized capital, the absence of permission from the authorized body to attract foreign labor in connection with the appointment of a foreign individual as the head of the legal entity being created, and failure to submit tax reports cannot be attributed to violations of the legislation specified in subparagraph 2) of Paragraph 2 of Article 49 of the civil code. These and similar violations are violations committed by a legal entity in the implementation of its activities.

Legal entities declared for liquidation (invalidation of re-registration) must be involved by the court to participate in the case as defendants.

     As co-defendants, the Registration Authority, founders (participants) of the legal entity are subject to mandatory involvement in the case.

      In case of a dispute only for the re-registration of a legal entity, it is advisable to involve the previous participant (s) in the case. Recognition of the re-registration of a legal entity as invalid and restoration of previous registration data imposes on the previous participant (s) obligations related to his activities, including tax obligations.

     In case of satisfaction of the claim for liquidation (recognition of registration (re-registration) as invalid) of a legal entity, the resolution of the issue of conducting tax control falls within the powers of the tax authority, and only when the measures provided for by tax legislation are taken, the rights and legitimate interests of counterparties may be affected, who have the right to

Registration (re - registration) of a legal entity with an indication of the head and (or) founder (participant) - an individual not related to the creation (re-registration) of a legal entity is the basis for liquidation (recognition of re-registration as invalid) of a legal entity.

At the same time, violations of the legislation must be irretrievable. For example, in the case of the need to obtain a mandatory visa, foreigners who have created a legal entity, as well as participate in the authorized capital of commercial organizations by becoming part of the participants of legal entities, do not receive a visa to enter as business immigrants; such violations are the indication in the Charter of a non-profit organization as its main purpose of making a profit or in the Charter of a limited liability company of the initial amount of the authorized capital less than the amount established by Paragraph 2 of Article 23 of the law of the Republic of Kazakhstan dated April 22, 1998 No. 220 "on companies with limited liability and additional liability".

      The absence of the formed authorized capital, the absence of permission from the authorized body to attract foreign labor in connection with the appointment of a foreign individual as the head of the legal entity being created, and failure to submit tax reports cannot be attributed to violations of the legislation specified in subparagraph 2) of Paragraph 2 of Article 49 of the civil code. These and similar violations are violations committed by a legal entity in the implementation of its activities.

Legal entities declared for liquidation (invalidation of re-registration) must be involved by the court to participate in the case as defendants.

     As co-defendants, the Registration Authority, founders (participants) of the legal entity are subject to mandatory involvement in the case.

      In case of a dispute only for the re-registration of a legal entity, it is advisable to involve the previous participant (s) in the case. Recognition of re-registration of a legal entity as invalid and restoration of previous registration data imposes on the previous participant (s) obligations related to his activities, including tax obligations.

     In case of satisfaction of the claim for liquidation (recognition of registration (re-registration) as invalid) of a legal entity, the resolution of the issue of conducting tax control falls within the powers of the tax authority, and only when the measures provided for by tax legislation are taken, the rights and legitimate interests of counterparties may be affected, who have the right to

Registration (re - registration) of a legal entity with an indication of the head and (or) founder (participant) - an individual not related to the creation (re-registration) of a legal entity is the basis for liquidation (recognition of re-registration as invalid) of a legal entity.

      In accordance with paragraph 4 of Article 26 of the Constitution, Article 10 of the Civil Code, Article 2 of the entrepreneurial code of the Republic of Kazakhstan (hereinafter referred to as the entrepreneurial code), for the implementation of individual entrepreneurship by creating a legal entity on the basis of a decision taken by the founder (participant), it is necessary to have the will of

     The grounds for liquidation (recognition of registration, re-registration as invalid) of a legal entity are the absence of the will of the person specified in the Constituent documents of a legal entity to create it and carry out entrepreneurial activity, as well as its non-carrying out entrepreneurial activity.

     In practice, a legal entity is often considered illegally created by forgery of documents, the use of lost documents, misleading the person for whom registration (re-registration) was carried out and other circumstances confirmed by explanations submitted by this person to the tax authority or court.

     Accordingly, such state registration (re-registration) was carried out in significant violation of the legislation of the Republic of Kazakhstan, they are of an indelible nature.

To explain to the courts that in accordance with subparagraph 3) of Paragraph 2 of Article 49 of the civil code, a legal entity at its location or actual address, as well as a legal entity, can make a decision on the liquidation of a legal entity in the absence of founders (participants) and officials who cannot work without them within one year.

     The absence of the above set of signs is the basis for refusing to satisfy the claim of the plaintiff, since there are other ways of responding by the tax authorities.

      In accordance with paragraphs 4, 5 of Article 70 of the tax code, if, as a result of a tax survey conducted on the basis specified in subparagraph 3) of Paragraph 2 of Article 70, the actual absence of a taxpayer at the location specified in the registration data is established, the Tax Authority sends such a taxpayer a notification confirming the location (absence) of the taxpayer.

     In case of non-fulfillment by the taxpayer of the requirement, the tax authority suspends expenditure operations on bank accounts or, in the absence of bank accounts, withdraws them from VAT registration.

     When applying with a claim for liquidation (recognition of re-registration as invalid) of a legal entity, the circumstances subject to determination by the court on the basis of the absence of a legal entity at the place of registration include: determination of the actual location of the legal entity, as well as the presence of a decision of the tax authority on non-fulfillment of the taxpayer's notification

     A claim for liquidation (recognition of re-registration as invalid) of a legal entity is also subject to satisfaction in the event of circumstances certifying the intentional transfer of incorrect information about the address of a legal entity, which excludes the possibility of contacting a legal entity during registration (re-registration), as well as tax control.

     The following circumstances may testify to the ambiguity of information about the location of a legal entity:

     the actual absence of the address specified in the documents;

     provision of a fictitious lease agreement;

     and other circumstances.

     The absence of a legal entity at the place of registration (re-registration) is evidenced by the fact that the permanent body of the legal entity is not located at the specified address, the results of the tax survey are negative, the postal correspondence is returned with a mark due to the impossibility of its delivery due to the absence of the addressee.

The absence of a final decision in a criminal case in the field of economic activity cannot be an unconditional basis for refusing to file a claim for liquidation (invalidation of re-registration) of a legal entity.

     Courts, when considering a case, should take as a basis the actual circumstances of the case and, depending on the established, make a decision, not linking their conclusions only with the presence or absence of a final decision on the criminal case.

In cases of challenging the re-registration of a legal entity in connection with a change in the composition of participants, the courts must take into account the provisions of Article 14 of the law on state registration of legal entities.

     This norm provides that for state re-registration of business partnerships, on the basis of changing the composition of participants, a document is submitted confirming the alienation (transfer) of the right of a participant leaving a business partnership to a share or part of it in the property (authorized capital) of the partnership in accordance with legislative acts of the Republic of Kazakhstan and constituent documents.

     If the party to such a contract is an individual, the contract must be notarized.

     When considering cases, the courts must determine whether such transactions are disputed in court, whether these transactions are disputed, or whether transactions are irrelevant due to the direct instructions of the law.

     State Re-registration of a legal entity is an administrative act of the registering body, in connection with which claims for invalidating such re-registration must be considered in the order of administrative proceedings.

When declaring the registration of an individual entrepreneur or legal entity invalid, as well as declaring the re-registration of a legal entity invalid on the basis of a court decision that has entered into legal force, the removal of the specified persons from the VAT registration is calculated from the date of such registration or from the date of re-registration, subparagraphs 4), 5) and subparagraphs 2), 3) of paragraph 6 of Article 85 of the tax code.

     These rules are subject to tax administration, which is carried out in accordance with the norms of the law put into effect when the tax authority makes a decision or performs an action (omission).

      In accordance with paragraph 1 of Article 400 of the tax code, in order for the recipient of goods, works, services to have the right to offset VAT amounts, the supplier must be a VAT payer.

     At the same time, the deduction from the amount of offsetting VAT is made during the tax period in which VAT is recognized in the declaration as offsetting VAT.

     CTS for such mutual settlements can be calculated based on the results of documentary tax audits, if the taxpayer has not previously independently excluded such expenses based on the results of on-camera control. At the same time, an act of tax audit is drawn up with reference to the relevant norm of tax and other legislation, indicating a detailed description of the tax violation. In addition to the court decision that has entered into legal force on the liquidation (invalidation of re-registration) of the taxpayer's counterparty, other circumstances certifying the invalidity of financial and business transactions between these persons may be indicated as the basis for calculating the amounts of the CIT.

In accordance with paragraph 1 of Article 48 of the tax code, the following:

     the Tax Authority has the right to calculate, record taxes and payments to the budget or revise their accrued, recorded amounts;

     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 limitation period for a tax obligation and a claim for a claim is recognized as the period of time during which the taxpayer (tax agent) has the right to demand taxes and payments to the budget, offsetting and (or) refund of a penalty.

      According to Article 48 of the tax code, the limitation period for filing a claim for a tax obligation and claim is three years. The following taxpayers whose statute of limitations for filing a claim is five years:

     carrying out activities in accordance with the subsurface use contract;

      large business entities classified in this category of entities in accordance with the entrepreneurial code;

      The exception is residents of the Republic of Kazakhstan who meet the terms of Chapter 30 of the tax code.

      In accordance with paragraphs 1 and 2 of Article 11 of the law on legal acts, all regulatory legal acts are applied directly, unless otherwise provided by regulatory legal acts or acts on their entry into force.

     No additional instructions are required to apply the introduced regulatory legal acts.

     Taxpayers and tax authorities, entering into tax legal relations, are obliged to comply with the legislation of the Republic of Kazakhstan, the norms of legislation that have been canceled and have ceased to be valid are not subject to application to the actions of persons committed after their cancellation.

      The courts should take into account that from January 1, 2020, participants in tax legal relations are not entitled to apply the revoked norm of the tax code on the limitation period for a five-year claim when committing actions related to previous tax periods in the current tax period, since according to the current norm of the tax code, such a period is three years, unless otherwise provided by the tax code.

     Tax authorities do not have the right to file a claim against a taxpayer and (or) a tax agent outside the limitation period for filing a claim. At the same time, the tax code does not limit the accrual of penalties with the statute of limitations of the claim.

The limitation period for a claim for the right of a tax authority to record or revise the accrued, recorded amount of taxes and other mandatory payments to the budget is calculated on the day of issuance of notifications provided for in subitems 1), 2) and 3) of Item 2 of Article 114 of the tax code.

      Paragraph 9 of Article 48 of the tax code establishes cases when the statute of limitations for filing a claim is extended. Paragraph 10 of this article provides for cases of suspension of the statute of limitations of the claim.

     When conducting a tax audit on transfer pricing issues, the total limitation period for filing a claim, taking into account its suspension, should not exceed seven years.

      When suspending the audit on these issues, the tax authority must comply with the requirements of Article 8 of the law of the Republic of Kazakhstan dated July 5, 2008 No. 67-IV "on transfer pricing". The expiration of the limitation period may be suspended upon sending a request, which is concluded in the following cases::

     addressed to the competent authority (Organization) of the state;

     created in relation to a personalized, verifiable taxpayer;

     compliance with the requirements introduced on issues included in the subject of verification.

     The courts should note that if the request does not meet the above requirements, such a request will not be considered sent.

      In accordance with paragraph 10 of Article 48 of the tax code, the period of time from the date of completion of the tax audit carried out as part of a pre-trial investigation to the end of the proceedings in a criminal case is not included in the statute of limitations for filing a claim.

      The right of the tax authorities to review the accrued, recorded amounts of taxes and other mandatory payments to the budget during the period of claim means that if the specified period is met, they have the right to conduct unscheduled tax audits provided for in paragraph 3 of Article 145 of the tax code for the previously verified period.

      Article 56 of the tax code defines the final list of grounds for termination of tax liability.

      The expiration of the statute of limitations of the claim on tax claims for the payment of taxes and other payments to the budget, calculated by the state revenue authorities, recorded in the register and submitted to taxpayers for payment within the limitation periods of the claim, does not terminate the tax obligation and does not exempt the taxpayer from its execution.

In accordance with subparagraph 3) of Paragraph 1 of Article 48 of the tax code, the time period for which the taxpayer (tax agent) has the right to demand taxes and payments to the budget, offsetting and (or) refund of penalties is recognized as the limitation period for a claim on a tax obligation and claim.

     It is necessary to allocate the right of the tax authority to record or revise the accrued, recorded amounts of taxes and other mandatory payments to the budget and the right of the taxpayer to demand offsetting and (or) refund of taxes and payments to the budget, penalties. For example, when exercising the taxpayer's right to return taxes from the budget, the tax authority does not calculate and revise the calculated amount of taxes, but confirms or refuses to confirm the return of taxes from the budget.

      In this regard, when calculating the limitation period for the claim regarding the right of taxpayers to demand offsetting and (or) refund of taxes and payments to the budget, penalties, the decision on the results of the tax audit, including not the date of issuance of the notification of the results of the tax audit, The tax application provided for in subitem 1) of Item 4 of Article 101 of the tax code or the claim for the refund of the amount of excess VAT provided for in subitem 2) of Item 1 of Article 431 of the tax code should be taken into account the date of acceptance (registration) by the tax authority.

The court applies the statute of limitations for filing a claim in accordance with paragraph 2 of Article 179 of the civil code only on the statement made by the party in the dispute before the court makes a decision.

      Courts should take into account that this provision of the law does not apply to tax disputes in connection with paragraph 4 of Article 1 of the civil code. Compliance with the statute of limitations of the claim established by tax legislation is obliged by the court to check whether there is a statement of the parties about this.

The objects, rates and procedure for obtaining state duty in courts are established by articles 609, 610, 623 of the tax code.

     State duty rates are determined in times of the monthly calculation index established by the law on the Republican budget and effective on the day of payment of the state duty or as a percentage of the claim amount, unless otherwise established by Article 610 of the tax code.

      In cases where individuals and legal entities complain about the actions (omissions) of tax authorities and challenge notifications by individual entrepreneurs, peasant or farm farms, legal entities on inspection acts, the state fee is charged in the amount established by subparagraphs 2), 3), 4) of Paragraph 1 of Article 610 of the tax code.

      Article 616 of the tax code establishes a complete list of grounds for exemption from payment of state duty in courts.

      If the plaintiff does not pay the state fee for an incorrect code of the budget classification or in full, in accordance with part four of Article 138 of the administrative procedural code of the Republic of Kazakhstan (hereinafter referred to as the letter of the letter), the judge indicates these shortcomings to the plaintiff and sets a period for their correction.

      The conditions and procedure for returning the amounts of the paid state duty are regulated by Article 108 of the tax code.

     Paragraph 4 of this norm contains a complete list of documents to be submitted to the Tax Authority (a tax application and a court decision that has entered into legal force) necessary for the return of the amount of state duty from a state institution that is a party to the case. The court does not write a writ of execution on the collection of state duty from a state institution.

In-house control is one of the forms of state control carried out by tax authorities without the procedure for assigning and conducting inspections.

      The purpose of on – camera control is to provide the taxpayer with the right to independently eliminate the identified violations by registering with the tax authorities and (or) submitting tax reports and (or) paying taxes and payments to the budget in accordance with Article 96 of the tax code.

     Violations may be detected by tax authorities on the basis of the study and analysis of tax reports submitted by the taxpayer (tax agent), data from authorized state bodies, as well as other documents and information about the taxpayer's activities.

      In accordance with paragraph 2 of Article 96 of the tax code, the execution of a notification on the elimination of violations identified by the tax authorities based on the results of on-camera control (hereinafter referred to as a notification based on the results of on-camera control) is considered:

      in case of agreement with the violations specified in the notification – elimination by the taxpayer (tax agent) of the detected violations by the methods specified in subitem 1) of Item 2 of Article 96 of the tax code;

     in case of disagreement with the violations specified in the notification – with the exception of the violations specified in paragraph 3 of Article 96 of the tax code, the taxpayer (tax agent) is recognized as commenting on the revealed violations to the tax authority that sent the notification.

     In any case, the taxpayer has the right to take one of the following actions: eliminate violations, comment or file a complaint.

The taxpayer's comment on identified violations within the time limits established by the tax code, which are not specified in paragraph 3 of Article 96 of the tax code and meet the requirements of subparagraph 2) of Paragraph 2 of Article 96 of the tax code, is recognized as the execution of a notification on the elimination of violations identified by the tax authorities based on the results of on-camera control and do not require verification of their validity on the merits.

In accordance with the second part of Article 135 of the code of criminal procedure (claim for recognition), the plaintiff may also demand the recognition of an administrative act that is no longer legally binding, encumbrating, as illegal, therefore, claims to challenge the executed notification based on the results of on-camera control are subject to court consideration.

     A claim to challenge a notification based on the results of on-camera control must be considered in the order of administrative proceedings.

      When considering claims to challenge notifications on elimination of violations provided for in subparagraphs 2) and 3) of Paragraph 3 of Article 96 of the tax code, determined by the tax authorities based on the results of on-camera control, the court is obliged to evaluate and examine the evidence submitted by the taxpayer to confirm the actual receipt of goods, works, services from this legal entity and (or) an individual entrepreneur recognized as invalid by a court decision that has entered into legal force in accordance with paragraph 5 of Article 96 of the tax code.

     In all other cases, it is enough for the court to establish whether the Tax Authority has the grounds provided for by law to issue a notification without checking the validity of its claims on the merits. Otherwise, the results of future tax audits, including unscheduled thematic audits on the issue of non-compliance with the notification based on the results of on-camera control, will be decided in advance.

     Tax authority:

      the explanation is not subject to submission by the taxpayer (paragraph 3 of Article 96 of the tax code) and violations are not eliminated;

     based on the results of on-camera control, the deadline established by the tax code for commenting or filing a complaint against the notification was missed and violations were not eliminated;

      by a court decision that has entered into legal force, in accordance with paragraph 3 of Article 96 of the tax code, the taxpayer has the right to make a decision on the recognition of the notification as unfulfilled even in cases where the claim for the recognition of the notification issued was refused and the violations were not eliminated.

     A complaint (claim) against a decision to recognize a notification as unfulfilled may be filed by a taxpayer within ten working days from the date of its submission (receipt) to a higher tax authority and (or) to an authorized body or court.

     The right to choose the body to which the claim (claim) can be filed belongs to the taxpayer.

In accordance with subparagraph 11) of Paragraph 2 of Article 19 of the tax code, in order to fulfill the duties of ensuring the full and timely receipt of taxes and other mandatory payments to the budget, tax authorities are obliged to use methods of ensuring the fulfillment of a tax obligation in accordance with the tax code and collect tax arrears in a compulsory manner. Methods of ensuring the fulfillment of a tax obligation that has not been fulfilled on time and measures for compulsory collection of tax arrears are provided for in chapters 13 and 14 of the tax code, respectively.

     In relation to an individual who is not an individual entrepreneur, a person engaged in private practice, only such a way of ensuring the fulfillment of a tax obligation that has not been fulfilled on time can be used as a penalty for the unpaid amount of tax and other mandatory payments to the budget. Measures for compulsory collection of tax arrears are not applied to it.

     These rules also apply to the tax arrears of an individual who is an individual entrepreneur, a person engaged in private practice, formed from the receipt of income not related to the implementation of this activity.

      At the same time, it should be borne in mind that in accordance with paragraph 3 of Article 117 of the tax code, pen alties are not charged on the amount of arrears in property tax, land tax and vehicle tax from individuals arising as a result of the revision by the tax authorities of the accrued amounts of taxes after the

In accordance with Articles 116, 120 of the tax code, limiting the disposal of the property of a taxpayer (tax agent) is one of the ways to ensure the fulfillment of a tax obligation that has not been fulfilled on time.

     When buying property at auction (auction), whose disposal is limited in accordance with the procedure established by law, the buyer who has fully fulfilled the obligations to pay the value of the acquired property, but does not have the opportunity to register the ownership rights to himself due to the presence of encumbrances on the basis of the decision of the Tax Authority, has the right to

     Protection of the rights of a person who has purchased property at auction (auction) is not carried out by challenging the inaction of the registering body that refused to register the rights of the buyer and imposing on him the obligation to carry out the corresponding state registration. In this case, there are no legal grounds for recognizing the inaction of the registering authority as illegal, since it registered the encumbrance for the execution of the decision of the tax authority.

     The courts should pay attention to the fact that tax legislation does not contain norms prohibiting the application of restrictions on the disposal of pledged property.

     The presence of a decision of the Tax Authority is not an obstacle to the sale of this property at auction.

      In accordance with Article 124 of the tax code, the procedure for selling property pledged by a taxpayer and (or) a third party, as well as property of a taxpayer (tax agent) whose disposal is limited, is determined by the authorized body.

Measures for compulsory collection of tax arrears are applied to a legal entity-taxpayer, a structural subdivision of a legal entity, a non-resident carrying out activities in the Republic of Kazakhstan through a permanent institution, an individual entrepreneur, persons engaged in private practice in accordance with the procedure established by paragraph 3 of Article 121 of the tax code. If, as a result of the application of the previous measure, the tax arrears were not repaid, each subsequent measure is applied. In this regard, the Tax Authority has the right to switch to the sale of property, the disposal of which is limited by the taxpayer, only after appropriate measures have been taken to collect tax arrears at the expense of money.

The provisions of the tax code provide for the possibility of extrajudicial collection of tax arrears from taxpayers in full. Therefore, claims of tax authorities for the collection of arrears and penalties for taxes and other mandatory payments to the budget are not subject to consideration and resolution from these persons in the manner of civil proceedings.

      However, if there is no or insufficient property in the territory of the Republic of Kazakhstan to pay off the tax arrears of a non-resident arising from his activities in the Republic of Kazakhstan through a permanent institution, the tax authorities have the right to apply to the court with a claim to recover the specified arrears from the non-resident. At the same time, it is necessary to take as a basis paragraph 1 of Article 4 of the agreement on the procedure for resolving disputes related to the implementation of economic activities (Kiev, March 20, 1992) and the third part of Article 30 of the APC.

At all stages of the claimants ' appeal against the actions and acts of the tax authorities, the court should consider the possibilities of reconciling the parties and independently resolving the dispute by the tax authority in cases of administrative consideration (for example, making changes to information systems in the presence of technical errors, specifying the status of "executed" for on-camera control notifications, etc.).

In accordance with paragraph 1 of Article 178 of the tax code, the competence of the authorized body is to consider out-of-court the taxpayer's (tax agent's) complaint against the notification of the results of the audit and make a decision on it. At the same time, a copy of the complaint must be sent by the taxpayer (tax agent) to the tax authority that conducted the tax audit and considered the objections of the taxpayer (tax agent) to the preliminary act of the tax audit.

      In accordance with paragraph 2 of Article 182 of the tax code, based on the results of consideration of the taxpayer's (tax agent's) complaint against the notification of the results of the audit, the authorized body makes a decision to leave the notification of the complaint unchanged, and the complaint dismissed, or to cancel all or part of the notification of the complaint.

     In case of cancellation of part of the notification made based on the results of consideration of the complaint, the tax authority that conducted the tax audit issues a new notification (notification of the results of consideration of the taxpayer's (tax agent's) complaint to the notification of the results of the audit) and sends it to the taxpayer (tax agent).

      In accordance with the sixth part of Article 98 of the code, it is not allowed to file a complaint for harm to the applicant. Since a thematic audit is appointed in accordance with Article 186 of the tax code during the consideration of a complaint of a taxpayer (tax agent), the authorized body may not make a decision to record additional amounts of taxes, other mandatory payments to the budget, penalties that were not recorded in the disputed notification based on the results of the audit.

     The decision of a higher body (authorized body) on the notification of the results of a tax audit, adopted based on the results of consideration of a complaint, cannot be the subject of a dispute in court, since it does not entail legal consequences. If the notification of the results of the tax audit remains unchanged – the specified notification, and if part of it is canceled – the notification issued based on the results of the consideration of the complaint may be challenged in court.

In accordance with Article 148 of the tax code, the instruction is the basis for conducting a tax audit.

     An order as an act on the appointment of an audit can be an independent subject of a judicial dispute, since it is issued within the framework of the exercise of power by the tax authority, entails legal consequences for the taxpayer (tax agent).

     At the same time, the taxpayer does not have the right to submit corrective tax reports in relation to the audited period during the period of appeal against the instruction.

      Unscheduled inspections may not be appointed and carried out in the absence of the grounds specified in paragraph 3 of Article 145 of the tax code and Paragraph 3 of Article 144 of the business code. If such inspections are issued in the absence of grounds for conducting inspections, they are invalid on the basis of Paragraph 1 of Article 156 and subparagraph 1) of Paragraph 2 of the business code, and acts on their appointment are considered illegal and are subject to their cancellation.

Based on the provisions of Article 159 of the tax code, the decision on the results of the tax audit is a notification of the results of the tax audit issued by the tax authority in relation to the results of the tax audit. In case of disagreement of the taxpayer (tax agent) with the recorded amounts of taxes and other mandatory payments to the budget, obligations to calculate, withhold, transfer of mandatory pension contributions, mandatory professional pension contributions, accrual and payment of social contributions and (or) contributions to compulsory social health insurance, reduction of losses, non-confirmation of the return of excess amounts of VAT withheld from the source of payment, only the notification is appealed in court. The court verifies the legality of recording the disputed amounts in the accounting, taking into account the conclusions recorded in the Tax Audit Act.

      This act may be challenged if the taxpayer does not agree with the conclusions of the Tax Audit Act that did not entail the above consequences, but will affect his rights and obligations, including in future tax periods. Appeal of the audit report is carried out in accordance with the procedure provided for by the legislation of the Republic of Kazakhstan as a complaint against the actions of officials of tax authorities.

     Execution of the notification of the results of the tax audit does not deprive the taxpayer of the right to appeal the executed notification in the manner and within the time limits provided for by the tax code.

      The content of the tax audit report must comply with the requirements of Paragraph 1 of Article 158 of the tax code. Conclusions of the tax authority on a violation of the tax and other legislation of the Republic of Kazakhstan committed by the taxpayer (tax agent) should be based on the norms of the legislation, substantiate evidence of violations and disclose and report the circumstances.

      In accordance with the third part of Article 129 of the code, when considering a claim to appeal the results of a tax audit, the tax authority may refer only to the conclusions and justifications that testify to the taxpayer's violation of tax and other legislation, recorded in the Tax Audit Act.

     Recording the amount of tax by the tax authority in accounting or adjusting income, expenses and offsetting is possible in accordance with the requirements of the tax code when the relevant facts are confirmed.

In accordance with the principle of transparency of taxation established by Article 6 of the tax code, taxes and payments to the budget of the Republic of Kazakhstan must be transparent.

     Transparency of taxation means the establishment by the tax legislation of the Republic of Kazakhstan of all grounds and procedure for the emergence, execution and termination of the tax obligation of the taxpayer, the obligation of the tax agent to calculate, withhold and transfer taxes.

The deadline for applying to the court with a claim is calculated: in case of a dispute directly in court with a notification of the results of a tax audit – from the date of its submission in accordance with the procedure established by paragraphs 1, 2, 3 of Article 115 of the tax code, and in case of a preliminary appeal to the authorized body-from the day when it became known to the taxpayer, tax agent about the decision of this body to dismiss the complaint in whole or in part, or from the date of expiration of the complaint established by the tax code, if a decision on such a complaint has not been made. If, based on the results of consideration of the complaint of a taxpayer, a tax agent, a new notification is issued, the deadline for challenging it in court is calculated from the date of delivery of a new notification in accordance with the established procedure.

     The period specified by the tax authorities when challenging the actions (omissions) of officials is calculated from the date when it became known to the taxpayer, tax agent about the violation of his rights and interests protected by law, or about the fact that a higher tax authority dismissed his complaint in whole or in part.

In accordance with Article 4 of the tax code, the principles of taxation include the principles of obligation, transparency, fairness of taxation, taxpayer honesty, unity of the tax system and Publicity of the tax legislation of the Republic of Kazakhstan.

      In accordance with paragraphs 1, 2 of Article 8 of the tax code, the honesty of the taxpayer (tax agent) in carrying out actions (omissions) to fulfill a tax obligation is provided.

     It is not allowed for a taxpayer (tax agent) to profit from his illegal actions in order to obtain tax benefits (tax savings) and reduce tax payments.

     The Tax Authority is obliged to prove the circumstances that served as the basis for the adoption by the Tax Authority of the disputed act.

      In accordance with Article 128 of the APC, the legal regulation of evidence, factual data that cannot be obtained as evidence, the subject of evidence and sources of evidence, as well as the procedure for collecting, studying, evaluating and using evidence (proof) and other provisions on evidence and evidence are determined by the norms of the APC, with the exception of the exceptions established by the APC.

      Taking into account the provisions of Article 128 of the code, the Tax Authority is obliged to submit to the court evidence of the illegality of the occurrence of tax benefits in the taxpayer.

When a taxpayer disputes a notification of the results of a tax audit or an act of checking the procedure and terms of conducting tax audits established by Paragraph 2 of Chapter 18 of the tax code on the basis of violations by the Tax Authority, the court should take as a basis an assessment of the nature of the violations committed and their impact on the legality and validity of the audit results. In particular, in accordance with Article 148 of the tax code, the results of an audit conducted without an instruction, which is the basis for conducting a tax audit, or on the basis of an instruction that is subsequently recognized as illegal, are subject to recognition as illegal.

      The above consequences arise if, in violation of Paragraph 1 of Article 146 of the business code, the instruction for conducting a tax audit, with the exception of a counter-audit, is not registered with the authorized body in the field of legal statistics and special accounting.

Paragraph 3 of Article 145 of the tax code provides for cases of unscheduled tax audits, including on the grounds provided for by the Criminal Procedure Code of the Republic of Kazakhstan. The tax authority appoints and conducts these inspections in compliance with all procedures provided for by tax legislation.

      Termination of a criminal case is not the basis for termination of such a tax audit. The initiated audit is subject to completion by drawing up an act of tax audit in accordance with Article 158 of the tax code and, if there are grounds, taking measures provided for by tax legislation.

Recognize as invalid:

      1) normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 29, 2017 No. 4 "on judicial practice of application of tax legislation" ;

      2) normative resolution of the Supreme Court of the Republic of Kazakhstan dated March 4, 2020 No. 4" on amendments to the normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 29, 2017 No. 4" on judicial practice of application of tax legislation".

In accordance with Article 4 of the Constitution, this normative resolution is included in the composition of the current law, is universally binding and enters into force from the date of its first official publication.

     The Republic Of Kazakhstan

Chairman Of The Supreme Court

A. Mergaliyev

     The Republic Of Kazakhstan

Judge of the Supreme Court,

Secretary of the plenary session

G. Almagambetova

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