On the application by the courts of legislation on the withdrawal of income received in the course of entrepreneurial or other activities without a license

Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated June 18, 2004 No. 4.

      The footnote. Throughout the text, the word "Code" was replaced by the word "Administrative Code" by the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated 11/25/2016 No. 11.

       For the purposes of uniform application in judicial practice of the legislation of the Republic of Kazakhstan on the withdrawal of income earned by persons engaged in entrepreneurial or other activities without a license, the plenary session of the Supreme Court of the Republic of Kazakhstan decides:

To draw the attention of the courts to the fact that according to paragraph 1 of Article 28 of the Law of the Republic of Kazakhstan dated May 16, 2014 No. 202-V "On Permits and Notifications" (hereinafter referred to as the Law), certain types of activities or actions (operations) in the areas provided for in subparagraphs 1) to 26) of paragraph 1 of this Article are subject to licensing. articles.

      An exhaustive list of the type and subspecies of activity for which a person is required to obtain a license in accordance with the established procedure is provided in APPENDIX 1 to the Law.

     The footnote. Paragraph 1 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11/25/2016 No. 11.

 In accordance with subparagraph 2) paragraph 1 of Article 3 of the Law for carrying out activities or actions (operations) Without a license, persons are subject to administrative liability provided for in Article 463 of the Code of Administrative Offences of the Republic of Kazakhstan (hereinafter referred to as the Administrative Code) or criminal liability provided for in Article 214 of the Criminal Code of the Republic of Kazakhstan.

     The footnote. Paragraph 2 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11/25/2016 No. 11.

 For carrying out activities by a person without a license, the court, in accordance with Articles 41, 45 of the Administrative Code, may, in the form of an additional administrative penalty, confiscate not only items belonging to this person by right of ownership and which were the instrument of committing an administrative offense, but also the income received by the person as a result of committing such an offense. The specified items and income may be confiscated if it is provided for by the sanction of the relevant article.  The special part of the Administrative Code.

     The footnote. Paragraph 3 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 25.11.2016 No. 11.

Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 25.11.2016 No. 11.

Objects that are an instrument for committing an administrative offense related to the conduct of entrepreneurial or other activities without a license should be understood as machines, devices, machine tools, mechanisms and other devices, as well as raw materials (semi-finished products) directly used by a person when committing an administrative offense.

Income received from carrying out entrepreneurial or other activities without a license should be understood as income received from the sale of goods (works, services) for the entire period of such activity. The income should include the cost of goods sold (works, services), but not paid by the date of the report on the administrative offense.

      If taxes have been paid on income received from entrepreneurial or other activities without a license, the amount of income subject to confiscation is reduced by the amount of taxes paid.

To draw the courts' attention to the fact that, in accordance with article 30 of the Law, a license and (or) an appendix to the license or a reasoned refusal to issue them are issued by the licensor no later than fifteen working days, with the exception of licenses and (or) appendices to the license in the field of atomic energy use, the financial sector and activities related to the concentration of financial resources, education, oil and gas. The list of documents attached by the licensee to the application is specified in article 29 of the Law and is not subject to extensive interpretation.

      If the applicant has not been granted a license within the specified period or a reasoned refusal to grant a license has not been given on the grounds specified in paragraph 1 of Article 32 of the Law, the income received by him after the expiration of the specified period cannot be considered as income received from unlicensed activities. Such income is not subject to confiscation.

      At the same time, the income received by an individual and a legal entity for the period from the beginning of the actual activity to the expiration of the licensor's license period should be considered as income received from unlicensed activities.

     The footnote. Paragraph 7 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 25.11.2016 No. 11.

 A protocol on an administrative offense drawn up by an official of an authorized state body for carrying out entrepreneurial or other activities without a license must meet the requirements specified in Article 803 of the Administrative Code.

      The protocol should include not only a list of items that were the instrument of committing an administrative offense, indicating their individual characteristics and cost, but also data on income earned by a person while carrying out entrepreneurial or other activities without a license.

      The value of the items that were the instrument of committing an administrative offense is determined at market value, if necessary, with the involvement of an appraiser in accordance with the Law of the Republic of Kazakhstan dated November 30, 2000 No. 109-II "On Valuation activities in the Republic of Kazakhstan".

      The amount of income earned by a person while carrying out entrepreneurial or other activities without a license is indicated in the tax audit report or other document of the body whose officials are authorized to draw up a protocol on an administrative offense for carrying out such activities.

     The footnote. Paragraph 8 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 25.11.2016 No. 11.

 According to  According to Article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, is generally binding and comes into force from the date of its official publication.

Chairman of the Supreme Court

Republic of Kazakhstan

Judge of the Supreme Court

Republic of Kazakhstan,

Secretary of the Plenary

meetings

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