On the recognition and cancellation of the notification of elimination of violations identified based on the results of on - camera control (hereinafter referred to as the notification) as illegal
Dated May 13, 2025 No. 6001-24-00-6ap / 3352
Plaintiff: LLP" O " (hereinafter referred to as LLP)
Defendant: Republican state institution "State Revenue Department" (hereinafter referred to as the Department)
Subject of the dispute: on the recognition and cancellation of the notification of elimination of violations identified based on the results of on - camera control (hereinafter referred to as the notification) as illegal
Review on the Cassation complaint of the defendant subject of the case:
Registration of sole proprietor "A" is declared invalid and service is terminated.
The court's decision entered into legal force on September 29, 2023.
IP with a letter from the specialized inter-district Economic Court of September 29, 2023 East No. 5265-23-5-21/13267
The decision of the court in respect of" A " was sent for execution to the State Revenue Department for the district of the state revenue department for the city.
By the decision of the Specialized Interdistrict Economic Court of October 27, 2023, the requirement of the Department of state revenue for the district of the Department of state revenue for the city was satisfied and liquidated by invalidating the state registration of LLP "a".
The court's decision entered into legal force on December 11, 2023. Specialized inter-district Economic Court
By the letter of December 12, 2023 East No. 5265-23-5-21/17514, the court decision regarding LLP "A" was sent for execution to the state revenue department for the district of the state revenue department in the city.
On the basis of these court decisions, the Department issued a notification No. 001 on the elimination of violations of the average degree of risk identified by the state revenue bodies based on the results of on-camera control on February 07, 2024 and submitted to LLP.
The period covered by on-camera control in accordance with Annex 1 to the notice is 01.01.2021-31.12.2023. Illegal offsetting of Value Added Tax (VAT) amounts for self-settlement with a tax payer whose registration is deemed invalid in accordance with subparagraph 1) of Paragraph 1 of Article 400 and Paragraph 4 of Article 403 of the tax code. The amount of violations is 12,378,804 tenge.
According to Annex 2 to the notification, violations are detected on electronic invoices of the supplier'S IP "a" ESF-743, ESF-141, ESF-982, (hereinafter referred to as the ESF with the IP "a").
According to Annex 2 of the notice, violations by the supplier
ESF-451, ESF-261, ESF-693, ESF-623, ESF-063, ESF-473 of " a " LLP,
Defined on electronic invoices ESF-872, ESF-351 (hereinafter referred to as the ESF of LLC "a").
The plaintiff appealed to the court and stated that in 2020-2021, under the Public Procurement Agreement, the construction of the R-33 irrigation canal was carried out on the territory of the city, financial relations on this form with a number of counterparties, including sole proprietors
The contract with "A " has been concluded, the VAT has been transferred, the tax
that declarations have been submitted, that the IP "A" is registered for VAT in accordance with the ESF, that all documents are drawn up in accordance with the requirements. In addition, several contracts were concluded with the supplier "A" LLP in 2021, tax declarations were submitted, "a" LLP was registered for VAT in accordance with the ESF, all documents were drawn up in accordance with the requirements. The forms under public procurement contracts were handed over to the customer in full, the court decision did not reveal the data on writing a false ESF, the rules of the Department did not specify the competence to send a notification, sign it by the head, the notification was sent no later than ten working days from the date of detection of violations, the notification was declared illegal and requested to be canceled.
Judicial acts:
1st stage:
The Specialized Interdistrict Administrative Court of 2024
The decision of June 6 satisfied the claim of the plaintiff LLP.
The defendant's notification of elimination of violations identified by the results of on-camera control No. 001 of February 07, 2024 was recognized as illegal and canceled.
Appeal: the decision of the court of first instance is upheld.
Cassation: judicial acts left in force.
Conclusions: local courts, having satisfied the claim, guided by articles 94, 96 and subparagraph 10) of Paragraph 2 of Article 114 of the Tax Code, Article 79 of the code of the Russian Federation, sections 1 and 2 of Article 84, correctly concluded that the acceptance of a notification with a significant violation of the deadline established by the Tax Authority is subject to its recognition as illegal.
On the basis of subparagraph 1) of Part Two and part three of Article 129 of the code, the burden of proof is borne by the defendant who adopted the encumbrance administrative act on the claim in the dispute.
The management board did not submit to the court the reasons and evidence for the late adoption of the notification in advance of the court's decisions within the appropriate time frame, therefore, the courts reasonably calculated the period of acceptance of the notification from the date of entry into force of the decision of the state enterprise.
With reference to Article 48 of the tax code, the arguments of the Cassation complaint and application that the Tax Authority has the right to accept the notification within the period provided for in this article are unfounded, as the "claim period" and "notification period" are not similar terms, regulated by various norms of the tax code.
In fact, the notification may be received within the limitation period, but the deadlines specified in Article 114 of the Tax Code must be observed.
In the light of the above-mentioned and established by the courts, the Judicial Board shall notify the local courts about the satisfaction of the claim
he agreed with the conclusion, because the illegality of the administrative act appealed to the court was confirmed during the consideration of the case.
At the same time, the conclusions of the appeal instance on the proof of the actual implementation of settlements between the plaintiff and these counterparties are subject to exclusion from the reasoned part of the resolution in connection with the right to conduct inspections, tax administration measures, including the inadmissibility of preliminary determination of the results of tax audits, enshrined in Article 145 of the tax code.
Judicial acts are issued on the basis of the norms of material and procedural law, the norms of the law are applied correctly, and the evidence in the case is evaluated correctly from the point of view of the law.
The judicial board considered that there are no valid grounds for canceling or changing the contested judicial acts.
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