On the recognition as illegal and cancellation of the order of the Minister of Finance regarding the inclusion in the schedule of inspections in a special order
No. 6001-24-00-6ap/758(2) dated April 10, 2025
Plaintiffs: LLP "R", LLP "S"
Respondent: State Institution "Ministry of Finance of the Republic of Kazakhstan" (hereinafter - the Ministry)
The subject of the dispute: on the recognition as illegal and cancellation of the order of the Minister of Finance of the Republic of Kazakhstan dated May 25, 2023 regarding the inclusion in the schedule of inspections in a special order
Review of the cassation complaint of the plaintiff of "R" FABULA LLP:
On May 25, 2023, the Ministry issued an order approving a schedule for conducting special inspections by the territorial bodies of the State Revenue Committee (hereinafter referred to as the Committee). for the second half of 2023, in the field of ensuring tax receipts and other mandatory payments to the budget, completeness and timeliness of the transfer of social payments.
By the contested order, the plaintiffs who are classified as high-risk by the defendant are included in this inspection schedule.
On June 19, 2023, the State Revenue Department sent the plaintiffs a notice on conducting a comprehensive tax audit on the fulfillment of obligations for all types of taxes and social payments.
The plaintiffs appealed the order of the Ministry of Finance in court.
Judicial acts:
1st instance: By the decision of the SMAS of September 22, 2023, the claims were denied.
Appeal: the decision and ruling of the court of first instance are left unchanged.
Cassation: The decision of the SMAS of September 22, 2023 and the decision of the SCAD of December 21, 2023 in this case were canceled, a new decision was made in the case to satisfy the claim of LLP "R" and "S".
The order of the Minister of Finance of the Republic of Kazakhstan dated May 25, 2023 regarding the inclusion of LLP "R" in the Schedule of periodic tax audits based on the risk assessment of the territorial bodies of the State Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan for the second half of 2023 in the field of ensuring tax revenues and other mandatory payments to the budget, completeness and the timeliness of the transfer of social payments.
The order of the Minister of Finance of the Republic of Kazakhstan dated May 25, 2023 regarding the inclusion of LLP "C" in the Schedule of periodic tax audits based on the risk assessment of the territorial bodies of the State Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan for the second half of 2023 in the field of ensuring tax revenues and other mandatory payments to the budget, completeness and the timeliness of the transfer of social payments.
Conclusions: in accordance with paragraph 2 of Article 141 of the Entrepreneurial Code of the Republic of Kazakhstan (hereinafter referred to as the PC), the risk assessment system is a set of measures carried out by a control and supervisory authority to appoint inspections and preventive control and supervision with a visit to the subject (object) of control and supervision.
Risk assessment refers to the activities of control and supervisory authorities to measure the likelihood of harm.
The criterion for assessing the degree of risk is a set of quantitative and qualitative indicators related to the direct activities of the subject of control and supervision, the specifics of industry development and the factors influencing this development, allowing subjects (objects) of control and supervision to be classified as different degrees of risk.
According to paragraph 1 of Article 136 of the Tax Code, the risk management system is based on an assessment of the degree (level) of risks and includes measures developed and/or applied by tax authorities in order to identify and prevent risk.
The tax authorities analyze the data of tax reports submitted by taxpayers (tax agents), information received from authorized state bodies, local executive bodies, authorized persons, as well as other documents and (or) information about the taxpayer's activities (Clause 4 of Article 136 of the Tax Code).
Paragraph 1 of Article 137 of the Tax Code stipulates that the criteria for the degree of risk are a set of criteria by which taxpayers (tax agents) are assessed and then categorized according to degrees of risk.
The risk criteria and the procedure for applying the risk management system are determined by the tax authority and are confidential information that cannot be disclosed (including to the taxpayer for whom the degree (level) of risk has been assessed).
Periodic tax audits are assigned according to the criteria for assessing the degree (level) of risk, which are not confidential information, and the criteria for assessing the degree (level) of risk, which are confidential (official) information (paragraph 32 of the Rules).
The general indicator of the degree of risk of the subject (object) of the tax audit is calculated according to the criteria for assessing the degree of risk specified in Chapter 5 of the Rules and criteria for assessing the degree of risk related to confidential (official) information.
Thus, the assessment of the degree of risk for selection for a tax audit according to a special procedure is calculated in the aggregate of established data according to open and closed criteria.
The courts have established that the assessment of the degree of risk of taxpayers in this case for selection for tax audit was carried out in accordance with the criteria approved by the Order of the Minister of Finance of the Republic of Kazakhstan dated February 20, 2018 No. 252 "On Approval of the Rules for the application of the risk Management System based on criteria that are not confidential information" (hereinafter referred to as the Rules), and the order of the Chairman of the State Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan dated December 29, 2018
No. 592-DSP "On Approval of the Procedure for Applying the Risk Management System according to Criteria that are Confidential information" (hereinafter referred to as the Order).
As follows from the case file, the order of the Minister of Finance of the Republic of Kazakhstan dated February 20, 2018 was registered with the justice authorities, whereas the SRC Order No. 592-DSP dated December 29, 2018, which contains legal norms, has an external orientation, affects the rights of an indefinite circle of persons – all taxpayers of the country, serves as the basis for inspections of individuals and legal entities. individuals, business entities, have not passed state registration with the judicial authorities, despite the fact that the presence of a mark "For official use" is not an obstacle to its registration.
This Order is a normative legal act, as it was adopted by an authorized body, establishes legal norms, modifies, supplements, terminates or suspends their operation. These are the main features of a regulatory legal act according to the sub-paragraphs
24) and 25) of the Law of the Republic of Kazakhstan "On Legal Acts" (hereinafter – the Law). Moreover, certain structural elements of the Order, such as paragraph 14, regulate the most important public relations, establish fundamental principles and norms, which requires their consolidation at the level of the law.
Meanwhile, according to paragraph 1 of article 35-1 of the Law, the state registration of normative legal acts of central state bodies and their departments in the judicial authorities is a prerequisite for their entry into force.
Exceptions for the State registration of regulatory legal acts in the judicial authorities are specified in paragraph 3 of article 35-1 of the Law. However, the Order in question did not relate to these cases either at the time of its adoption in 2018, or at the time of the emergence of the disputed legal relationship.
Registration of regulatory legal acts in the judicial authorities of the Republic of Kazakhstan is a prerequisite for their entry into force.
According to paragraph 6 of Article 18 of the Law, the approval by the judicial authorities of draft subordinate regulatory legal acts subject to state registration is carried out by conducting a legal examination for compliance with the legislation of the Republic of Kazakhstan, the availability of legal norms and the need for state registration in accordance with the rules.
development, coordination and state registration of regulatory legal acts.
Acts containing legal norms are subject to state registration, since by the very fact of the existence of legal norms they prove that they directly or indirectly affect the rights and duties of citizens. Accordingly, unregistered regulatory legal acts have no legal effect.
This obligation is fixed both in the norms of the current Law, the current Rules for the development, coordination and state registration of regulatory legal acts, approved by the order of the acting The Minister of Justice of the Republic of Kazakhstan dated July 5, 2023 No. 464, the Rules for the Development and Approval of draft Subordinate Regulatory Legal Acts, approved by the Order of the Minister of Justice of the Republic of Kazakhstan dated July 3, 2023 No. 448, as well as the Rules for the Development, Approval and State Registration of Regulatory Legal Acts in force at the time of the adoption of the Order, approved by the Decree of the Government of the Republic of Kazakhstan dated October 6, 2016, No. 568.
Based on this, the registration of regulatory legal acts ensures the unity of the legal space of Kazakhstan.
Paragraph 1 of article 37 of the Law also stipulates that the official publication of normative legal acts concerning the rights, freedoms and duties of citizens is a prerequisite for their application.
At the same time, paragraph 1 of Article 40 of the Law provides for the possibility of incomplete presentation of officially published normative legal acts marked "For official use", "Without publication in the press", "Not for publication". This also indicates that the official publication should have been carried out with the specifics established by law.
At the same time, based on chapters 7 and 8 of the Law, the publication of a regulatory legal act follows the stage of adoption of a regulatory legal act, which in turn includes registration of a regulatory legal act in the judicial authorities of the Republic of Kazakhstan. That is, the publication of an Order with the specifics established by law must be carried out after its registration.
The arguments of the appeals board that the contested Order refers to non-normative legal acts contradict the requirements of subparagraph 24) of Article 1 of the Law.
In such circumstances, the arguments of the plaintiff's cassation complaint regarding the unjustified application by the tax authority of the closed criteria approved by this Order, which has not passed state registration with the judicial authorities, deserve attention, since such a regulatory act is not subject to application and cannot have negative consequences for taxpayers.
Taking into account the above, The judicial board found it necessary to cancel the judicial acts of the local courts in the present case and make a new decision to satisfy the stated claims for the recognition of the illegal order of the Minister of Finance of the Republic of Kazakhstan dated May 25, 2023 regarding the inclusion of LLP "R" and "S" in the Schedule of periodic tax audits based on the risk assessment of the territorial bodies of the Committee of State revenue of the Ministry of Finance of the Republic of Kazakhstan for the second half of 2023 in the field of ensuring tax revenues and other mandatory payments to the budget, completeness and timeliness of the transfer of social payments.
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