On the recognition of illegal actions to de-register for value added tax Administration of State Revenue
No. 6001-24-00-6ap/1670 dated March 04, 2025
Plaintiff: Ya LLP
Respondent: Russian State Institution "State Revenue Administration" (hereinafter referred to as the Department)
The subject of the dispute: on the recognition of illegal actions to de-register for value added tax
Review of the plaintiff's cassation appeal and the prosecutor's cassation motion
PLOT:
The sole founder of "Ya" LLP is K.N.
By the decision of the district court of December 21, 2022, K.N. was declared incompetent. The decision has entered into force.
On April 14, 2023, based on a court decision, the Management removed Ya LLP from the registration register for value added tax (VAT).
On September 1, 2023, the Director of Ya LLP filed a tax application for VAT registration.
On September 1, 2023, at 10:55 a.m. 41 seconds, Ya LLP issued a 06001 series certificate, No. 1121960 on VAT registration based on tax application No. 060401092023N00010 dated September 1, 2023.
On September 1, 2023, at 10:55 a.m. 45 seconds, Ya LLP was registered for VAT. Further, a request was sent to the information system of the state revenue authorities "Integrated Tax Information System" (hereinafter - INIS RK).
On September 1, 2023, at 10:57 a.m. 43 seconds, a response was received from the INIS of the Republic of Kazakhstan that there was information about an incapacitated taxpayer. On September 1, 2023, at 10:55 a.m. 44 seconds, Ya LLP was de-registered for VAT, since the sole founder of the legal entity is legally incompetent.
In this regard, Ya LLP filed an administrative claim with the court.
Judicial acts:
1st instance: the claim was denied.
Appeal: the decision of the first instance was upheld.
Cassation: judicial acts are cancelled with the return of the claim.
Conclusions: the concept and features of an administrative act, administrative action and judicial jurisdiction of disputes are determined by the provisions of the APPC.
According to paragraph 2 of Article 102 of the APPC, the courts have jurisdiction in administrative proceedings over disputes arising from public law relations provided for in the APPC.
In accordance with the first part of Article 4 of the APPC:
administrative action (inaction) - action (inaction) an administrative body, an official in public relations that is not an administrative act;
9) an administrative claim is a claim filed in court for the purpose of protecting and restoring violated or disputed rights, freedoms or legitimate interests arising from public law relations.
By virtue of the provisions of the first part of Article 131 of the APPC, Articles 132-135 of the APPC, the claims filed in court are:
a claim for challenging an encumbrance act;
a claim for coercion to accept a favorable act or the obligation not to accept an onerous administrative act;
a claim for the commission of an action or non-commission of an action not aimed at the adoption of an administrative act;
a claim for recognition of the existence or absence of a legal relationship.
It follows from the stated provisions that challenging an administrative action (inaction) of administrative authorities is permissible for a participant in an administrative procedure in the absence of an administrative act.
An administrative act is understood (subparagraph 4) of the first part of Article 4 of the CPC) as a decision taken by an administrative body, an official in public relations, exercising the rights and obligations of a certain person or an individually defined circle of persons established by the laws of the Republic of Kazakhstan.
An administrative act is the main external form of administrative activity of administrative bodies and officials. It is adopted by an administrative body in public law relations, has an authoritative character and represents a unilateral decision of an administrative body endowed with authority, which is mandatory and secured by state coercion and is aimed primarily at the realization of subjective public rights and obligations, addressed to a specific person or an individually defined circle of people.
It should be noted that when the administrative procedure is completed by issuing an administrative act, the administrative act is subject to judicial challenge, and not the actions (inaction) of the administrative body.
This decision meets the criteria of an administrative act and has all the necessary details: the basis of the decision, the number, date and signature of the official.
In resolving the dispute and rejecting the claim, the local courts proceeded from the fact that the requirements of subparagraph 6) of paragraph 4 of Article 85 of the Tax Code are imperative, and the actions of the tax authority to remove the LLP from the registration register for value added tax are lawful.
Thus, the decision of the Office is subject to appeal in administrative proceedings, since the legal consequences follow from the administrative act itself, and not from the actions taken to make it.
By virtue of subparagraph 11) of the second part of Article 138 of the CPC, the court issues a ruling on the return of the claim if the case is not subject to consideration in administrative proceedings.
In the circumstances described, the claim was subject to refund.
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