On the recognition of illegal actions to issue a notification on the elimination of violations identified by the state revenue authorities based on the results of desk control
No. 6001-23-00-6ap/14351807 dated October 23, 2023.11.2023
Plaintiff: N-N LLP (hereinafter referred to as the Partnership)
Respondent: Russian State Institution "State Revenue Administration" (hereinafter referred to as the Department)
The subject of the dispute: on the recognition of the illegal action to issue a notification on the elimination of violations identified by the state revenue authorities based on the results of desk control dated August 16, 2022 No. 5811Kt700020 and its cancellation
Plaintiff: C.D.
Defendant: HSI
Interested person: K.A.
The subject of the dispute: the recognition of the action to issue a decision on the initiation of enforcement proceedings and its cancellation.
Review of the cassation complaint of the plaintistinterested person
PLOT: during the analysis of tax reporting data, I&K LLP was classified as a high risk, since its registration was declared invalid by the IESEC decision of September 16, 2019, which entered into force.
The court's decision indicated the non-involvement of the first head of I&K LLP in the creation of this legal entity, and established the absence of the will of the person indicated in the constituent documents of the legal entity, who had nothing to do with its creation, did not carry out or carry out entrepreneurial activities.
By the Partnership for the reporting period on deductions of CPN/IPN in the form of
100.00 mutual settlements with the counterparty of I&K LLP for a total amount of 41,853,036 tenge were attributed.
On August 16, 2022, the Office verified the activities of the Partnership through desk control, as a result of which a notification was sent to the Partnership through the Taxpayer's Office on the elimination of violations identified by the state revenue authorities based on the results of desk control.
No.5811QT700020 (hereinafter referred to as the Notification).
On October 13, 2022, on the basis of the Writ of execution no.3910- 19-00-2/8480-1 On March 30, 2020, enforcement proceedings were initiated to recover the amount owed from Ch.D. in favor of K.A.
The Central Bank also issued orders against the debtor prohibiting the debtor from performing certain actions, seizing property and requesting information about bank account numbers and seizing them if there are funds available.
Disagreeing with the decision of the CCI to initiate enforcement proceedings, the plaintiff appealed to the court, arguing that during the consideration of the civil case, K.A.'s interests were represented by lawyer S.A., who acted on the basis of a notarized power of attorney with the right to receive the awarded property and funds with all interest and accruals due. According to the written receipt, S.A. received the amount of debt in the amount of 1,398,186 tenge for transfer to K.A. In addition, K.A. He has not applied to the court for a writ of execution for more than two years, since the decision to collect the debt was made, which indicates that he received the debt from his representative, who died in October 2021.
Judicial acts:
1st instance: the administrative claim was denied.
Cassation: judicial acts are cancelled. A new decision on the satisfaction of the claim has been made in the case.
The notification of the results of the tax audit No. 5811QT700020 dated August 16, 2022 was declared illegal and canceled.
Conclusions: in rejecting the claim, the courts of first instance and appeal concluded that the Management of the Partnership reasonably attributed to a high degree of risk and sent a Notification. The documents submitted by the Partnership relate only to primary accounting documents and their existence cannot serve as proof of the actual receipt of goods from I& K LLP, since the contracts on behalf of the latter were signed by U.Y., the invoices for the release of goods were also signed by him. However, the court's decision established that U.Y. was not involved in the creation of I&K LLP.
These conclusions of the courts of first instance and appeal are unfounded, they are based on the incorrect application of substantive and procedural law.
According to article 6 of the Tax Code, taxes and payments to the budget of the Republic of Kazakhstan must be certain. Certainty of taxation means the establishment in the tax legislation of the Republic of Kazakhstan of all the grounds and procedure for the occurrence, fulfillment and termination of a taxpayer's tax obligation, the duty of a tax agent to calculate, withhold and transfer taxes.
The courts of the first and appellate instances, having failed to provide a complete and objective investigation of the circumstances of the case, came to an unjustified conclusion that the transactions between the Partnership and its counterparty, I&K LLP, were unconfirmed.
So, in October and November 2019, between the Partnership and the LLP
"I and K" concluded 20 contracts for the supply of goods, the description, quantity and price of which are specified in the specifications (appendices) to the contract, which are an integral part of the Contract.
In accordance with the annexes to the Agreement, I&K LLP supplied the Partnership with goods in the form of spare parts, oils, tires, lubricants for cars, etc.
As supporting evidence of deduction of expenses for purchased goods, the Partnership provided the relevant invoices for the release of goods, receipts, electronic invoices.-
invoices, reconciliation report, and payment orders.
When making the decision, the courts did not take into account that all the primary documents (contracts, invoices for the release of goods, receipts, electronic invoices, reconciliation report and payment orders) were submitted to the court of first instance.
The Partnership's activities are aimed at generating income, and its expenses (expenses) in connection with the implementation of this activity are documented.
These circumstances indicate that, in accordance with paragraph 3 of Article 242 of the Tax Code, the Partnership has legitimately deducted expenses for settlements with the above-mentioned counterparty.
Consequently, the Partnership, in accordance with Article 256 of the Tax Code, legitimately attributed the amount of VAT on turnover.
It should also be noted that the contested Notification was signed with an electronic digital signature (hereinafter - EDS) by T.I., Deputy Head of the Risk Management Department of the Department of Analysis, Statistics and Risk Management of the State Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan, whereas the Notification was issued by the head of the Department, A.T.
The procedure for using the electronic document management system (hereinafter referred to as EDMS) is defined in the Rules for Documentation, Document Management and the Use of Electronic Document Management Systems in Government and Non–governmental Organizations, approved by Resolution of the Government of the Republic of Kazakhstan No. 703 dated October 31, 2018 (hereinafter referred to as the Rules).
Subitems 13), 17) of paragraph 5 of the Rules establish that electronic document management is the exchange of electronic documents between government agencies, individuals and legal entities; the original of an electronic document is a document certified (signed) with an electronic digital signature created using the private key of an electronic digital signature, formed initially in the format of an electronic document and not having a paper the original script.
By virtue of the requirements of Article 7 of the Law on Electronic Document and Electronic Digital Signature, "an electronic document that meets the requirements of this Law and is certified by an EDS of a person authorized to sign it is equivalent to a signed paper document.
The legislation allows the use of both an electronic document certified by an EDS and a copy of the document in electronic and digital form, backed by the original, made on paper with the seal of the organization and the signature of an official.
The Management does not deny that the Notification submitted to the Partnership electronically is an electronic document.
By Order of the Minister of Finance No. 146 dated February 8, 2018 "On certain issues of Tax and Customs Administration", the notification form for the elimination of violations identified was approved.
by the state revenue authorities based on the results of desk control (Appendix No. 22 to the Order).
According to the approved form, the notification shall specify, among other things, the surname, first name, patronymic (if any) of the head of the state body and his signature.
According to paragraph 1 of Article 12 of the Law on Electronic Digital Signature, an electronic digital signature can be used by government officials when certifying electronic documents issued by them within their authority.
Consequently, at the time of sending and signing the disputed Notification, T.I. was not acting as the head of the Department, and therefore should not have been listed as a signatory to this notification, since at that time he did not have the right to sign such documents.
Paragraph 1) of Article 36 of the CPC establishes that the internal administrative procedures of state bodies provided for in this Code are carried out under the conditions of subordination of subordinate state bodies and officials to higher ones.
Similar provisions are contained in subparagraph 10) of paragraph 1 of Article 4 of the Law of November 23, 2015 "On the Civil Service of the Republic of Kazakhstan" regulating the obligation to execute decisions taken by higher state bodies and officials within their powers for subordinate civil servants and civil servants of lower state bodies.
By virtue of part 3 of Article 40 of the CPC, the Regulation on determining the status and powers of a structural subdivision of a state body is approved.
According to the Regulation, the Department is a territorial body of the Department authorized to perform the functions of public administration and control in the areas of tax administration.
Chapter 3 of the Regulation defines the status and powers of the head of the Department in organizing his activities. According to paragraph 16 of this Chapter, the Head manages the Department and is personally responsible for the performance of the tasks assigned to the Department and the exercise of its functions, and according to subparagraph 9) of paragraph 19, signs management acts within the scope of competence.
The contested Notification was formed on behalf of the Department, where the signatory indicated an official – the head of the A.T., accordingly, in order to properly execute an administrative act entailing negative legal consequences for the plaintiff, only the EDS of the head of the authorized person for that period or the deputy of this Department had to be certified.
In the case under consideration, there is actually no properly signed Notification that meets the requirements of Article 79 of the APPC for administrative acts, since, in violation of subparagraph 5) of the first part of Article 80 of the APPC, they do not contain the signature of an official who cannot impose negative obligations on the Partnership.
the consequences.
Thus, the conclusions of the local courts are erroneous in terms of the application of substantive law, which is the basis for the cancellation of the contested judicial acts with the issuance of a new decision on the satisfaction of the claim.
Appeal: the court's decision was overturned with a new decision on the satisfaction of the claim.
Cassation: the decision of the appellate instance is overturned, the decision of the court of first instance is upheld.
Conclusions: the court of first instance, guided by paragraph 1 of Article 38 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs" (hereinafter referred to as the Law), refused to satisfy the claim, since, according to the court's conclusion, at the time of the initiation of enforcement proceedings, the grounds provided for by the specified rule of the Law, imposing on the Civil Protection Service the obligation to refuse the claimant to initiate enforcement proceedings, were missing, and a receipt submitted by the plaintiff without specifying the date with the text crossed out cannot serve as a basis for recognizing the actions of the Civil Protection Service to initiate enforcement proceedings as illegal. At the same time, no other reliable evidence indicating the fulfillment of obligations by the plaintiff to the interested party K.A. was presented to the court.
Disagreeing with the above-mentioned conclusions of the court, the appellate judicial board overturned the court's decision and issued a new decision to satisfy the claim, substantiating its conclusions with the conclusion of the postmortem forensic examination dated March 02, 2023, according to which the handwritten text on receipt of funds was executed by S.A. Therefore, according to the conclusion of the appellate judicial board, the plaintiff fulfilled the judicial act and obligations to K.A. It doesn't matter. At the same time, the court of appeal pointed out that there were no illegal actions in the actions of the bailiff, since at the time of the initiation of enforcement proceedings he did not know and could not have known about the facts established by the court and the disputed relationship between the recoverer and the debtor.
The Judicial Board believes that the conclusions of the court of appeal on the annulment of the court's decision on the above-mentioned grounds, which led to the appeal board making the opposite decision on
satisfaction of the claim is erroneous, based on a misinterpretation of substantive law, and the arguments of the cassation appeal deserve attention due to the following.
Based on the meaning of paragraph 1 of Article 38 of the Law, the ICJ is obliged to issue a decision on the refusal to initiate enforcement proceedings only in the event of one of the above grounds, the list of which is exhaustive.
It has been reliably established that at the time of the initiation of enforcement proceedings, the above grounds were absent.
Meanwhile, the appellate judicial board did not give a proper assessment of the grounds provided for by Law for the refusal of the CSI to initiate enforcement proceedings, but in fact established that the plaintiff's obligations to K.A. to repay the debt were fulfilled on the basis of a receipt and a postmortem examination report, while resolving the issue of fulfilling the requirements of the enforcement document by virtue of subparagraph 7) of paragraph 1 of Article 47 of the Law is the exclusive prerogative of the CSI at the stage of execution of enforcement proceedings.
In this regard, the judicial board agrees with the conclusions of the court of first instance that there were no violations in the defendant's actions when initiating enforcement proceedings, therefore, the defendant had no grounds for refusing to initiate enforcement proceedings.
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