On the recognition of illegal and cancellation of the notification of the elimination of violations identified by the results of desk control
No. 6001-24-00-6ap/2740 dated March 13, 2025
Plaintiff: LLP "A"
The defendant: Russian State Institution "State Revenue Administration" (hereinafter referred to as the Department)
The subject of the dispute: on the recognition of illegal and cancellation of the notification of the elimination of violations identified by the results of desk control dated December 8, 2023
Review of the defendant's cassation complaint PLOT:
The Department conducted desk control in relation to LLP "A", as a result of which, on December 8, 2023, a notification was issued on the elimination of violations with a moderate degree of risk.
Appendix No. 1 to the notification notes a violation of Article 400 of the Tax Code related to an overestimation of the value added tax (VAT) offset in the amount of KZT 3,741,429.
The period covered by the audit is indicated in Appendix No. 2 - from July 1 to September 30, 2023.
Appendix No. 2 to the notification also noted a violation of Article 400 of the Tax Code related to an overestimation of the amount of VAT offset in the amount of 5,214,744.00 tenge.
LLP "A" filed a lawsuit with the court, arguing that on November 30, 2021, the plaintiff and LLP "K" concluded a contract for the purchase and sale of rice (shala) No. 17, under the terms of which LLP "K" undertook to sell LLP "A" rice shala from the harvest of 2022 in the amount of 1,700 tons at a price of 90 tenge per kilogram by 11/01/2022, and LLP "A" has committed to transfer funds in the amount of 153,000,000 tenge.
On July 1, 2022, the Parties concluded an additional agreement
No. 1 to the specified agreement, under the terms of which clause 1.1. of the Agreement was changed and the amount of rice sold and its cost were increased, namely, LLP "A" transfers funds in the amount of 270,000,000 tenge, LLP "K" sells rice in the amount of 3,000 tons from the harvest of 2022 at a price of 90 tenge, in The period is up to and including 31.12.2022. He argues that the obligations under the agreements have been fulfilled in full.
LLP "A" in the claim also indicates that the defendant violated the deadline for notification, according to Article 114 of the Tax Code.
Having disagreed with the results of the desk control, LLP "A" applies to the court.
Judicial acts:
1st instance: the claim is satisfied. The notification on the elimination of violations identified by the results of desk control dated December 8, 2023 was declared illegal and canceled.
Appeal: the decision of the court of first instance remains unchanged.
Cassation: Judicial acts are upheld.
Conclusions: the local courts, resolving the dispute on the merits and satisfying the claim, recognized the notification as illegal, since it was issued in violation of the deadline set by subparagraph 10) of paragraph 2 of Article 114 of the Tax Code.
Subparagraph 10) of paragraph 2 of Article 114 of the Tax Code stipulates that notification of the elimination of violations identified by the tax authorities based on the results of desk control must be sent to the taxpayer no later than ten working days from the date of detection of violations in tax reporting, except for the cases established by paragraph 7 of Article 59 and paragraph 8 of Article 66 of the Tax Code.
The time period of ten working days determined by the legislator for sending the notification is important to ensure the legality and validity of the notification of a violation of tax legislation.
In order for a notification of a violation of tax legislation to be recognized as legitimate and justified, the tax authorities must issue it within ten working days from the moment the violation was detected during desk control.
Therefore, it follows from the literal interpretation of the legal norm that the period of 10 working days for issuing a notification is calculated from the date of detection of violations of tax reporting, and not from the date of entry into force of the judicial act.
The commission of data comparison actions by the tax authority is not related to the entry into force of a judicial act and is not an unconditional basis for issuing a notification.
The procedure for interaction of state revenue authorities regulates their actions before conducting desk control. Only after all the prescribed internal administrative procedures have been completed is there a basis for conducting desk control and issuing a notification.
The deadline for issuing a notification is calculated based on the chronology of the internal procedures preceding the desk inspection.
Thus, the notification must be issued within ten working days from the day when the author of the notification revealed a violation within the framework of desk control.
In accordance with Articles 94, 96 and 114 of the Tax Code, important circumstances are the date of the taxpayer's submission of tax reports, the date of receipt of the effective court decision, as well as other documents and information about the taxpayer's activities.
The defendant must prove this date in court, since otherwise the court independently sets the date based on the documents submitted to the court and/or requested from the tax authority.
internal or other documents that confirm the fact of the date of occurrence of the circumstance that became the basis for issuing a notification on the fulfillment of tax obligations.
This is important to ensure accuracy and fairness in establishing the fact that served as the basis for issuing the notification.
The application of the provisions of subparagraph 10) of paragraph 2 of Article 114 of the Tax Code is the most correct when clarifying and complying with the described circumstances and requirements arising from the procedural part. Their proper application ensures transparency and fairness of tax administration, which, in turn, contributes to the creation of trusting relationships between taxpayers and tax authorities.
Meanwhile, it has been reliably established that the state registration of K LLP was declared invalid by the decision of the Judicial Board for Civil Cases dated September 25, 2023. This judicial act has entered into force since its announcement.
By the decision of the tax authority dated October 10, 2023, K LLP was removed from VAT registration.
Despite this, the administrative act in the form of a disputed notice was issued on December 8, 2023, that is, in violation of the specified deadline.
At the same time, the Office, being the initiator of the administrative act, was unable to provide convincing and exhaustive evidence confirming the legality and validity of the notification within the framework of the internal administrative procedure.
This means that the defendant did not prove the moment when he became aware of the violations identified by the results of the desk inspection.
On the contrary, the courts set a time limit for issuing the disputed notice to the LLP.
Consequently, the procedural omission of the author of the disputed notice was the basis for the satisfaction of the claim.
In the context of the above, the judicial board agreed with the conclusions of the local courts on the satisfaction of the claim, since the courts gave an appropriate legal assessment to the circumstances of the case and the evidence presented by the parties, and the substantive law norms were applied correctly.
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