On the recognition of illegal and cancellation of the notification of the results of the audit, the Department of State Revenue
No. 6001-24-00-6ap/796 dated January 10, 2025
Plaintiff: "S" LLP
Respondent: Russian State Institution "Department of State Revenue"
The subject of the dispute: the recognition of the illegal and cancellation of the notification of the audit results dated February 28, 2023.
Review of the cassation complaints of the plaintiff and the defendant PLOT:
Based on the order on the appointment of an unscheduled thematic tax audit of the State Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan No. 252 dated April 25, 2022, Regulation No. 41 dated May 11, 2022, registered with the authorized body, the Department conducted a tax audit in LLP "C" on the fulfillment of tax obligations on VAT and VAT for the period from 1 January 2019 to December 31, 2020.
On February 28, 2023, the act of the documentary tax audit and the notification of the audit results No. 41 were issued, according to which the plaintiff is required to pay the accrued amounts of taxes and penalties for the period 2019-2020 in the amount of 118,123,912.41 tenge, including:
according to the CPI from legal entities, with the exception of income from large businesses and organizations in the oil sector in the amount of 49 582 358 tenge, penalties 8,731608 79 tenge;
for VAT on goods produced, works performed and services rendered in the territory of the Republic of Kazakhstan in the amount of 50,169,830 tenge, penalties 9,640,115.62 tenge.
On March 28, 2023, LLP "S" filed a pre-trial complaint against the notification of the audit results to a higher authority.
By the decision of the Ministry of Finance of the Republic of Kazakhstan dated June 15, 2023, the notification was left unchanged, and the taxpayer's complaint was not satisfied.
LLP "S" filed a lawsuit against the Department to cancel the notification.
Judicial acts:
1st instance: the claim is partially satisfied. The notification regarding the accrual of VAT in the amount of 44 192 243 tenge and VAT in the amount of 26 515 346 tenge, in total in the amount of 70 707 589 tenge (according to mutual settlements with LLP "A") was declared illegal and cancelled. The defendant is required to recalculate taxes and penalties. The state fee in the amount of 707,076 tenge and 1% of the reduced penalty amount was returned to the plaintiff from the budget.
Appeal: the decision is upheld.
Cassation: the court's decision and the decision of the appeal have been changed. Regarding the recognition as illegal and cancellation of the notification on the calculation of VAT in the amount of 44 192 243 tenge and VAT in the amount of 26 515 346 tenge, in total in the amount of 70 707 589 tenge (according to mutual settlements with LLP "A"); imposing on the defendant the obligation to recalculate taxes and penalties; returning to the plaintiff from
The budget of the state duty in the amount of 707,076 tenge and 1% of the reduced penalty amount should be canceled with a new decision to dismiss the claim.
The rest of the judicial acts are to remain in force.
Conclusions: when resolving the dispute and recognizing as legitimate the notification regarding the exclusion from deductions of the plaintiff's settlements with such counterparties as NS LLP (supply of soil), T LLP (transportation services), S LLP (transportation services), P LLP (purchase of inert materials), the local courts were guided by articles 242, 264, 400, 403 of the Tax Code, Articles 6 and 7 of the Law "On Accounting and Financial Reporting", legitimately proceeded from the fact that the plaintiff had failed to provide proper primary documents confirming the actual implementation of financial and business operations.
Satisfying the claim and recognizing as illegal the notification regarding the exclusion from deductions of the plaintiff's settlements with LLP "A", the local courts concluded that the plaintiff's actual purchase of materials and electrical equipment from LLP "A" was proven in order to fulfill public procurement contracts dated May 17 and June 11, 2020 for the construction of electricity supply to the streets of the settlements of D. and S. with the submission of sufficient primary documents.
The arguments of the plaintiff's cassation complaint regarding the evidence of the actual implementation of transactions with the above-mentioned counterparties are refuted by the case materials.
According to paragraph 7 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of the application of legislation on judicial power in the Republic of Kazakhstan", a verdict, decision or court order that has entered into force is mandatory for everyone both in relation to the prescriptions specified in them, as well as the circumstances established by the court and their legal assessment.
The conclusions of the tax authority on the fictitiousness of the plaintiff's settlements with LLP "A" are confirmed by the verdict of the district court of April 19, 2023, which entered into force on May 12, 2023, which explicitly stated that defendant T., on behalf of controlled LLP "A", issued 2 fictitious letters to the plaintiff in the period from 2019 to 2021. invoices (dated December 31, 2020 and April 21, 2021) on not
The delivered goods totaled 248,328,340 tenge.
This court verdict has a prejudicial significance in relation to the facts of the case and the conclusions set out in it are not subject to reassessment.
Consequently, the local courts had no legal grounds for canceling the notification in this part.
Under the circumstances described, the judicial acts were annulled in the satisfied part with the issuance of a new decision to dismiss the claim, and the defendant's cassation appeal was satisfied.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
