On the recognition of illegal and cancellation of the requirement to pay the amounts due, customs duties, taxes, special, anti-dumping, countervailing duties, penalties
No. 6001-22-00-6ap/942(2) dated 02/03/2023 (similar case No. 6001-22- 00-6ap/1614 dated 03/09/2023).
Plaintiff: JSC IC "A"
Respondent: RSU "Department of State Revenue for the city of Astana"
The subject of the dispute: on the recognition as illegal and cancellation of claim No. 9 dated June 28, 2021 on payment of amounts due, customs duties, taxes, special, anti-dumping, countervailing duties, penalties
Review of the plaintiff's cassation complaint PLOT:
On February 22, 2017, LLP "R" (hereinafter referred to as the Declarant) and LLP "C" (hereinafter referred to as the Customs Representative) signed an agreement on the provision of customs broker services for customs clearance of goods and vehicles. The contract is valid from February 22, 2017 to December 31, 2019.
On April 14, 2017, the Insurance Company and the Customs Representative concluded a voluntary insurance contract for the liability of the Customs Representative to the state revenue authorities, used as security for the payment of customs duties and taxes in accordance with customs legislation No. 1158530, valid from July 1, 2017 to June 30, 2018 (hereinafter referred to as Contract 1).
On June 20, 2018, a standard insurance contract was concluded between the Insurance Company and the customs representative for the purpose of ensuring the fulfillment of the obligation to pay customs duties and taxes during customs operations No. 1200373, valid from July 1, 2018 to June 30, 2019 (hereinafter referred to as Contract 2).
The beneficiaries of these insurance contracts are the territorial bodies of the State Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan.
The customs authority conducted a desk customs inspection in respect of the Declarant, which revealed violations of customs legislation on the fact of unlawful use of methods for determining customs value, underestimation of customs value.
The act of desk customs inspection dated November 12, 2020
No. 55100/121120/00071 and notification of the elimination of violations based on the results of a desk customs inspection dated November 12, 2020
No. 55100/121120/00071 were sent to the Declarant.
Due to the absence of the Declarant at the place of residence, an inspection report was drawn up on December 30, 2020.
The notification on the elimination of violations based on the results of the desk customs inspection dated November 12, 2020 No. 55100/121120/00071 has not been appealed in accordance with the established procedure and has legal force.
On February 16, 2021, the customs authority issued notices to the Declarant and the Customs Representative on the repayment of arrears on customs payments, taxes, special,
anti-dumping, countervailing duties, penalties, interest No. 10 and
11. This notification has not been challenged in accordance with the established procedure, and therefore has legal force and is subject to execution.
The notification sent to the Customs Representative has been returned due to the absence of the addressee. On June 14, 2021, an inspection report was drawn up on the absence of a Customs representative at the location.
On June 28, 2021, the Department issued claim No. 9 for payment of the amounts of customs duties, taxes, special, anti-dumping, countervailing duties, penalties, and interest, which was sent to the plaintiff for execution and left unsatisfied by the latter.
Judicial acts:
1st instance: the claim is satisfied.
Appeal: the decision is overturned, the claim is denied.
Cassation: the decision is upheld.
Conclusions:
The conclusions of the appeals board are that the insurance payment is made by the insurer who concluded the insurance contract during which the insured event occurred, therefore, the obligation to pay customs duties and taxes in addition to the declarant is the joint responsibility of the Customs Representative.
Improper performance of duties by the Declarant to pay customs duties and taxes when performing customs operations for declaring goods by underestimating the customs value of goods in the period: -from August 1, 2017 to June 21, 2018 according to DT no.; -from July 9, 2018 to December 19, 2018 according to DT no. according to the conclusions of the Court of Appeal The board is an insured event that occurred within the period of validity of insurance contracts and insurance coverage.
The Customs authority has legitimately issued a claim to the UK due to the failure of the Declarant and the Customs Representative to fulfill the obligation to pay customs duties.
Paragraph 2 of Article 180 of the Civil Code of the Republic of Kazakhstan for obligations with a certain period of performance, the limitation period begins at the end of the period of performance.
The termination date of Contract 1 is June 30, 2018.
From July 2 to July 9, 2018, 5 working days are provided for
directions of the requirement. From July 10 to July 11, 2018, 2 working days are provided to fulfill the requirement. Therefore, under Contract 1, the date determining the beginning of the limitation period is July 12, 2018.
The termination date of Contract 2 is June 30, 2019.
From July 1 to July 5, 2019, 5 working days are provided for
directions of the requirement. From July 9 to July 10, 2019, 2 working days are provided to fulfill the requirement.
Under Contract 2, the date determining the beginning of the limitation period is July 11, 2018.
The disputed claim for payment of the amounts of customs duties, taxes, special, anti-dumping, countervailing duties, and penalties was issued on June 28, 2021.
Taking into account the provisions of the Customs Code, and taking into account the three-year limitation period, the board considers that the deadline for submitting a claim by the Department has not been missed.
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