Pre-trial appeal procedure in the application of administrative procedural legislation
When the Administrative Procedural Procedure Code (APPC) was introduced in 2021, administrative courts had the goal of making decisions in accordance with the objectives and principles (the active role of the court, rationality, proportionality, interpretation of doubts in favor of the plaintiff) of the APPC, which are new to the civil and administrative law of the Republic of Kazakhstan.
The task of administrative legal proceedings is the fair, impartial and timely resolution of administrative cases in order to effectively protect and restore violated or disputed rights, freedoms and legitimate interests of individuals and legal entities in public relations. Thus, the practice should have been based on the presumption of guilt of the administrative body.
This task fully relates to tax legal relations, where disputes over the timeliness of tax registration of a payer for certain types of taxes, the timing and amount of tax accrual, issues of desk control, conducting inspections and appealing their results, and collecting tax arrears are subject to resolution.
This analysis reveals the practice of applying the norms of tax law in the framework of lawsuits conducted under the APPC.
At the beginning of the year, there was a practice of returning claims by Specialized Interdistrict Administrative Courts (SMAS) in connection with non-compliance with the pre-trial appeal procedure.
So, in general, the APPC is built on the principle that all disputes must first be considered by higher (authorized) administrative bodies.
The task is set in such a way that the administrative authorities themselves change and improve their own law enforcement practices, and the central authorities at the national level have an understanding of the problems and the state of affairs in the provision of public services and control measures in the regions. Thus, article 91 of the CPC provides for an initial appeal of the act (action) to the body that issued it or to a higher authority.
There was a certain misunderstanding among the plaintiffs as to why it was necessary to file a complaint with the body that issued the administrative act. A conflict of interest was assumed. However, this procedure was determined by the task assigned to the administrative body to promptly correct the error, if any.
At the same time, tax relations are characterized by a fairly complete settlement of many issues by the Code "On Taxes and Other Mandatory Payments to the Budget" (hereinafter referred to as the Tax Code), including pre–trial appeals.
Accordingly, according to paragraph 5 of Article 91 of the CPC, due to the existence of other provisions in industry legislation, the norms of the Tax Code in this part are subject to application.
However, during the year that was analyzed, this issue was tested in practice. There were still refunds between January and July 2022.
Based on the provisions of Articles 96 and 178 of the Tax Code, the taxpayer has the right to choose the procedure for considering his dispute: in a higher authority (DGD, CGD, the appeals commission under the Ministry of Finance) or immediately in the SMAS.
Today, the practice is uniform and a common position has been developed on the right of the plaintiff to choose a way to protect his rights in a pre-trial or judicial procedure. At the same time, the time limits for appealing acts and actions of the tax authority in the CMAS are regulated by the provisions of Article 136 of the CPC.
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