Recognition as illegal and cancellation of the notification of the results of the state revenue audit
No.6001-22-00-6ap/1775 dated 04/04/2023
Plaintiff: LLP "Zh"
Respondent: Russian State Institution "Department of State Revenue"
The subject of the dispute: on recognition as illegal and cancellation in terms of notification of the results of the audit
Review of the defendant's cassation complaint
PLOT:
The Department conducted a thematic tax audit of the Partnership on the correctness of the calculation and timely payment of VAT, as well as confirmation of the accuracy of the VAT amounts submitted for refund, based on the order dated 12/03/2020.
The verification period is from April 1, 2019 to September 30, 2020.
According to the results of the audit on 22.02.2021, an act was drawn up and notification No. 140 was issued on the accrual of VAT on goods produced, works performed and services rendered in the territory of the Republic of Kazakhstan in the amount of 109,714,005 tenge, as well as on the excess of the amount of VAT credited over the amount of the accrued tax, not confirmed for refund, not payable to the budget, in the amount of 1,223,712,584 tenge.
The Partnership appealed the notification of the results of the inspection in part to a higher authorized body, whose decision of 07/19/2021 denied the complaint.
The claim disputes the notification confirming the refund of VAT in the amount of 321,223,428 tenge, due to the non-confirmation of the export of petroleum products to the territory of the member states of the Eurasian Economic Union.
Judicial acts:
1st instance: the claim is satisfied with the decision.
Appeal: the decision remains unchanged.
Cassation: judicial acts are upheld. The ruling of 04/24/2023 corrected a typo in the resolution.
Conclusions:
In accordance with paragraph 1 of Article 446 of the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget" (hereinafter referred to as the Tax Code), when exporting goods from the territory of the Republic of Kazakhstan to the territory of another member State of the Eurasian Economic Union, a zero value-added tax rate is applied.
Unless otherwise established by this chapter, when exporting goods from the territory of the Republic of Kazakhstan to the territory of another member State of the Eurasian Economic Union, a value-added tax payer has the right to assign value-added tax to offset in accordance with Chapter 46 of this Code.
In accordance with paragraph 5 of Article 152 of the Tax Code, in case of export of goods from the territory of the Republic of Kazakhstan to the territory of a member state of the Eurasian Economic Union, when determining the amount of value-added tax to be refunded in accordance with this Code, information from the documents specified in Article 447 of this Code is taken into account.
By virtue of the requirements of Article 447 of the Tax Code, the documents confirming the export of goods are:
agreements (contracts) subject to amendments, additions and appendices to them (hereinafter referred to as agreements (contracts) on the basis of which goods are exported, and in the case of leasing goods or granting loans in the form of things - leasing agreements (contracts), agreements (contracts) providing for the provision of loans in the form of things, contracts (contracts) for the manufacture of goods;
an application for the import of goods and payment of indirect taxes with a note from the tax authority of the member state of the Eurasian Economic Union, to whose territory the goods were imported, for the payment of indirect taxes and (or) exemption and (or) other method of payment (on paper in the original or a copy) or a list of applications (on paper or in electronic form form);
copies of shipping documents confirming the movement of goods from the territory of one member State of the Eurasian Economic Union to the territory of another member State of the Eurasian Economic Union.
During the tax audit, the plaintiff submitted documents confirming the export of goods from the Republic of Kazakhstan to the territory of the EAEU member States:
contracts for the export of liquefied petroleum gas with customers from: the Republic of Belarus for a total of 184,876,709 tenge 69 tiyn; the Russian Federation for a total of 106,841,528 tenge 88 tiyn; the Kyrgyz Republic for a total of 29,505,189 tenge 50 tiyn;
applications for the import of goods and payment of indirect taxes with the stamp of the tax authorities of the Republic of Belarus, the Russian Federation and the Kyrgyz Republic, on whose territory the goods were imported;
duplicates of railway waybills (for the sender) confirming the movement of goods from the territory of the Republic of Kazakhstan to the territory of the EAEU Member State.
The basis for refusing to confirm the refund of the VAT amount, the tax authority indicates the failure to submit a railway consignment note with a calendar stamp at the destination station in column 27 "Date of arrival" (Article 8 "Explanations on filling out the consignment note" of the Agreement on International Railway Freight Traffic). According to the tax authority, a duplicate bill of lading without a mark at the destination station cannot be considered as a shipping document confirming the movement of goods from the territory of the Republic of Kazakhstan to the territory of another EAEU member state.
In accordance with paragraph 7 of section 2 of the Agreement on International Rail Freight Traffic, a duplicate consignment note is issued to the sender after the conclusion of the contract of carriage. The original bill of lading and the cargo arrival notification sheet accompany the cargo to the destination station and are with the recipient of the cargo, and the travel document is with the carrier.
Therefore, a duplicate bill of lading intended for the sender cannot contain an impression of the carrier's calendar stamp, since it does not accompany the cargo to the destination station.
The case file contains documents confirming the movement of goods across the territory of the EEA: copies of the originals of railway bills of lading, travel documents and notifications of arrival of goods in the Russian Federation, Belarus and Kyrgyzstan with imprints of the calendar stamp of carriers at the destination station.
These documents were requested by the plaintiff from the buyers for submission to the court, since the duplicate invoices were not taken into account by the tax authorities.
In order to ensure the completeness and reliability of the documents submitted by the plaintiff, the court of first instance instructed the defendant, in accordance with Chapter 49 of the EAEU Customs Code, to request information from the customs authorities of the Russian Federation, the Republic of Belarus and the Kyrgyz Republic confirming the export of liquefied petroleum gas (propane - butane mixture) to the customs territory of the EAEU member States, the buyers of which are the companies listed in the annex to the request.
In response to court requests, the State Customs Committee of the Republic of Belarus (response dated 02/28/2022), the Office of the Federal Tax Service for the Republic of Dagestan of the Russian Federation (response dated 11/26/2022), and the State Tax Service under the Ministry of Economy and Finance of the Kyrgyz Republic (response dated 12/14/2021) confirmed the plaintiff's supply of gas in the period 2019-2020.
The courts decided on the illegality of the conclusions of the inspection report and the notification of refusal to confirm the amount of VAT to be refunded, in terms of the amount of 321,223,428 tenge. At the same time, the tax authority is not obligated to refund the specified amount of excess VAT, since the procedure for refunding the amount of excess VAT to the taxpayer from the personal account is subject to implementation in accordance with Chapter 49 of the Tax Code, taking into account the conclusions of the audit report and notification in the non-disputed part.
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