Recognition of illegal actions and notification of tax arrears
No. 6001-23-00-6ap/1581 dated 11/23/2023
Plaintiff: S.Z.
Respondent: Russian State Institution "State Revenue Administration"
The subject of the dispute: on the recognition of illegal actions and notification of tax arrears, Review of the plaintiff's cassation appeal
PLOT: The plaintiff owned a HUMMER H2 motor vehicle, built in 2004, vehicle category - D, body - E, engine capacity - 5967 cubic meters.see, with a special mark 03/07/18 KW 235 BUS 20 PM (seats) (hereinafter referred to as the vehicle).
On March 23, 2022, the above-mentioned vehicle was sold by the plaintiff to a third party. On July 30, 2022, the defendant issued a notice on the tax arrears of individuals, according to which the plaintiff must pay the tax on the specified vehicle in the amount of 1,518,405 tenge, as well as a penalty in the amount of 249,738.93 tenge.
On September 15, 2022, the plaintiff issued a tax order to collect the specified debt.
Judicial acts:
1st instance: the claim is satisfied. The actions were recognized as illegal, the notification of tax arrears of individuals dated July 30, 2022 was recognized as illegal and canceled.
Appeal: the decision of the court of first instance has been changed.
The court's decision regarding the recognition of the illegal notification of tax arrears dated July 30, 2022 was canceled with the issuance of a new decision in the specified part to dismiss the claim.
Cassation: the decision of the judicial board is canceled. The decision of the court of first instance is upheld.
Conclusions: The court of first instance, satisfying the claim, concluded that the defendant had not provided the court with evidence confirming the possibility of classifying the vehicle as a vehicle on a passenger car chassis, since the specified vehicle belongs to the category of wheeled vehicles M3 - buses.
The court of appeal, overturning the court's decision regarding the recognition of the illegal notification of tax arrears dated July 30, 2022, came to the opposite conclusion that the vehicle previously owned by the plaintiff belongs to the category of passenger cars - a limousine, since it has an increased capacity, exceeds the requirements of category "B" in terms of the allowed maximum weight and number of passenger seats..
According to subparagraph 1) of paragraph 4 of Article 492 of the Tax Code, for the purposes of the Tax Code, passenger cars include vehicles with increased capacity and off-road vehicles exceeding the requirements of category B in terms of maximum permissible weight and/or number of passenger seats (SUVs, including jeeps, as well as crossovers and limousines).
Meanwhile, it follows from the vehicle registration certificate that the HUMMER H2 car belongs to category D (truck) with a special mark 03/07/18 KW 235 BUS 20 PM (seats).
This means that the authorized body responsible for accounting and registration of cars has a vehicle of the cargo category, but not of the passenger car category. attributed to Subparagraph 2) paragraph 4 of Article 492 of the Tax Code stipulates that trucks include vehicles of category C (including CE, C1E, C1), unless otherwise specified in subparagraph 1) the present paragraph. The specialist involved by the court of first instance explained that the vehicle category belongs to the M3 category - buses.
When assessing the conformity of vehicles in the form of type approval, the classification of vehicles is carried out in accordance with Annex No. 1 to the Technical Regulations of the Customs Union "On the Safety of Wheeled Vehicles (TR CU 018/2011)". In accordance with the specified appendix, a HUMMER H2 vehicle with a technically permissible maximum mass of more than 5 tons belongs to the M3 category and is a vehicle designed to transport passengers.
Subparagraph 1) In the second part of Article 129 of the CPC, it is established that, in a dispute claim, the burden of proof is borne by the defendant who has adopted an onerous administrative act. The third part of Article 129 of the CPC stipulates that the defendant can only refer to those grounds that are mentioned in the administrative act. In this regard, the judicial board agrees with the conclusions of the court of first instance that the defendant has not provided sufficient evidence to confirm the possibility of classifying the vehicle belonging to the plaintiff as a vehicle on a passenger car chassis.
By virtue of the fourth part of Article 84 of the CPC, an illegal burdensome administrative act is subject to mandatory cancellation. In the context of the above, the judicial board considers the conclusions of the court of first instance on the satisfaction of the claim to be legitimate and justified.
Considering that the circumstances of the case have been established correctly, but an error has been made in the application of substantive law and the assessment of evidence, the contested judicial act is subject to cancellation with the decision of the court of first instance remaining in force.
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