Recognition of illegal actions of the State Revenue Department for improper consideration of the complaint
No.6001-22-00-6ap/1322 dated 11/21/2023
Plaintiff: A.J.
Respondent: Russian State Institution "Department of State Revenue" (hereinafter referred to as the Department)
Interested parties: D-T LLP, RSU "State Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan"
The subject of the dispute: on the recognition of illegal actions for improper consideration of a complaint, on forcing a passenger car to take an action on the application of the valuation method for the value of the transaction with imported goods
Revision of the plaintiff's cassation complaint: On July 18, 2022, the customs authority requested the declarant to make changes (additions) to the information stated in the goods declaration. On July 19, 2022, the plaintiff agreed in writing to adjust the customs value of the goods according to the calculation made by the customs authority in the specified requirement.
After the adjustment of the customs value and the payment of customs duties by the plaintiff, the goods are released for domestic consumption.
On September 5, 2022, the plaintiff filed a complaint with the Committee about his disagreement with the use of the backup method (method 6) and asked for a Mercedes-Benz E 53 4Matic AMG passenger car, released into free circulation under DT No. 57201/180722/0010358, to take action to apply the valuation method for the value of the transaction with imported goods (method 1), with appropriate changes to the information stated in the product declaration.
On September 21, 2022, the Committee sent a response to this complaint stating that a similar complaint by D-T LLP, of which A.Zh. is the founder, was answered earlier on August 11, 2022. Disagreeing with the answer, the plaintiff appealed to the court against the defendant's actions for improper consideration of his application with the obligation to change the method of assessing customs value.
Judicial acts:
1st instance: the claim is partially satisfied. The defendant's actions in not considering and deciding on the merits of the plaintiff's application, sent on September 5, 2022, as a pre-trial settlement of the dispute, were recognized as illegal. The claim for forcing the defendant to take an action on the application of method 1 of valuation based on the value of the transaction with imported goods in relation to a passenger car was refused.
Appeal: the court's decision remains unchanged.
Cassation: judicial acts are annulled, with the referral of the case for a new hearing to the court of appeal in a different composition of the court.
Conclusions: by resolving the dispute and rejecting the claim regarding forcing the defendant to take an action in relation to a passenger car to apply method 1 of estimating the value of a transaction with imported goods, local courts, guided by part four of Article 155 of the CPC, concluded that the actions of the customs authority to refuse to correct the information stated in the declaration for the goods were lawful. due to the fact that the price of the goods was underestimated at the end of the customs procedure of the customs warehouse.
The courts pointed out that when selling the vehicle, the relationship between D-T LLP and A.J. (the founder) affected the price actually paid or payable in the amount of 75,704.00 euros. Since DT No.57201/180722/0010358, the price of the product was announced - 33,662,000 tenge (70,057.65 euros). Consequently, the discrepancy in the price of the goods imported by D T LLP and the sale of A.Zh. amounts to 5,646.35 euros. Due to the impossibility of using methods 1-5, when determining the customs value of goods, method 6 for determining the customs value was lawfully applied, based on information available to the customs authority (information on DT 5532/300622/0083560).
The Board does not agree with the above conclusions of the local courts on the following grounds. Regarding the requirement to declare illegal actions for improper consideration of the complaint.
Considering the merits of these claims, the local courts did not take into account the provisions of part six of Article 100 of the CPC, according to which, in case of disagreement with the decision of the body considering the complaint, the participant in the administrative procedure has the right to appeal the administrative act, administrative action (inaction) to another body considering the complaint, or to the court.
According to sub-paragraphs 4) and 5) of Article 4 of the CPC, an administrative act is a decision taken by an administrative body, an official in public relations, exercising the rights and obligations of a certain person or an individually defined circle of persons established by the laws of the Republic of Kazakhstan.
Administrative action (inaction) - action (inaction) an administrative body, an official in public relations that is not an administrative act.
By virtue of the provisions of the first part of Article 131 of the APPC, Articles 132-135 of the APPC, the claims filed in court are:
1) a claim for challenging an encumbering act;
2) a claim for coercion to adopt a favorable act or imposing the obligation not to adopt an onerous administrative act;
3) a claim for the commission of an action or non-commission of an action not aimed at the adoption of an administrative act;
4) a claim for recognition of the existence or absence of a legal relationship.
By virtue of paragraph 11 of Article 410 of the Code "On Customs Regulation", upon completion of verification of customs, other documents and (or) information prior to the release of goods, if the documents and (or) information submitted in accordance with this Article or explanations of the reasons why such documents and (or) information cannot be submitted and (or) missing, or the results of customs control in other forms and (or) customs examination of goods and (or) documents carried out as part of such an inspection, If they do not confirm the accuracy and (or) completeness of the information being verified and (or) do not eliminate the grounds for checking customs and other documents and (or) information, the customs authority, based on the information at its disposal, sends a request to change (supplement) the information stated in the customs declaration prior to the release of goods in accordance with in accordance with Article 183 of this Code.
That is, an onerous administrative act was subject to judicial appeal - the requirement dated July 18, 2022 to amend (supplement) the information stated in the goods declaration. By virtue of article 16 of the CPC, administrative proceedings are conducted on the basis of the active role of the court.
The court, not limited to explanations, statements, petitions of participants in the administrative process, arguments, evidence and other materials of the administrative case presented by them, comprehensively, fully and objectively examines all the factual circumstances relevant for the proper resolution of the administrative case.
At the same time, the courts, in implementing the principle of the active role of the court, did not clarify the plaintiff's right to change the subject of the claim, did not assist in their correct formulation, which led to the consideration of claims that are not subject to consideration in administrative proceedings.
In addition, the courts did not provide a legal assessment of the plaintiff's arguments about the absence of influence of the relationship between the importer and the declarant on the customs value of the goods due to the presence of a significant exchange rate difference when paying for the goods under a foreign economic transaction and its purchase from a customs warehouse.
On the basis of the above, the contested judicial acts are subject to cancellation with the referral of the case for a new hearing to the court of appeal in a different composition of the court, the cassation appeal of the plaintiff is partially satisfied.
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