Recognition of illegal and cancellation of notification by the State Revenue Department
No. 6001-22-00-6ap/2475 dated 05/25/2023
Plaintiff: T LLP"
Respondent: Russian State Institution "State Revenue Department of the State Revenue Department"
The subject of the dispute: on recognition as illegal and cancellation of the notification
Review of the plaintiff's cassation appeal
PLOT:
Notification No.3013QJ700001 dated 12/31/2021 proposed that the Partnership exclude from the VAT offset the amounts for mutual settlements with taxpayers of LLP "C" and LLP "H". Based on the court's decision, the state registration of these counterparties was declared invalid, and they were removed from VAT registration from the date of their registration.
Judicial acts:
1st instance: the claim is partially satisfied. It was decided to declare illegal and cancel the notification of the elimination of violations identified by the results of desk control in terms of the accrued amount of CPN 36,423,928 tenge.
The claim regarding the accrued amount of KPT 15,802,142 tenge was denied.
Appeal: the decision remains unchanged.
Cassation: the decision was overturned, with the referral of the case for a new hearing to the court of appeal in a different composition.
Conclusions: When resolving the dispute and rejecting the claim, the local courts proceeded from the fact that the tax authority had a basis for issuing a notification: the effective decisions of the Council of Economic Cooperation of 09/20/2021 and 11/01/2021 on the recognition of the state registration of counterparties LLP "C" and LLP "H" invalid. The courts also concluded that the provision of wheelset repair services by the counterparty was not justified due to the lack of equipment, fixtures, measuring and monitoring tools, as well as qualified personnel authorized to perform these works.
The judicial board did not agree with these conclusions.
Thus, by virtue of the provisions of Articles 94 and 95 of the Tax Code, desk control is carried out by tax authorities based on the study and analysis of tax reports submitted by the taxpayer (tax agent), information from authorized state bodies, as well as other documents and information about the taxpayer's activities.
According to the provisions of subparagraph 2) of paragraph 2 of Article 96 of the Tax Code, the taxpayer's execution of a notification on the elimination of violations identified by the tax authority based on the results of desk control is recognized in case of disagreement with violations - the submission of an explanation of the violations on paper and electronic media to the tax authority that sent the notification, except for the cases provided for in paragraph 3 of this article.
In accordance with paragraph 3 of Article 96 of the Tax Code, a taxpayer is not entitled to provide an explanation for the following violations identified by the results of desk control:
when offsetting the amount of VAT on purchased goods, works, and services for transactions (operations) with legal entities whose registration (re-registration) has been declared invalid based on a court decision that has entered into force.
By virtue of paragraph 5 of Article 96 of the Tax Code, in cases of filing a complaint to the court against the actions (inaction) of tax officials in sending a notification on the elimination of violations provided for in subparagraph 3) According to paragraph 3 of this article, revealed by the results of desk control, the taxpayer has the right to prove the actual receipt of goods, works, and services from a legal entity whose registration (re-registration) has been declared invalid on the basis of a court decision that has entered into legal force.
In accordance with Article 264 of the Tax Code, expenses related to transactions carried out without actually performing work, rendering services, or shipping goods with a taxpayer whose head and/or founder (participant) is not involved in the registration (re-registration) and/or financial and economic activities of such a legal entity are not deductible. persons established by a court decision that has entered into legal force, with the exception of transactions for which the court has established the actual receipt of goods, works, and services from such a taxpayer.
Similar provisions are contained in Article 403 of the Tax Code, according to which VAT, previously recognized as offset VAT, is subject to exclusion for transactions made without actually performing work, rendering services, or shipping goods with a taxpayer who has been removed from VAT registration based on a decision of the tax authority in accordance with subitems 2) and 3) paragraph 6 of Article 85 of this Code, the head and (or) founder (participant) of which is not involved in the registration (re-registration) and (or) the implementation of financial and economic activities of such a legal entity, established by a court decision that has entered into force, with the exception of transactions in which the court has established the actual receipt of goods, works, services from such a taxpayer.
From the analysis of the above-mentioned norms of the Tax Code, it follows that the Partnership does not have the right to submit an explanation for the notification, and the way to express disagreement with it is to appeal to the court.
In this case, the taxpayer has the right to prove in court the actual receipt of goods, works, and services from a legal entity whose registration (re-registration) was declared invalid on the basis of a court decision that entered into force.
The Partnership has submitted to the court documents sent to the Partnership from the counterparty of LLP "S" for the conclusion of the contract - the charter of LLP "S", signed by Z.A., the decision of the founder No. 1 dated 02/07/2018, the order on assuming the post of director of Z.A. dated 02/08/2018 with the right of the first signature in all financial documents, a certificate of state registration registration of the legal entity dated 08.02.2018.
In confirmation of the actual provision of services from LLP "C", the contract dated 08/24/2018 for the repair of components and assemblies of rolling stock concluded between the Partnership and LLP "C", acts of acceptance and transfer of wheel sets from repairs dated 11/02/2018, dated 11/07/2018, invoice dated 11/08/2018 in the amount of 38 494 000 tenge.
Due to the requirements of part seven of Article 131 of the CPC, the documents attached to the claim are usually submitted in originals. If it is impossible to present the original documents, they may be presented in copies certified in accordance with the procedure established by law. If a copy of the document cannot be certified due to the absence of the original, the claim must state the reason for the impossibility of such actions.
The court, at the reasoned request of the party or on its own initiative, takes measures to collect and examine the case materials, verify the validity of the arguments of the parties and the reliability of the evidence provided to the court, and also performs other actions aimed at achieving the objectives of the proceedings (part four of Article 15 of the CPC). Circumstances cannot be considered established if only copies of documents are provided to confirm them, when the need to present the original follows from the requirements of the law (part five of Article 68 of the CPC).
According to Article 413 of the CPC, when considering a case on appeal, the court verifies the legality and validity of the decision of the court of first instance in full. The court of appeal shall evaluate the evidence available in the case, as well as the evidence presented in accordance with the second part of Article 404 of this Code, within the limits of the claimed claim.
At the same time, the above-mentioned procedural rules were violated by the local courts, the originals of the primary documents were not examined, copies of the materials attached to the case were not certified, and the circumstances of Z.A. signing the charter of LLP "S" and the order to take office as director were not clarified.
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