Recognition of illegal and cancellation of notification of the results of the tax audit of the DGD
The recognition of illegal and cancellation of the notification of the results of the tax audit by the Courts did not assess all relevant and admissible evidence in the case.
No.6001-22-00-6ap/2104 dated 04.04.2023
Plaintiff: LLP "A"
Respondent: Russian State Institution "Department of State Revenue"
The subject of the dispute: on the recognition of the illegal and cancellation of the notification of the results of the tax audit dated 02/11/2021
Review of the plaintiff's cassation appeal
PLOT:
Based on the resolution of the SIR of the CFM of the Ministry of Finance of the Republic of Kazakhstan dated 06/15/2020, as part of the criminal case, the Department conducted a thematic tax audit in the Partnership on the correctness of the calculation and timely payment of value added tax (hereinafter referred to as VAT) and corporate income tax (hereinafter referred to as CIT) for the period from January 1, 2017 to March 31, 2020.
On 02/11/2021, the act of documentary tax audit No. 348 was drawn up and a notification was issued. According to the results of the tax audit, additional taxes were accrued in the amount of 145,861,036 tenge and a fine of 31,608,113 tenge; VAT in the amount of 103,733,823 tenge and a fine of 10,257,875 tenge.
Judicial acts:
1st instance: the claim was denied.
Appeal: the decision remains unchanged.
Cassation: judicial acts were annulled, the case was sent for a new hearing to the court of appeal in a different composition.
Conclusions: It follows from the tax audit report that the additional charges are due to the failure of direct suppliers to submit tax reporting forms (LLP "H. G. LTD", LLP "J. S. S.", LLP "A. S. & C.", LLP "J. 2050", LLP "A-S", LLP "J. L").
Accruals for F K 2006 LLP are based on a telephone conversation and a Whatsapp message, for TMS LLP - on the explanations of a relative of the head.
No counter-checks were carried out for all eight suppliers. There is no evidence of the impossibility of conducting counter checks in the case file.
According to Article 128 of the CPC, the procedure for the legal regulation of evidence, factual data that is not acceptable as evidence, the subject of proof and sources of evidence, as well as the collection, research, evaluation and use of evidence (evidence) and other provisions on evidence and evidence are determined by the norms of the CPC, with the exception of the specifics established by the CPC.
In accordance with the third part of Article 63 of the CPC, the circumstances of the case, which by law must be confirmed by certain evidence, cannot be confirmed by any other evidence.
At the same time, according to the second part of Article 129 of the CPC, the burden of proof in this dispute is borne by the defendant, who, according to the third part of Article 129 of the CPC, can only refer to those justifications mentioned in the administrative act.
The local courts did not give an impartial assessment of the plaintiff's evidence. As such, it is absent in judicial acts.
The Judicial Board found the following:
Some of the plaintiff's evidence was seized due to criminal investigations. At the same time, the court did not play an active role and did not demand these proofs.;
The plaintiff also filed petitions to oblige the defendant to provide written evidence in support of his arguments (the impossibility of conducting counter checks, failure to receive invoices from the plaintiff). This request was granted, but it is not clear from the judicial acts whether this evidence was presented, as the court did not evaluate it.;
The use of a telephone conversation, Whatsapp correspondence, or explanations from a relative of the supervisor is not acceptable evidence in the absence of other direct evidence.;
Currently, there is a prejudice regarding the relationship between the plaintiff and F K 2006 LLP;
There are no interrogation protocols in the case file, which the defendant refers to as evidence. There is also no assessment of whether SIR KFM of the Ministry of Finance of the Republic of Kazakhstan has the authority to initiate such checks. There is no resolution of this body in the case file.
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