Recognition of illegal claims for payment of due amounts of customs duties, taxes, special, anti-dumping, countervailing duties, penalties, and interest
No.6001-22-00-6ap/1098 dated 24.10.2023
Plaintiff: JSC "SK".
Respondent: RSU "Department of State Revenue 1", RSU "Department of State Revenue 2".
The subject of the dispute is the recognition of illegal claims No. 8 and No. 9 dated June 28, 2022 on the payment of due amounts of customs duties, taxes, special, anti-dumping, countervailing duties, penalties, and interest.
Review of the plaintiff's cassation complaint PLOT: Based on foreign trade contracts, EC LLP imported consumer goods from China to the Republic of Kazakhstan in the period 2021-2022. On the basis of the assignment agreements, LLP "A-B" and LLP "A" were the customs representatives of LLP "EC" (declarant).
One of the conditions for carrying out activities as a customs representative is the existence of an insurance contract.
On August 26, 2021, SK JSC and A LLP (the Policyholder) concluded an insurance contract for the purpose of ensuring the fulfillment of duties of a legal entity operating in the field of customs No. 99-DSPO - 402. The term of the contract (insurance protection) is from August 26, 2021 to August 25, 2025. A similar insurance contract was concluded on September 28, 2021 between JSC "SK" and LLP "A-B", the term of the contract (insurance protection) is from October 29, 2021 to October 28, 2022. According to the terms of the agreement, the beneficiaries are the territorial bodies of the State Revenue Committee. As of April 13, 2022, according to the results of an on-site customs inspection, notification No. 9 on payment of customs duties, taxes and penalties in the amount of 2,584,629,436 tenge was issued to the declarant. On the same day, an extract from the notification and the customs inspection act for No. 9 and No. 9-1 informed the customs representatives of A-B LLP and A LLP about the need to eliminate violations.
On June 8, 2022, notifications were sent to the customs representatives on the repayment of debts under the TPNiP. Due to the failure of the customs representatives to fulfill their joint obligation to repay the amounts owed to the insurer on June 28, 2022, claims for No. 8 and 9 for payment of TPNiP amounts in the amount of 4,222,887 tenge and 249,460,000 tenge were sent to the insurer.
Judicial acts:
1st instance: the claim is partially satisfied. The requirement No. 8 dated June 28, 2022 regarding the indication of the agreement No. 99 DSPO-420 dated September 28, 2021 was declared illegal and canceled. The Department is charged with the obligation to comply with requirement No. 8 dated June 28, 2022, within five working days from the date of entry into force of the court's decision, taking into account the legal position of the court.
Appeal: the decision of the court of first instance has been changed. In the satisfied part, it was canceled with the issuance of a new decision to dismiss the claim.
Cassation: the appeal ruling has been changed. Regarding the refusal of the claim for recognition as illegal and cancellation of claim No. 8 dated June 28, 2022, the resolution was canceled with the issuance of a new decision to satisfy the claim of JSC IC. The requirement No. 8 dated June 28, 2022, issued to JSC IC, was declared illegal and canceled. The rest of the resolution remains unchanged.
Conclusions: In resolving the dispute and partially satisfying the stated claim, the court of first instance proceeded from the fact that claim No. 8 unlawfully specified insurance contract No. 99-DSPO-420 dated September 28, 2021 with a validity period from October 29, 2021 to October 28, 2022, while the defendant issued a claim for customs declarations, completed in July and September 2021. At the same time, in the period from July 17 to September 22, 2021, another insurance contract No. 99-DSPO-240 dated October 14, 2020 was in force, for which the plaintiff is also the insurer. In this regard, the court of first instance decided to declare the claim illegal in terms of specifying contract No. 99-DSPO-420 dated September 28, 2021.
By overturning the decision of the court of first instance and rejecting the claim, the appellate instance, with reference to paragraph 2 of Article 180 of the Civil Code (hereinafter referred to as the Civil Code), considered claim No. 8 legitimate, since the insurance contract dated October 14, 2020 was valid during the contested period and the three-year deadline for its issuance had not expired.
In terms of requirement No. 9, the local courts agreed on the legality of its issuance, since the customs declarations for which additional amounts are charged as part of the audit were issued by the customs representative of LLP "A" during the period of insurance coverage.
The notification of the inspection results by the declarant and the customs representative has not been appealed and is legally binding.
The Board did not agree with the conclusions of the appellate instance regarding the recognition of claim No. 8 as legitimate on the following grounds. It has been established that the claim made to A-B LLP is based on insurance contract No. 99-DSPO-420 dated September 28, 2021, according to which the insurance coverage period is defined from October 29, 2021 to October 28, 2022. Whereas it follows from the extract of the notification based on the results of the customs inspection that, on the basis of the service agreement, the customs representative of A-B LLP, on behalf of the declarant, carried out customs clearance of the declaration in the period July-September 2021. That is, as of the date of the customs declaration, the insurance contract specified in the requirements was not concluded. As a result, a claim based on such a contract cannot be considered legitimate.
The correct indication in the insurance contract requirement is essential, since the terms of the contract determine the maximum amount of the insured sum, the period of insurance coverage, the limitation period and other conditions that allow determining the amount of obligations of the insurer.
In this regard, the board considered erroneous the conclusions of the court of first instance on the possibility of recognizing the claim as partially illegal, as well as the conclusions of the appellate instance that the moment of occurrence of the insured event is determined by the day when the customs authority issues a claim for payment of the amounts due to the TPNiP, submitted within the term of the contract.
By virtue of paragraph 1 of Article 392 of the Civil Code, when interpreting the terms of a contract, the court takes into account the literal meaning of the words and expressions contained therein. The literal meaning of a contract clause, in case of ambiguity, is established by comparing it with other terms and the meaning of the contract as a whole.
Clause 7.1 of section 7 of the contracts "Determination of the amount of the insurance payment and the procedure for its implementation" states: the fact of the occurrence of an insured event is established on the basis of a claim for payment of the amounts due to the insurance benefit, sent by the beneficiary in writing.
In the legal context, the expressions "an insured event is established" and "an insured event occurs" are not identical. From the literal interpretation of the specified provision of the contract in the context of the content of the entire section 7, it follows that the insurance payment is subject to the issuance of a claim by the customs authority.
At the same time, the analysis of paragraph 5 of the contract also allows us to conclude that the insured event itself occurs on the day of customs declarations in violation of the provisions of customs legislation. The conclusions of the court of first instance on the termination of the insurance company's obligations after the expiration of the contract, reflected on page 7 of the decision, contradict the requirements of the law. Based on the content of Articles 803, 817, 828 of the Civil Code, the basis for payment of the insured sum is the occurrence of an insured event during the term of the contract.
If an insured event is detected outside the term of the contract, the person in whose favor the insurance contract was concluded (the beneficiary) is entitled to an insurance payment if the insured event itself occurred during the term of the contract.
Paragraph 2 of Article 827 of the Civil Code stipulates that the insurance contract terminates from the moment the insurance payment is made for the first insured event, unless otherwise provided by the contract or legislative acts of the Republic of Kazakhstan. The contracts do not contain conditions for the termination of the obligation to pay the insured amount upon expiration.
On the contrary, clause 13.6 of the contracts explicitly stipulates that termination of the contract does not release the insurer from the obligation to make insurance payments to the beneficiary for insured events that occurred during the term of the contract.
Thus, the expiration of the insurance contract does not terminate the plaintiff's obligation to pay the insured amount upon the occurrence of an insured event during the term of the contract. The Board found claim No. 8 illegal and cancelled, and the plaintiff's cassation appeal was partially satisfied.
The Board noted that the recognition of claim No. 8 as illegal does not exclude the possibility that the beneficiary may re-send the claim to A-B LLP with the correct indication of the insurance contract within the established limitation period.
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