The cancellation of the notification of the tax authority on the basis of which the penalties were imposed entails a review of the judicial act and the decision of the tax authority.
By resolutions of the Deputy head of the State Institution "Tax Administration" B. №№ 001515, 001523, 001524, 001525, 001526, 001527 and 001528 dated April 23, 2009, individual entrepreneur Z. was brought to administrative responsibility under part one of Article 209 of the Code of Administrative Offenses (hereinafter referred to as the Administrative Code) with a fine of thirty percent. from the accrued amount of taxes and other mandatory payments to the budget totaling 18,631 tenge. By the ruling of the specialized administrative court of Pavlodar, on May 12, 2009, the resolutions of the authorized body were left unchanged. B.'s complaint is not satisfied. In the protest of the Deputy Prosecutor General, the question was raised about the cancellation of the court's decision and ruling, and the termination of the proceedings in the case due to the absence of Z.'s actions. the composition of an administrative offense. Having studied the case materials, the supervisory judicial board of the Supreme Court considered the protest to be satisfied. It follows from the case file that on the basis of Z.'s statement on termination of their activities by employees of the tax administration in Pavlodar conducted a comprehensive tax audit, which revealed the facts of underestimation of the amount of social tax in the declarations for the period from the 4th quarter of 2004 to the 2nd quarter of 2006.
According to notification No. 5250 dated April 20, 2009, Z. accrued an additional amount of social tax in the amount of 86,580 tenge and calculated a penalty in the amount of 76,819 tenge. Z., disagreeing with the inspection report and the notification of the tax authority, appealed them to the court. By the decision of the specialized interdistrict Economic Court of Pavlodar region dated February 16, 2010, which was left unchanged by the decisions of the courts of appeal and cassation instances, Z.'s statement partially satisfied. The court annulled the act of tax audit regarding the calculation of social tax and Notification No. 5250 dated April 20, 2009. By the resolution of the Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court of the Republic of Kazakhstan dated November 4, 2010, the initiation of supervisory proceedings to review the judicial acts was refused. At the same time, the courts, satisfying Z.'s stated claims, concluded that the decision of the specialized interdistrict Economic Court of the Pavlodar region of September 14, 2009, which entered into force, imposed on the tax authority the obligation to eliminate violations of Z.'s rights. by establishing a special tax regime for him on the basis of a simplified declaration. Therefore, the applicant does not fall under the list of persons subject to social tax. By virtue of the second part of Article 608 of the Administrative Code, the circumstances established by the effective court decision in a civil case do not need to be proved when considering other cases of administrative offenses involving the same persons. According to the requirements of paragraph 22 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated November 26, 2004 No. 18 "On certain issues of application of legislation on administrative offenses by courts", a decision on an administrative offense case must be made taking into account the results of consideration of the complaint against the notification of the tax authority. Thus, since the notification of the tax authority on the basis of which the penalties were imposed has been canceled, in accordance with the above-mentioned requirements of the law, the judicial act and the decision of the tax authority are subject to revision. In addition, during an additional audit, the tax authority reported that since their notification has now been canceled, the decisions made against Z. under the first part of Article 209 of the Administrative Code are subject to cancellation. Guided by Article 676 of the Administrative Code, the Supervisory judicial board for Civil and administrative cases of the Supreme Court of the Republic of Kazakhstan canceled the decisions of the Deputy head of the State Institution "Tax Administration" B. №№ 001515, 001523, 001524, 001525, 001526, 001527 and 001528 dated April 23, 2009 and the definition of the specialized administrative court of Pavlodar dated May 12, 2009 in in relation to the individual entrepreneur Z., the proceedings were terminated due to the absence of elements of an administrative offense in his actions.
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