The court and the authorized body had no legal grounds for bringing the resident to administrative responsibility, as the resident submitted copies of all documents confirming the Bank's acceptance of the contract registration documents extending the deadline for the repatriation of foreign currency.
By the resolution of the specialized interdistrict administrative court of the city of Karaganda dated March 20, 2013, LLP "Zh" was found guilty of committing an administrative offense under Article 187 of the Administrative Code, with the application of an administrative penalty in the form of a fine in the amount of 20 percent of the amount of unpaid foreign currency amounting to 2,591,665 tenge. By the ruling of the Karaganda Regional Court dated April 10, 2013, the decision of the administrative court remained unchanged. By these judicial acts, LLP "Zh" was brought to administrative responsibility for not ensuring the repatriation by December 25, 2012 of 85,993.25 US dollars transferred to a non-resident for the import of goods and subject to refund due to non-fulfillment of obligations by company "T" (China). The protest of the Deputy Prosecutor General raises the issue of the cancellation of judicial acts with the termination of proceedings in the absence of an administrative offense. The Supervisory Judicial Board of the Supreme Court overturned the decision of the specialized interdistrict administrative court of the city of Karaganda and the ruling of the Karaganda Regional Court regarding LLP "Zh". The proceedings on the case of an administrative offense against LLP "Zh" were terminated due to the absence of an administrative offense in his actions, provided for in Article 187 of the Administrative Code, stating the following.
The court and the authorized body had no legal grounds for bringing the resident to administrative responsibility, as the resident submitted copies of all documents confirming the Bank's acceptance of the contract registration documents extending the deadline for the repatriation of foreign currency.
It follows from the case file that LLP "Zh" concluded an agreement dated July 01, 2009 with the company "T" (China) for the supply of tires for a total amount of 500,000 US dollars and issued an import transaction passport dated July 03, 2009 with a repatriation period of up to 180 days. Subsequently, the terms of the agreement were repeatedly changed, and additions were made to the transaction passport. As a result, in the period from July 08, 2009 to June 28, 2012, LLP "Zh" made a payment for goods in the total amount of 1,282,182.08 USD. In the period from August 18, 2009 to September 27, 2012, a non-resident delivered goods in the amount of 1,196,188.83 USD. The value of the goods not delivered amounted to 85,993.25 US dollars, the specified amount was subject to repatriation within 180 calendar days – until December 25, 2012. This circumstance was the basis for the registration by the Karaganda branch of the National Bank of the Republic of Kazakhstan of the protocol on an administrative offense dated February 21, 2013. The local courts, considering the fact of the imputed offense proven, found LLP "Zh" guilty under Article 187 of the Administrative Code. The Supervisory Judicial Board of the Supreme Court considered that the position of the local courts and the authorized body did not comply with the law and the circumstances relevant to the case. By virtue of Article 12 of the Law "On Currency Regulation and Currency Control", the repatriation of foreign currency consists in crediting to bank accounts with authorized banks foreign currency transferred by a resident in favor of a non-resident for making payments on the import of goods, in case of non-fulfillment or incomplete fulfillment of obligations by a non-resident. The resident is obliged to ensure the repatriation of the currency within a certain period of time. The period of repatriation is the period of time calculated by the resident based on the terms of fulfillment of obligations by the parties under the currency agreement and in accordance with the procedure established by the National Bank of the Republic of Kazakhstan. The procedure for calculating the repatriation period is contained in the Rules for the Implementation of Export-Import Currency Control in the Republic of Kazakhstan and for Residents to obtain Accounting Numbers for Export and Import Contracts, approved by Resolution No. 42 of the Board of the National Bank of the Republic of Kazakhstan dated February 24, 2012 (hereinafter referred to as the Rules). According to subparagraph 2) of paragraph 5 of these Rules, the term of repatriation is changed by specifying in the application an arbitrary form of a new term of repatriation in the case of a document on amendments and (or) additions to the contract, which confirms the occurrence of circumstances affecting the terms and conditions of performance of obligations by the parties to the contract. A copy of the supplementary agreement concluded between LLP "Zh" and a non-resident dated September 27, 2012 to the agreement dated July 01, 2009 on extending the period of repatriation for 360 days on invoices for goods in the amount of 48 577.6 US dollars and 51 636 US dollars in connection with the investigation conducted by the Hong Kong police was submitted to the court of Appeal. In addition, the case file contains copies of documents indicating that the partnership applied to the judicial authorities of Hong Kong due to non-fulfillment by a non-resident of obligations to supply goods. Copies of documents confirming the acceptance by the Bank of the contract registration documents on the extension of the deadline for the repatriation of foreign currency are attached to the protest. From the letter of the Karaganda branch of BTA Bank JSC dated June 19, 2013, it follows that on March 27, 2013, the deadline for repatriation was changed, which amounted to 540 calendar days according to the additional agreement dated September 27, 2012 to the agreement dated July 01, 2009. On July 03, 2013, the Karaganda branch of the State Institution "National Bank of the Republic of Kazakhstan" LLP "Zh" was brought to administrative responsibility under part 6 of Article 180 of the Administrative Code with a penalty in the form of a warning for late provision of information and documents confirming the occurrence of circumstances that affect the terms and conditions of repatriation of national and foreign currency. The authorized body found that the supplementary agreement dated September 27, 2012 was submitted to the Contract Registration Bank only on May 06, 2013, in violation of paragraph 10 of the Rules, which provides for the submission of relevant documents no later than the last day of the month of the expiration of the repatriation period, that is, in this case, December 31, 2012.
These circumstances indicate that there are no legal grounds for bringing the partnership to administrative responsibility under Article 187 of the Administrative Code. In accordance with sub-paragraphs 1) and 2) of Article 665 of the Administrative Code, the inconsistency of the conclusions of a judge or official with the factual circumstances of the case set out in the decision on an administrative offense, the evidence examined during the examination of the protest, and the improper application of the law on administrative responsibility are grounds for revoking the decision on an administrative offense. In this regard, the acts that have taken place are subject to cancellation with the termination of proceedings on an administrative offense in accordance with subparagraph 2) of part 1 of Article 580 of the Administrative Code.
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