The court gave an incorrect assessment of the actions of the tax authority in making a decision to recognize as unfulfilled the notification of the elimination of violations identified by the state revenue authorities based on the results of desk control.
CHSI T. appealed to the court with a statement to the tax authority declaring the decision of August 5, 2020 illegal. The decision of the court No. 2 of Petropavlovsk, North Kazakhstan region, dated September 29, 2020, denied the application. By the decision of the Court of Appeal of December 25, 2020, the court's decision remained unchanged. By the decision of the Court of cassation of May 12, 2021, the judicial acts were canceled. A new decision has been made to satisfy the application of CHSI T. The actions of the Russian State Institution "UGD for the city of Petropavlovsk of the Department of State Revenue for the North Kazakhstan region" in making a decision dated August 5, 2020 on notification dated June 8, 2020, were recognized as illegal. It follows from the case file that the tax authority conducted desk control of tax reporting on the form 240 00 for 2018 in respect of CHSI T., according to which the income of CHSI for 2018 amounted to 5,226,173 tenge, however, according to the tax reporting, the declared income is 4,204,960 tenge. At the same time, the amount of the deviation amounted to 1,021,213 tenge, therefore, the tax authority concluded that the tax amounts were incorrectly calculated in the actions of the CSI, and issued a notification to CSI T. on the elimination of violations. On July 20, 2020, a written explanation was given to the notification of the tax authority according to the submitted list of debtors. Based on the results of the review of the explanation by the tax authority on August 5, 2020, it was decided to declare the notification unfulfilled, with reference to the fact that the applicant had not fully eliminated the violation. The local courts, having recognized that the submitted by CHSI T. The explanation does not meet the requirements of subparagraph 2) of paragraph 2 of Article 96 of the Tax Code, since it did not provide documents confirming the payment of the IIT from the income received in enforcement proceedings against S., N., Z., and in respect of some debtors there were no documents confirming the explanation of enforcement proceedings, the application was refused.
The court gave an incorrect assessment of the actions of the tax authority in making a decision to recognize as unfulfilled the notification of the elimination of violations identified by the state revenue authorities based on the results of desk control.
In addition, the court pointed out that after applying to the court on August 21, 2020, the applicant submitted additional tax statements of form 240.00 for 2018, in connection with which the order to suspend spending operations on bank accounts was withdrawn, and an opinion was issued confirming the results of desk control. The Board considered that the methods specified in subparagraph 2) of paragraph 2 of Article 96 of the Tax Code for the taxpayer to execute notifications on the elimination of violations identified by the results of desk control are exhaustive. According to paragraph 19 of the NP "On Judicial Practice of applying Tax Legislation", when a taxpayer challenges actions and acts of state revenue bodies related to non-fulfillment of a notification based on the results of desk control, the court verifies the compliance of explanations with the requirements of tax legislation. When considering such civil cases, taking into account the above-mentioned rule of the Tax Code, it is necessary to resolve the issue of the legality of the grounds indicated in the notifications without verifying their validity on the merits. Otherwise, the results of future tax audits will be predetermined, including an unscheduled thematic audit on the issue of non-compliance with the notification based on the results of desk control. By virtue of paragraph 4 of Article 96 of the Tax Code, a decision to declare a notification unfulfilled is taken by the tax authority only if the taxpayer violates the form and deadline for the execution of the notification established by subparagraph 2) paragraph 2 of Article 96 of the Tax Code. In this case, the applicant submitted an explanation in the prescribed form and within the time limits provided for in subparagraph 2) paragraph 2 of Article 96 of the Tax Code, therefore, the notification is considered fulfilled by virtue of the specified norm.
At the same time, the tax authority had no legal grounds for making a decision to declare the notification unfulfilled without conducting an appropriate tax audit. According to paragraphs 1, 4 of Article 8 of the Tax Code, the conscientiousness of the taxpayer's actions to fulfill his tax obligation is assumed. A violation of the tax legislation of the Republic of Kazakhstan committed by a taxpayer must be described during tax audits. Substantiation of arguments and disclosure of circumstances indicating a violation of the tax legislation of the Republic of Kazakhstan is the responsibility of the tax authorities. In this case, the issue of the possibility of actually providing services and performing work is subject to resolution only during the tax audit, but not within the framework of desk control. On August 21, 2020, additional tax statements of form 240.00 for 2018 were submitted to the CSI in order not to violate the rights of third parties in enforcement proceedings, and therefore the tax authority revoked the order to suspend spending operations on bank accounts. If the applicant agreed to the notification, she had to submit tax reports within thirty business days from the day following the day of delivery (receipt) of the notification, that is, until July 23, 2020.
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