The inconsistency of the court's conclusions with the factual circumstances of the case was the basis for the cancellation of judicial acts and the adoption of a new resolution.
By the resolution of the Deputy Head of the State Revenue Department for the Auezovsky district of Almaty (hereinafter referred to as the department) dated June 23, 2016, D LLP (hereinafter referred to as the partnership) was brought to administrative responsibility under part 3 of Article 278 of the Code of Administrative Offenses of the Republic of Kazakhstan (hereinafter referred to as the Administrative Code) with a fine of 40% from the amount of excess of the actually calculated tax in the amount of 9,821,080 tenge. By the resolution of the specialized interdistrict Administrative Court of Almaty dated July 8, 2016, the above-mentioned resolution was canceled, the proceedings on the administrative offense case were terminated due to the absence of an administrative offense in the actions of the partnership provided for in Part 3 of Article 278 of the Administrative Code. The Court of first instance concluded that the actions of the partnership are subject to qualification not under part 3 of Article 278, but under Article 272 of the Administrative Code. The Specialized Judicial Board of the Supreme Court recognized the above conclusions of the court as unfounded in view of the following. The disposition of part 3 of Article 278 of the Administrative Code provides for liability for exceeding the amount of actually calculated corporate income tax for the tax period over the amount of calculated advance payments during the tax period in the amount of more than 20%, if this action does not contain signs of a criminal offense.
The inconsistency of the court's conclusions with the factual circumstances of the case was the basis for the cancellation of judicial acts and the adoption of a new resolution.
It should be noted that this administrative offense is formal and does not depend on the occurrence of harmful consequences, including the inability to calculate income in advance. The court found that according to the corporate income tax return (hereinafter referred to as the CIT), the partnership's total annual income for 2015 amounted to KZT 699,125,267. This amount was formed as a result of mutual settlements with JSC "N". At the same time, the main amount of sales was made before December 20, 2015 in the amount of 607 371 947 tenge or 87%, from December 21 to December 31 in the amount of 91 753 320 tenge or 13% of the total sales for 2015. In accordance with paragraph 8 of Article 141 of the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget", taxpayers are entitled during the reporting tax period to submit an additional calculation of the amount of advance payments under the CPN, with the exception of an additional calculation of the amount of advance payments under the CPN payable for the period prior to submitting the CPN declaration for the previous tax period. In this case, an additional calculation of the amount of advance payments under the CPN payable for the period after submitting the CPN declaration for the previous tax period is based on the estimated amount of income for the reporting tax period, and is presented for the months of the reporting tax period for which the deadlines for payment of advance payments under the CPN have not arrived. In compliance with the specified provision of the law, on January 20, 2015, the partnership submitted the tax reporting form (hereinafter referred to as TNF) 101.01 "calculation of the amount of advance payments on the tax return payable before the declaration" in equal installments for January, February and March, 500,000 tenge each for a total amount of 1,500,000 tenge. On April 8, 2016, TNF 100.00 "declaration on the CPN" in the amount of 26,052,699 tenge, and on April 19, 2016 - TNF 101.02 "calculation of the amount of advance payments on the CPN payable for the period after the declaration" in the amount of 0 tenge. Thus, the amount of CPI actually calculated by the partnership for 2015 amounted to 26,052,699 tenge, and the amount of advance payments was 1,500,000 tenge. Accordingly, the excess amount was 24,552,699 tenge or 99%. In such circumstances, there is an excess of the amount of the actually calculated CPI for 2015 over the amount of the calculated advance payments during 2015 in the amount of more than 20%. The Partnership could increase the advance payments by providing an additional calculation of the amounts of advance payments for the CPI due for the period after the submission of the CPI declaration for the previous tax period no later than December 20, 2015. However, it did not do this. In this case, the failure to provide an additional calculation of the amounts of advance payments, which resulted in an excess of the amount of the actually calculated CPI for the tax period over the amount of the calculated advance payments during the tax period in the amount of more than 20%, forms part 3 of Article 278, and not Article 272 of the Administrative Code. Considering that the partnership carried out settlements only with JSC on the basis of a previously concluded agreement, under which 87% of the amount was transferred before December 20, 2015, it was able to calculate advance payments during the tax period. In accordance with subparagraph 1) of Article 840 of the Administrative Code, the inconsistency of the court's conclusions on the factual circumstances of the case, as set out in the decision on the administrative offense case, with the evidence examined in the case, is the basis for the cancellation of the judicial act. Based on the above, the specialized judicial board of the Supreme Court lawfully overturned the decision of the court of first instance and issued a new decision to dismiss the application of D LLP for the cancellation of the decision of the State Revenue Department for the Auezovsky district of Almaty dated June 23, 2016. The protest of the Deputy Prosecutor General of the Republic of Kazakhstan is satisfied.
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