The legislator referred to the confidentiality agreement as an agreement on the acquisition of information.
Thus, JSC "G" challenged the notification of the Russian State Institution "State Revenue Administration for the city of Stepnogorsk" on the results of the audit dated September 26, 2014 No. 673, including regarding the accrual of fees for reimbursement of historical expenses in the amount of 294 201 636 tenge, penalties in the amount of 155 283 383 tenge. By the decision of the Council of Ministers of the Akmola region dated April 16, 2015, the application in this part was satisfied. The Court of appeal found the conclusions of the court to be correct. The local courts proceeded from the prejudice of previous judicial acts. It was found that the subsurface use contract does not contain rules establishing the procedure for reimbursement of historical costs. Changes and additions regarding the payment of historical costs have not been made to the contract due to the need to extend it. There was no agreement between the parties on this issue. The Court of Cassation did not agree with the conclusions of the courts, and in its decision of August 31, 2016, it stated the following. A part of the amount of historical expenses in accordance with the legislation of the Republic of Kazakhstan on subsoil and subsoil use is payable to the budget in the form of a fee for the acquisition of geological information owned by the state.
The legislator referred to the confidentiality agreement as an agreement on the acquisition of information.
The remaining part of the amount of historical expenses is to be paid to the budget in the form of a payment to reimburse historical expenses. The obligation to pay a payment to the budget to reimburse historical costs arises from the date of conclusion of a confidentiality agreement between the subsurface user and the authorized state body for the study and use of subsurface resources, and for subsurface use contracts, including production sharing agreements, concluded before January 1, 2009, for which, as of January 1, 2009, no relevant agreements have been concluded. confidentiality agreements, but must be concluded under the terms of a subsurface use contract, - from the date of conclusion of the confidentiality agreement with the authorized state body that determines the amount of historical costs. The Law of the Republic of Kazakhstan dated December 5, 2013 No. 152-V "On Amendments and additions to certain Legislative Acts of the Republic of Kazakhstan on taxation" paragraph 1 of Article 12 of the Tax Code is supplemented by subparagraph 21-1), according to which a confidentiality agreement is a contract (agreement) between a subsurface user and an Authorized Body for the study and use of subsurface resources, on the basis of which geological information is provided for use. Such an agreement (agreement) includes, among other things, an agreement (agreement) on the acquisition of information. This provision has been in effect since January 1, 2009. An Agreement on the acquisition of information dated November 6, 2000 was concluded between the authorized State body and the Company. These Agreements determine that the total amount of historical costs incurred by the state for the geological study of the contract area and exploration of the above-mentioned deposits is 8,991,487 US dollars. The total fee for the use of geological information is 44,958 US dollars.
The fee for the use of geological information was paid after the signing of the Agreements, but the historical costs were not reimbursed. At the same time, the Agreements provide that the reimbursement of the remaining historical costs after payment of the amount specified in clause 1.2 of the Agreement will be determined by the terms of the contract with the competent authority. No such contracts have been concluded between the subsurface user and the competent authority. In such circumstances, the Judicial Board for Civil Cases of the Supreme Court concluded that the Company's obligation to pay historical costs arises from the date of conclusion of the Agreements, since the legislator determined that the information acquisition agreement relates to a confidentiality agreement.
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