The practice of courts considering civil cases on claims of individuals against tax authorities

             At the stage of filing an application and accepting it for production, it is important to verify the legal status of the taxpayer.

Cases of this category, in accordance with article 27 of the Civil Procedure Code of the Republic of Kazakhstan, are subject to the jurisdiction of the district (city) court and equivalent courts.

In accordance with Article 150 of the CPC, it is necessary to comply with the requirements for the form and content of the statement of claim. After accepting the application for trial, the court, in accordance with Article 168 of the CPC, issues a ruling on the preparation of the case for trial.

The objectives of this stage are to determine the nature of the disputed legal relationship, the circumstances relevant to the proper consideration of the case, and to assist the parties in providing evidence.

In the text of the definition, the parties are invited to submit the necessary documents to the court by a certain specific date.

The parties are warned that all evidence and objections must be submitted by them before the case is considered on its merits.

The courts left the statements of claim without consideration on the basis of paragraphs 3), 6), 9) of Article 249 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter – CPC), that is, due to the failure of the parties to appear in court on a second summons, filing an application for the return of the statement of claim, signing and filing an application by a person who does not have the authority to its signing or presentation.

When accepting applications, the courts comply with the rules on the language of legal proceedings established by article 14 of the Civil Procedure Code of the Republic of Kazakhstan, which stipulates that civil proceedings are conducted in the official language, and if necessary, Russian or other languages are used in court proceedings along with the State language.

The language of the proceedings is determined by the court's ruling, depending on the language in which the statement of claim (application) is filed with the court.

The proceedings in the same civil case are conducted in the language of the proceedings established initially.

If, during the preparation for the consideration of the case in the court of first instance, it became clear that the plaintiff does not speak the language in which his representative filed the statement of claim (application), then, at the written request of the plaintiff, the court issues a ruling on changing the language of the proceedings.

In the case of claims by individuals against the tax authorities, it is necessary to highlight the issues that arise when considering cases of citizens' claims against the tax authorities for the release of property from seizure, since these issues are important for the proper formation of judicial practice.

This practice concerns cases in which the tax authority has issued a decision to restrict the disposal of property in relation to a taxpayer who has a tax debt.

Subsequently, the property is sold at auction and the buyer, who has fully fulfilled his obligations to pay the cost of the acquired property, cannot register ownership due to the presence of encumbrances based on the decision of the tax authority.

As judicial practice shows, buyers choose the following ways to protect their rights: they demand that the actions (inaction) of the tax authority to refuse to remove the encumbrance in the form of restrictions on the disposal of property be recognized as illegal, that is, they apply to the court in accordance with the rules of Chapter 27 of the CPC; they file a claim to exclude the property acquired at auction from the inventory or on the release of property from the seizure imposed by the tax authority. As judicial practice shows, such disputes are considered in the order of claim proceedings due to the following.

First of all, the decision of the tax authority to restrict the disposal of a taxpayer's property is legitimate.

The tax authorities can remove encumbrances from property restricted in accordance with Article 613 of the Tax Code only by canceling the decision on the grounds provided for in paragraph 10 of the same article (there are only 3 of them).

This list is exhaustive. Since the taxpayer's tax debt has not been repaid, and the property is registered with him, the tax authority has no grounds for revoking the decision to restrict the disposal of property.

The taxpayer himself has not challenged the decision of the tax authority in accordance with the procedure established by law and, accordingly, has not been recognized as illegal.

The tax legislation does not provide for other legal grounds for the removal of encumbrances by the tax authority. The filing of claims for the release of property from seizure and other encumbrances, including in the form of restrictions on the disposal of property, cannot be limited only to enforcement proceedings.

Moreover, it contradicts the provisions of articles 264 and 265 of the Civil Code of the Republic of Kazakhstan. As the study of judicial practice has shown, the courts correctly applied the norms of substantive law. So, Rychkov V.A. He filed a lawsuit against the State Revenue Administration for the M.Zhumabayev district of the Department of State Revenue for the North Kazakhstan region of the State Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan to remove the encumbrance from the Niva Chevrolet car, indicating that on May 16, 2015, he participated in an electronic auction for the sale of seized property, namely a car The Chevrolet Niva brand has the state registration number T 518 in 2008, and was recognized as the winner of the auction, which is confirmed by the auction protocol.

On May 27, 2015, he and the Russian State Institution "Department of Justice for the North Kazakhstan region" signed a contract for the sale of this car. According to the report on the electronic request for data from the automated accounting and control system of enforcement proceedings, encumbrances in the form of restrictions on the disposal of property due to the repayment of tax reports were imposed on the property acquired by him from the State Revenue Administration for the district of M.Zhumabayev.

In this regard, it is not possible for him to register ownership of this car in accordance with the procedure established by law, due to the existing encumbrances imposed by the State Revenue Administration for the district of M.Zhumabayev. By the decision of the M. Zhumabayev district court of the North Kazakhstan region dated September 11, 2015, the claim was satisfied, the property was released from arrest.

The court, satisfying the claim, concluded that in accordance with Part 1 of Article 188.260 of the Civil Code of the Republic of Kazakhstan, the right of ownership is the right of a subject recognized and protected by legislative acts to own, use and dispose of his property at his discretion, the owner has the right to claim his property from someone else's illegal possession.

The Chevrolet Niva 21230 gls car, state registration number T 518 in 2008, was purchased by A.V. Rychkov at an auction for the sale of seized property, as part of enforcement proceedings initiated on the basis of enforcement documents for the recovery of wage arrears from the Molodogvardeyskoye Limited Liability Company, respectively, the plaintiff is the legal owner of the specified car.

In this regard, the plaintiff's claims for the release of property from seizure are correct, since this property was transferred to the plaintiff by the bailiff to repay the debt and he is the owner of the vehicle.

According to the generalized category of cases, cases of recovery of damages from tax authorities also deserve attention.

Demina E.V. she filed a lawsuit with the State Institution "Department of State Revenue for the city of Aktau of the Department of State Revenue for the Mangystau region" of the State Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan" on appealing the actions of the state body, on recognizing the actions of the state institution "Tax Administration for the city of Aktau of the Tax Department for the Mangystau region" of the Tax Committee of the Ministry of Finance of the Republic of Kazakhstan"illegal, on recovery from the State Administration of State Revenue for the city of Aktau of the Department of State Revenue for the Mangystau region of the State Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan of the amount of damage in the amount of 104 781.41 tenge, on recovery of the amount of moral damage in the amount of 50,000 tenge and court costs, arguing that being an individual entrepreneur, on 17.01.2013 after conducted desk control, signing of the reconciliation report and closing of the bank current account, She filed an application for de-registration of an individual entrepreneur Demina E.V., in connection with the termination of her activities.

The individual entrepreneur Demina E.V. was not removed from the register by the tax authority within the time limits established by law. In addition, on 28.06.2013 and 26.03.2014, the tax authority issued orders to suspend spending operations on the deposit account of Demina E.V. in Temirbank JSC, in connection with which she suffered material damage in the amount of 104 781.41 tenge.

By the decision of the court No. 2 of Aktau, Mangystau region, Demina E.V.'s claim was partially satisfied, the defendant's actions to issue orders to suspend spending operations on a deposit account in the name of Demina E.V. in the Aktau branch of Temirbank Joint Stock Company were recognized as illegal, the amount of damage caused in the amount of 104 781.41 tenge was recovered from the defendant in favor of the plaintiff, payment of the state duty in the amount of 1,974 tenge, the claim regarding the recovery of moral damage in the amount of 50,000 tenge was refused.

The individual entrepreneur Demina E.V. was not removed from the register by the tax authority within the time limits established by law. In addition, on 28.06.2013 and 26.03.2014, the tax authority issued orders to suspend spending operations on the deposit account of Demina E.V. in Temirbank JSC, in connection with which she suffered material damage in the amount of 104 781.41 tenge.

By the decision of the court No. 2 of Aktau, Mangystau region, Demina E.V.'s claim was partially satisfied, the defendant's actions to issue orders to suspend spending operations on a deposit account in the name of Demina E.V. in the Aktau branch of Temirbank Joint Stock Company were recognized as illegal, the amount of damage caused in the amount of 104 781.41 tenge was recovered from the defendant in favor of the plaintiff, payment of the state duty in the amount of 1,974 tenge, the claim regarding the recovery of moral damage in the amount of 50,000 tenge was refused.

The court found that the actions of the defendant of the State Institution "Aktau City Tax Administration" grossly violated the rights and legitimate interests of Demina E.V., expressed in the red tape of the examination of the application of IP Demina E.V. dated 17.01.2013 on de-registration in connection with the termination of activities, by the defendant of the State Institution "Aktau City Tax Administration", the activities of IP Demina E.V. was terminated only on 05/20/2014.

In addition, by illegal actions of the defendant, a notice dated 04.01.2013 was sent to the plaintiff Demina E.V., on non-repayment of tax arrears, due to the presence of arrears in payment for the use of land in the amount of 12,544 tenge, and penalties of 1,580 tenge.

Whereas, according to the certificate of absence (availability) of immovable property dated 02/19/2015, there was no land plot owned by Demina E.V. for the period 01/04/2013.

In addition, on 08.02.2014, due to the unlawful actions of the defendant, notice No. 17000003500 dated 08.02.2014 was sent to the plaintiff Demina E.V. on the failure to submit tax reports f.910 for the 3rd quarter of 2013.

Meanwhile, in accordance with paragraph 1 of Article 282 of the Civil Procedure Code of the Republic of Kazakhstan, the court, having recognized the application as justified, makes a decision on the obligation of the relevant state body, local government body, public association, organization, official or civil servant to eliminate in full the violation of the rights, freedoms and legally protected interests of a citizen and a legal entity.

During the trial, it was established that by the defendant's orders to suspend spending operations No. 19403 dated 06/28/2013 and No.49337 dated 03/26/2014, spending operations on Demina E.V.'s savings account at Temirbank Joint Stock Company were suspended twice.

The defendant does not dispute that these orders were sent to Temirbank JSC in connection with the non-repayment of tax arrears for the use of land plots and the failure to submit tax reports f.910 for the 3rd quarter of 2013, plaintiff Demina E.V.

The court also correctly applied the norms of the Civil Code of the Republic of Kazakhstan in this case: paragraph 4 of Article 9, paragraph 1 of Article 921, paragraph 3 of Article 922, paragraph 1 of Article 917.

Cases involving the calculation of social taxes to persons registered as individual entrepreneurs who have not applied for a special tax regime, and therefore who have carried out the calculation and payment of taxes, as well as the submission of tax reports in accordance with the generally established procedure, also deserve attention.

Individual entrepreneurs also did not submit a tax application for suspension of their activities.

In these cases, it was not disputed that these persons had not actually carried out business activities for a number of years, but at the same time they had not stopped business activities in accordance with the procedure established by tax legislation.

Some courts have recognized that in the presence of the circumstances outlined above, a person should be required to pay social tax for himself, other courts have pointed out that in this case the violation is formal, the taxpayer having only one status of an individual entrepreneur without carrying out taxable activities cannot be regarded as the basis for his tax obligations.

The Supervisory Judicial Board, as a result of consideration of such cases, concluded that an individual entrepreneur, due to the requirements of tax legislation, under the circumstances set out above, must fulfill a social tax obligation accrued regardless of the amount of income actually received by the taxpayer, since the taxpayer has not ceased his activities and has not been removed from the register, he continues to remain a social tax payer..

The adoption of such decisions is dictated by the need to ensure the stability of tax policy and taxpayer discipline.

By its very nature, a tax liability is a core element of the tax system.

Tax liability under Article 26 of the Tax Code – the obligation of a taxpayer to the state arising in accordance with the tax legislation of the Republic of Kazakhstan, by virtue of which the taxpayer is obliged to register with the tax authority, determine the objects of taxation and (or) objects related to taxation, calculate taxes and other mandatory payments to the budget, draw up tax forms, submit tax forms, except for tax registers, to the tax authority on time and to pay taxes and other mandatory payments to the budget. The state, represented by the tax service authority, has the right to require the taxpayer to fulfill his tax obligation in full, and in case of non-fulfillment or improper fulfillment of the tax obligation, apply methods to ensure it and measures of enforcement in accordance with the procedure provided for by the Tax Code.

Thus, in fulfillment of a tax obligation, a taxpayer performs the following actions::

gets registered with the tax authority;

keeps records of taxable objects and (or) objects related to taxation;

calculates, based on the objects of taxation and (or) objects related to taxation, the tax base and tax rates, the amounts of taxes and other mandatory payments to be paid to the budget;

prepares and submits, with the exception of tax registers, tax forms to the tax authorities in accordance with the established procedure.;

pays calculated and accrued amounts of taxes and other mandatory payments to the budget, advance and current payments for taxes and other mandatory payments to the budget.

The objects of taxation and objects related to taxation are the property and actions with which the taxpayer has a tax obligation. An analysis of cases involving disputes between individuals and tax authorities has shown that the defendants in this category of cases, for various reasons, including mistakenly, include citizens in the register of taxpayers, as a result of which the latter have certain obligations to the state.

In case of disagreement, individuals apply to the court with appropriate claims. The specialized interdistrict Economic Court of the Almaty region has satisfied the claim of B.S. Zhanaev to the Yenbekshikazakh State Revenue Department for his exclusion from the register of taxpayers as a participant in the Baiterek peasant farming, since the defendant has not proved the validity of the registration of a peasant farm with the participation of the plaintiff.

In the practice of courts, when considering cases in this category, there have been cases of individuals suing the tax authorities for the obligation to recalculate the amount owed. Thus, the lawsuit filed by Zorina N.N. against the State Revenue Administration for the Turksib district of Almaty was dismissed by the court, since the plaintiff owned a real estate apartment on the basis of a certificate of inheritance registered with the Department of Justice, then the apartment was alienated according to the purchase agreement.

The practice of considering such disputes has the right direction, since the property income of an individual subject to taxation includes income from value gains from the sale of property.

Income from the increase in value from the sale of immovable property owned for less than a year from the date of registration of ownership and not used in business activities is subject to individual income tax.

The plaintiff was notified of the payment of taxes, which she did not appeal to the court in accordance with the procedure established by law. In addition, the tax legislation does not provide for a provision exempting pensioners and the disabled from paying property income.

When the courts considered cases in this category, there were cases of individuals' claims against the tax authorities for the obligation to remove existing tax obligations for a vehicle.

Thus, Sadvakasova B.S. applied to the court with a statement to the Tax Administration for the Bostandyk district of Almaty to appeal the decision of the Tax Administration for the Bostandyk district, on the obligation to remove existing tax obligations for the vehicle, since 2005, the plaintiff alienated the 1993 Ford Explorer car belonging to her, A.S. Bekturganov. in connection with this, a power of attorney was issued for him, for a period of three years, after the expiration of the power of attorney, the car was not reissued. He did not remove the purchased car from the register, did not register it with the Department of Internal Affairs of Almaty.

By the decision of the Karasai District Court of the Almaty region dated July 29, 2014, the plaintiff's claim to A.S. Bekturganov for recognition of the transaction was satisfied, the car exchange transaction was recognized valid by the court.

Since that time, the owner of this car has been A.S. Bekturganov. After the court's decision entered into force, the plaintiff applied to the Bostandyk district Tax Office with a request to remove the existing tax arrears on the above-mentioned vehicle from the plaintiff, but it was refused.

The court refused to satisfy the claim, since according to paragraph 1 of Article 155 of the Civil Code, transactions subject to state or other registration in accordance with legislative acts are considered completed after their registration.

366 of the Tax Code of the Republic of Kazakhstan, the objects of taxation are vehicles, with the exception of trailers, subject to state registration and registered in the Republic of Kazakhstan.

The court came to a reasonable conclusion that since the applicant is the owner of the car, the tax on vehicles is lawfully calculated, the tax administration for the Bostandyk district of Almaty carried out actions within its competence in accordance with the requirements of the legislation and in accordance with paragraph 26 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of application by courts of the norms of Chapter 27 of the CPC RK", the claim was denied.

The courts were guided by the following regulations when considering cases:

The Civil Code of the Republic of Kazakhstan,

The Civil Procedure Code of the Republic of Kazakhstan (hereinafter – CPC),

The Tax Code of the Republic of Kazakhstan,

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated February 27, 2013 No. 1 "On Judicial practice of tax legislation application"

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