The principles of administrative procedures have been violated by the tax authority.
No.6001-22-00-6ap/2506, No. 6001-22-00-6ap/2506 (2) dated 05/25/2023
Plaintiff: C.E.
Respondent: Russian State Institution "State Revenue Department of the State Revenue Department" (hereinafter referred to as the Department)
The subject of the dispute: on the recognition as illegal and cancellation of the notification dated 03/17/2022
Review of the defendant's cassation complaint
PLOT:
Based on the declarations received from the plaintiff, the Office calculated and accrued the amount of taxes and payments to the budget for the period from January 1 to December 31, 2015.
On 17.03.2022, the Office issued a notice of repayment of tax arrears, according to which the plaintiff did not repay the total amount of tax arrears in the amount of KZT 1,043,890.33, a fine of KZT 803,503.21 for the following types of taxes and other mandatory payments to the budget:
101,102 IPN from income not taxed at the source of payment, in the amount of 206,405 tenge, penalty - 151 744.92;
103101 social tax - 171,312.69 tenge, penalty fee - 126,263.49 tenge;
105,101 VAT on goods produced, works performed and services rendered in the territory of the Republic of Kazakhstan - 666,172.64 tenge, penalty fee - 525,494.80 tenge.
Judicial acts:
1st instance: the claim was denied.
Appeal: the decision was overturned, a new decision was made. It was decided to recognize the notification of repayment of tax arrears in respect of individual entrepreneur Ch.E. dated 03/17/2022 as illegal and cancel it.
At the same time, a private ruling was issued to the State Revenue Department of the Russian State Institution on the revealed violations of the law in order to take appropriate measures and prevent such facts from happening in the future.
Cassation: the decision is upheld.
Conclusions: The Court of First Instance, rejecting the claim, concluded that the individual entrepreneur's tax liability ceases after the individual entrepreneur ceases to operate in accordance with the procedure established by the legislation of the Republic of Kazakhstan.
The entrepreneur's activity has not been terminated, and therefore the tax obligation is subject to unconditional fulfillment by the entity.
The Court of Appeal disagreed with the conclusions of the court of first instance, stating that the Administration had not provided evidence to the court of the legality of the administrative act.
In accordance with paragraph 1 of Article 2 of the Law of the Republic of Kazakhstan "On
electronic document and electronic digital Signature" dated January 7, 2003 No. 370-11 (hereinafter referred to as the Law), the legislation of the Republic of Kazakhstan on electronic document and electronic digital signature is based on the Constitution of the Republic of Kazakhstan, consists of this Law and other regulatory legal acts of the Republic of Kazakhstan.
According to Article 114 of the Tax Code, a notification is a notification sent by a tax authority to a taxpayer (tax agent) in hard copy or electronically about the need for the latter to fulfill a tax obligation, as well as the completeness of the calculation and timely payment of social payments, the control of which is entrusted to the tax authorities. The notification forms are approved by the authorized body.
Tax authorities' notifications are administrative acts because they give rise to legal consequences for obligated persons, contain state requirements to taxpayers (tax agents) for valid (adjusted) tax obligations (based on applicable legal norms and factual circumstances), establish specific duties and are subject to mandatory execution in accordance with the procedure and deadlines provided for by the Tax Code.
Article 78 of the CPC stipulates that an administrative act is adopted in written (paper and/or electronic) form, unless otherwise provided for by the laws of the Republic of Kazakhstan.
Article 1 of the Law provides that an electronic document is a document in which information is presented in electronic digital form and certified by means of an electronic digital signature (subparagraph 12)); an electronic digital signature is a set of electronic digital symbols created by means of an electronic digital signature confirming the authenticity of an electronic document, its affiliation and the immutability of the content (subparagraph 16)).
The Order of the Ministry of Finance of the Republic of Kazakhstan "On certain issues of Tax and Customs Administration" dated February 28, 2018 No. 146 approved the form of notification of tax arrears (Appendix 1) (hereinafter referred to as the Order).
Appendix 1 of the Order provides all the necessary details of the state revenue authority, registration number, date of issue, information about the taxpayer, surname and initials of the head, references to the provisions of the Tax Code, in turn, the notification is sent and delivered to the taxpayer's office and the electronic government portal in an automated mode, and confirms the accuracy of their formation, without An EDS Control is required when sending the system.
The procedure for using the electronic document management system (hereinafter referred to as EDMS) is set out in the Rules for Documentation, Document Management and the Use of Electronic Document Management Systems in Government and Non-governmental Organizations, approved by Decree of the Government of the Republic of Kazakhstan dated October 31, 2018 No. 703 (hereinafter referred to as the Rules).
According to paragraph 74 of the Rules, signed documents are registered and sent to the addressee(s) on the day of their signing (approval) or no later than the next business day, telegrams and telefaxes are sent immediately. The SED allows automatic assignment of the registration number and date of the document when signing an electronic document of the EDS.
Paragraph 76 of the Rules stipulates that before sending an electronic document, the correctness of its design is checked (the presence of mandatory details of the electronic document), including the procedure for verifying the electronic digital signature, verifying the positive result of the electronic digital signature and registration certificates.The responsibility for compliance of the contents of the electronic document with the original of the paper document is borne by the sending state body (organization).
Paragraph 1 of Article 7 of the Law stipulates that an electronic document that meets the requirements of this Law and is certified by an electronic digital signature of a person authorized to sign it is equivalent to a signed document on paper.
In cases established by the legislation of the Republic of Kazakhstan, an electronic copy of the document is provided for the provision of public services (paragraph 4-1 of Article 7 of the Law).
Thus, both an electronic document certified by an EDS and an electronic copy of the document can be used, reproducing the type and information (data) of the original document in electronic and digital form.
Therefore, when submitting a copy of a document in electronic and digital form, it is required to have the original document on paper with the seal of the organization and the signature of an official.
The notification does not contain an electronic digital signature, and the defendant also does not have an original paper copy of the notification as of the date of sending its copy to the plaintiff.
In accordance with part 4 of Article 6 of the CPC, violation of the principles of administrative procedures and administrative proceedings, depending on its nature and materiality, entails the recognition of administrative acts, administrative actions (inaction) as illegal, as well as the cancellation of judicial acts.
Article 7 of the CPC sets out the principle of legality, according to Part 1 of which an administrative body or official carries out administrative procedures within its competence and in accordance with the Constitution of the Republic of Kazakhstan, this Code and other regulatory legal acts of the Republic of Kazakhstan.
In accordance with part 3 of Article 13 of the CPC, an illegal administrative act adopted through the fault of an administrative body or official, as well as an illegal administrative act (inaction) committed through the fault of an administrative body or official, cannot entail burdensome consequences for a participant in an administrative procedure.
In the absence of a signature, both in electronic and paper media, the disputed notice cannot entail negative legal consequences for the plaintiff.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
