To recognize the refusal as illegal and force him to register the acceptance certificate of the built object by the owner himself
No. 6001-24-00-6ap/3063 dated April 08, 2025
Plaintiff: R.R.
Defendants: State Institution "Department of Architecture, Urban Planning and Land Relations" (UAGZO), a non-profit joint-stock company
Government for Citizens State Corporation (NAO)
The subject of the dispute:
to recognize as illegal the refusal of the defendant – UAGZO and to force him to register the acceptance certificate of the built object by the owner on his own;
to recognize as illegal the refusal of the defendant – NAO and to force him to register the act of acceptance of the constructed object by the owner independently
Review of the plaintiff's cassation complaint PLOT:
The real estate belongs to the plaintiff on the right of private ownership on the basis of the contract of sale of an apartment building with a land plot dated July 19, 2005. The land area was 0.1500 hectares, intended for the management of a personal subsidiary farm and a residential building. The state registration of ownership rights was carried out on July 19, 2005.
On March 10, 2021, at the request of the plaintiff, the above-mentioned land plot was divided. A land management project has been developed for a land plot with an area of 0.0225 hectares, coordinated with a branch of the NAO (registration authority) and approved by the UAGZO.
By the decree of the Akimat dated June 7, 2021, the purpose of the plaintiff's land plot, with an area of 0.0225 hectares, was changed to "maintenance
buildings and structures", an address has been assigned, which is also confirmed by the act on the land plot.
On September 5, 2022, the UAGSO issued to the plaintiff an architectural and planning assignment (APS) for the design of the "Construction of a seasonal car wash" facility.
On March 6, 2023, the UAGSO agreed on a preliminary draft.
On May 3, 2023, an act of acceptance of the built facility was drawn up and signed by the owner himself (Acceptance Certificate).
In response to the plaintiff's application dated December 19, 2023 to the NAO for state registration of the acceptance certificate on December 29, 2023, the plaintiff received a notification from the latter about the refusal of such registration. The NAO's refusal was based on the refusal of the UAGZO to register the plaintiff's Acceptance Certificate.
In turn, the UAGZO informed the NAO that it refuses to register the plaintiff's acceptance certificate, since, in accordance with paragraph 2 of Article 74 of the Law "On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan" (the Law on AGSD), the norms of this article cannot be applied if the provisions specified in paragraph 2 of Article 60 of this Law, changes to premises (individual parts of a building), as well as the construction and operation of the listed technically simple facilities infringe on the rights of other citizens or contradict state, public and (or) private interests.
Challenging these refusals of the NAO and the UAGSO, the plaintiff filed a lawsuit with the SMAS, arguing that they violate his rights and legitimate interests, since the grounds for refusing to register the UAGSO acceptance certificate contradict the law and factual circumstances.
Judicial acts:
1st instance: the claim is partially satisfied. Essentially, it was decided: to declare illegal the refusal of the UAGZO to register the acceptance certificate
The Self–service Seasonal Car Wash (hereinafter referred to as the Acceptance Certificate) is a self-service facility built by the owner and oblige him to register the act of acceptance of the built facility into operation by the owner.;
to refuse to satisfy the claim to the NAO for recognition of the illegal refusal and compulsion to register the act of acceptance of the built facility into operation by the owner on May 3, 2023.
Appeal: the decision of the court of first instance in this case has been changed, regarding the satisfaction of the claim for declaring illegal the refusal of the UAGZO to register the acceptance certificate and forcing it to register the above-mentioned acceptance certificate, the decision has been reversed and in this part a new decision has been made to dismiss the claim.
Cassation: the decision of the appeal was overturned, the decision of the court of first instance in this case was upheld.
Conclusions: having checked the conclusions of the courts of previous instances, the judicial board considered that the Court of Appeal had violated the objectives, principles and norms of sectoral and procedural legislation, which, due to its materiality, entails the cancellation of the SCAD decision appealed by the plaintiff-cassator in view of the following.
Firstly, the contested plaintiff's refusal of the UAGZO to register the acceptance certificate cites only one reason for refusal – in accordance with paragraph 2 of Article 74 of the AGSD Law, the norms of this article cannot be applied if the changes to the premises (separate parts of the building) specified in paragraph 2 of Article 60 of this Law, as well as construction and operation The listed technically non-complex objects infringe on the rights of other citizens or contradict state, public and (or) private interests.
Based on the content and meaning of this refusal of the UAGZO, it is not clear how, which specific citizens and their rights will be infringed upon by registration of the acceptance certificate, or how this will contradict state, public and (or) private interests.
At the same time, an administrative act (an administrative action in the dispute under consideration) must be clear to understand, ensure uniform application, and exhaustively define the circle of persons to whom it applies (part two of Article 79 of the CPC applies by analogy with the law). The refusal of the UAGZO, disputed by the plaintiff, does not meet these requirements. This was not taken into account by the court of appeal.
Secondly, the defendant and the SCUD argued that the plaintiff's facility has a building component of metal structures and concreting (foundation), respectively, the PSA should have been developed and the facility does not meet sanitary and epidemiological requirements. These arguments cannot be accepted, since they are not specified in the UAGZO's contested refusal, whereas according to the third part of Article 129 of the CPC, the defendant can only refer to those justifications mentioned in the administrative act (this provision is applied by analogy with the law).
Thirdly, as indicated above, by the decree of the Mayor's Office of the city dated June 7, 2021, the purpose of the plaintiff's land plot (0.0225 ha, 22-330-042-213) was changed to "maintenance of buildings and structures", the UAGSO issued the plaintiff with an APZ for the facility and agreed on its draft design. At the same time, the draft agreed by the UAGZO indicated the distance between the plaintiff's facility and his apartment building, as well as other facilities located along the perimeter of the aforementioned land plot.
In the context of these circumstances of the case, it is legitimate for the SMAS to conclude that the contested refusal of the UAGZO cannot be recognized as legitimate, accordingly, this court reasonably applied the principle of protecting the plaintiff's right to trust to the actions of the defendant, who issued the plaintiff with the APZ and agreed on the draft design of its facility.
In the aggregate, taking into account the legality of the conclusions of the court of first instance, implementing the tasks and principles of administrative justice, including such as proportionality and fairness, the judicial board considered it necessary to satisfy the plaintiff's cassation appeal and cancel the decision of the court of appeal appealed by the plaintiff-cassator due to improper application of the norms of substantive and procedural legislation, as well as violations of the tasks and the principles of administrative legal proceedings, with the decision of the SMAS remaining in force.
by registering with the tax authorities and/or submitting tax reports in accordance with Article 96 of the Tax Code and/or paying taxes and payments to the budget.
Paragraph 2 of Article 96 of the Tax Code provides for two ways of executing notifications on the elimination of violations identified by the results of desk control by the taxpayer:
in case of consent, by eliminating the identified violations.;
in case of disagreement, by providing explanations on the violations identified on paper or electronic media.
The notification is executed by the taxpayer (tax agent) within thirty working days from the day following the day of its delivery (receipt).
This means that the submission of an explanation of disagreement with the notification is recognized as the execution of the notification and terminates its validity.
In this case, the tax authority may decide to recognize the notification as unfulfilled only in cases where:
the explanation does not comply in form and content with the requirements of subparagraph 2) of paragraph 2 of Article 96 of the Tax Code;
An explanation is not subject to submission by the taxpayer in the cases specified in paragraph 3 of Article 96 of the Tax Code, and when violations have not been eliminated.
The above list of grounds for recognizing the notification based on the results of desk control as unfulfilled is exhaustive. That is, the tax authority, evaluating the explanation, checks it for compliance with the law in form and content, and also checks compliance with the deadline for its submission.
Meanwhile, the explanation provided by the plaintiff corresponds in form and content to the requirements of subparagraph 2) of paragraph 2 of Article 96 of the Tax Code, submitted in compliance with the deadline established by law. Therefore, the conclusions of the courts on the refusal to satisfy the claim to challenge the decision are erroneous, since within the framework of this administrative procedure, the plaintiff executed the notification by providing an explanation, and the defendant had no legitimate grounds for making a decision to recognize the notification.
unfulfilled.
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