of June 29, 2017 No. 4
About court practice of application of the tax legislation
Due to the need of explanation of separate regulations of the tax legislation plenary session of the Supreme Court of the Republic of Kazakhstan
Of April 6, 2016 No. 480-V "About legal acts" (further - the Law on legal acts) follows from Item 1 of article 44 of the Law of the Republic of Kazakhstan that the necessary commencement provision of the normative legal orders of authorized body stated above, the Minister of Foreign Affairs of the Republic of Kazakhstan and normative legal decisions of the local representative bodies containing rules of law, including, the concerning rights and obligations of citizens, their state registration in judicial authorities is.
Courts by consideration of tax disputes have no right to apply the regulatory legal acts which are not corresponding to these conditions.
Courts should mean that the regulatory legal acts adopted concerning tax administration and enacted by the time of accomplishment of state revenues by body of action (failure to act) or pronouncement of the decision to them are subject to application in case of accomplishment of these actions (failure to act) or decision.
If the international treaty ratified by the Republic of Kazakhstan establishes other rules, than those which contain in the Tax code are applied rules of the specified agreement (Item 5 of article 2 of the Tax Code). According to Item 3 of article 4 of the Constitution the procedure and conditions of action in the territory of the Republic of Kazakhstan of international treaties which participant is Kazakhstan are determined by the legislation of the Republic.
3. According to item 4 of Article 1 of the Civil code of the Republic of Kazakhstan (further - group of companies) the civil legislation is not applied to the tax relations, except as specified, provided by legal acts. In this regard courts should differentiate the tax relations from the property relations regulated by the civil legislation.
In this regard recognition of the transaction invalid is the basis for adjustment of the amounts of the corporate income tax (further - KPN) and the VAT.
The transaction can be disputed on the bases provided by the Civil Code and other legal acts.
For the purposes of this resolution on invalidity of the transaction can witness, including, the arguments of body of state revenues confirmed with proofs about impossibility of real implementation by the taxpayer of transactions owing to lack of the corresponding assets, buildings, vehicles, material and manpower; about lack of economic sense of the considered transactions.
In case of permission of questions based on the ratio of terms of limitation period in claims for recognition of transactions invalid with tax terms, courts should be guided by the civil term of limitation period.
5. In case of submission of the claim for recognition invalid invoices, it is necessary to consider that invoices cannot be acknowledged as the transactions made in writing. The invoice can be one of proofs of transaction, but not the transaction.
In this regard adoption of such action for declaration it shall be refused according to the subitem 1) to part one of Article 151 of the Code of civil procedure of the Republic of Kazakhstan (further - GPK) and if the action for declaration is adopted in production of court and the civil case is initiated, proceeedings are subject to the termination based on the subitem 1) of Article 277 GPK.
At the same time, in practice there are situations when there are only invoices and they are taken into account by the taxpayer in case of execution of the tax liabilities. In such cases the transaction which is confirmed by availability of the invoice (invoices) shall be subject of contest. Therefore in case of the correct specifying of state revenues of subject of action by body and availability of sufficient body of evidence of invalidity of the transaction, it can be acknowledged that with all that it implies.
6. The making by the subject of private entrepreneurship of actions according to the statement of the invoice without the actual performance of works, rendering services, shipment of goods for the purpose of extraction of property benefit which caused major damage to the citizen, the organization or the state attracts criminal liability under article 216 of the Criminal Code of Kazakhstan (further - UK).
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