of December 22, 2022 No. 9
About some questions of application by courts of the tax legislation
Having studied practice of application by courts of the legislation on taxes and other obligatory payments in the budget, and for the purpose of its uniform application the plenary session of the Supreme Court of the Republic of Kazakhstan decides to make the following explanations:
1. According to Item 1 of article 2 of the Code of the Republic of Kazakhstan "About taxes and other obligatory payments in the budget (Tax code)" the tax legislation is based on the Constitution of the Republic of Kazakhstan (further – the Constitution), consists of the Tax code, and also regulatory legal acts which acceptance is provided by the Tax code.
In case of application of regulations of the tax legislation of the Republic of Kazakhstan courts need to proceed from the values established in Item 1 of article 1 of the Constitution which according to Item 2 of article 12 of the Constitution determine content and application of the laws and other regulatory legal acts, including the Tax code and regulatory legal acts provided by it.
The normative legal orders of the Government of the Republic of Kazakhstan, normative legal orders of the head of authorized body in system of tax authorities, normative legal orders of the head of the Ministry of Foreign Affairs of the Republic of Kazakhstan, normative legal decisions of local representative bodies of areas, cities of republican value and the capital on establishment of rates of separate taxes and other obligatory payments in the budget belong to such regulatory legal acts.
According to article 10 of the Tax Code the regulatory legal acts regulating the tax matters are subject to obligatory official publication.
Of April 6, 2016 No. 480-V "About legal acts" (further – the Law on legal acts) follows from article 35-1 of the Law of the Republic of Kazakhstan that the necessary commencement provision of the normative legal orders of the head of authorized body stated above, the Ministries of Foreign Affairs of the Republic of Kazakhstan and normative legal decisions of the local representative bodies containing rules of law, including concerning the 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 by tax authority 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. To the tax relations connected with origin, execution or the termination of the tax liability of the taxpayer or obligation of the tax agent the regulatory legal acts operating at the time of origin, execution or the termination of the tax liability of the taxpayer or obligation of the tax agent are subject to application if only again enacted regulatory legal acts or their regulations have no retroactive force according to the legal act for introduction them in action. At the same time in all cases according to Item 5 of article 3 of the Tax Code of provision of the laws of the Republic of Kazakhstan, the establishing new types of tax and (or) payments in the budget raising the rates establishing new obligations, and also worsening situation of the taxpayer (tax agent) have no retroactive force.
According to the subitem 4) of Item 2 of article 19 of the Tax Code tax authorities shall perform explanations within the competence and give comments on origin, execution and the termination of the tax liability. Such explanations and comments, and also methodical recommendations, including authorized body, do not belong to regulatory legal acts. They are subject to assessment by court taking into account their compliance to regulations of the tax legislation.
Tax authorities perform the tax administration including system (set) of the measures and methods performed by them on taxation and the payments in the budget consisting including in implementation of tax control, application of methods of ensuring execution of the tax liability which is not fulfilled in time and measures of recovery by enforcement of tax debt and also rendering the state services and other forms of tax administration established by the Tax code.
Tax policy (set of measures for establishment new and cancellation of the operating taxes and payments in the budget, to change of the rates, taxation objects and objects connected with the taxation, tax base on taxes and payments in the budget) is performed by authorized body in the field of tax policy.
2. In case of application of regulations of the legislation for the purpose of the taxation it is necessary to proceed from stipulated in Item 3 articles 2 of the Tax Code of priority of its regulations.
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.
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