of June 18, 2004 No. 4
About application by courts of the legislation on withdrawal of income gained when implementing business or other activity without license
For the purpose of uniform application in court practice of the legislation of the Republic of Kazakhstan on withdrawal of income gained by persons when implementing business or other activity without license, the plenary session of the Supreme Court of the Republic of Kazakhstan decides:
1. Draw the attention of courts that according to Item 1 of article 28 of the Law of the Republic of Kazakhstan of May 16, 2014 "About permissions and notifications" (further - the Law) to licensing separate types of activity or actions (transactions) in the spheres provided in subitems with 1) on 27) of Item 1 of this Article are subject to No. 202-V.
The exhaustive list of type and subspecies of activities for which implementation person shall obtain in accordance with the established procedure the license, is provided in APPENDIX 1 to the Law.
2. According to the subitem 2) of Item 1 of article 3 of the Law for implementation of activities or actions (transactions) without license of person bear stipulated in Article 463 Codes of the Republic of Kazakhstan about administrative offenses (further - the Administrative Code) the administrative responsibility or stipulated in Article 214 Criminal Codes of Kazakhstan criminal liability.
3. For implementation by person of activities without license 41, 45 Administrative Code in the form of additional administrative punishment can confiscate court according to Articles not only the objects belonging to this person on the property right and which were the tool of making of administrative offense but also income gained by person as a result of making of such offense. The specified objects and the income can be confiscated if it is provided by the sanction of the relevant article of the Special part the Administrative Code.
4. No. 11 is excluded by the normative Resolution of the Supreme Court of the Republic of Kazakhstan of 25.11.2016.
5. It is necessary to understand machines, devices, machines, mechanisms and other devices, and also raw materials (semifinished products) which are directly applied by person when making administrative offense as the objects which were the tool of making of the administrative offense connected with implementation of business or other activity without license.
6. It is necessary to understand income gained from sales of goods (works, services) for the entire period of implementation of such activities as income gained from implementation of business or other activity without license. It is necessary to include in structure of the income also the cost of the realized goods (works, services) but which are not paid by day of creation of the protocol on administrative offense.
If from income gained from business or other activity without license taxes, then the size of the income which is subject to confiscation were paid decreases by the amount of the paid taxes.
7. Draw the attention of courts that according to article 30 of the Law the license and (or) appendix to the license or motivated refusal in their issue are issued by the licensor no later than fifteen working days, except for licenses and (or) appendices to the license in the field of use of atomic energy, to the financial sphere and activities connected with concentration of financial resources, education in the field of hydrocarbons. The list of the documents attached by the licensee to the statement is specified in article 29 of the Law and is not subject to extensive interpretation.
If in the specified time the license to the applicant is not granted or the motivated answer about refusal in licensing on the bases specified in Item 1 of article 32 of the Law is not given, then income gained by it after the expiration of the specified term cannot be considered as income gained from license-free activities. Such income of confiscation is not subject.
At the same time income gained by physical person and legal entity from the beginning of the actual implementation of activities before the expiration of issue by the licensor of the license, it is necessary to consider as income gained from license-free activities.
8. The protocol on administrative offense constituted by the official of authorized state body for implementation of business or other activity without license, shall meet the requirements specified in the article 803 Administrative Code.
It is necessary to attach to the protocol not only the list of the objects which were the tool of making of administrative offense with indication of their individual signs and cost, but also data on income gained by person when implementing business or other activity without license.
The cost of the objects which were the tool of making of administrative offense is determined by market value, in necessary cases with attraction according to the Law of the Republic of Kazakhstan of January 10, 2018 No. 133-VI "About estimative activities in the Republic of Kazakhstan" the appraiser.
The size of income gained by person when implementing business or other activity without license is specified in the act of tax audit or other document of body which officials are authorized to constitute the protocol on administrative offense for implementation of such activities.
9. According to article 4 of the Constitution of the Republic of Kazakhstan this normative resolution is included the law in force, is obligatory and becomes effective from the date of official publication.
Chairman of the Supreme Court of the Republic of Kazakhstan
Judge of the Supreme Court of the Republic of Kazakhstan, secretary of plenary meeting
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