of February 11, 2011 No. HK21-28/1511
The Tax Committee of the Ministry of Finance of the Republic of Kazakhstan, reports the following.
1. Whether legal entities have the right to accept temporary financial aid (returnable loan) from physical persons if it has no permanent character for the legal entity,
On the first question
According to Item 3 of Article 715 of the Civil code of the Republic of Kazakhstan (further - RK Group) to legal entities and citizens forbids fund raising in the form of loan from citizens as business activity, and such agreements are recognized invalid from the moment of their conclusion.
This prohibition does not extend to cases when borrowers are the banks having the license of authorized state body for acceptance of deposits, and also for cases of acceptance of money in exchange for securities which release is registered in the procedure established by the legislation.
Thus, the above-stated regulation about fund raising prohibition in the form of loan from citizens as business activity extends to cases when the physical person provides cash loan to physical person or legal entity which transfers the received money to the third parties as loan for the purpose of income acquisition subsequently.
2. Whether means subitem 7) of item 2 of Art. 84 of the Tax code RK that the income arising in financial accounting of the legal entity who received temporary interest-free financial aid in connection with discounting on effective rate of percent for the purpose of the taxation as the income, including in the form of gratuitously the received services, is not considered,
On the second question
According to Item 1 of article 84 of the Tax Code the gross annual income of legal litsarezident consists of the income which is subject to obtaining (received) by this person in the Republic of Kazakhstan and beyond its limits during tax period.
The gross annual income of the legal nonresident person performing activities in the Republic of Kazakhstan through permanent organization consists of the income specified in article 198 of the Tax Code.
At the same time by the subitem 7) of Item 2 of article 84 of the Tax Code it is determined that for the purpose of the taxation as the income is not considered, including the income arising in connection with recognition of the obligation in financial accounting according to International Financial Reporting Standards and requirements of the legislation of the Republic of Kazakhstan about financial accounting and the financial reporting in the form of positive difference between the size actually subject to obligation fulfillment and the cost of this obligation recognized in financial accounting.
Based on stated, the income arising in financial accounting of the taxpayer in connection with recognition of the obligation on depreciated cost using effective rate of percent is not subject to inclusion in gross annual income of the taxpayer.
Vice-chairman A. Dzhumadildayev
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