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LETTER OF THE TAX COMMITTEE OF THE MINISTRY OF FINANCE OF THE REPUBLIC OF KAZAKHSTAN

of March 13, 2009 No. HK-08-17/2226

The Tax Committee of the Ministry of Finance of the Republic of Kazakhstan (further - MF RK Oil Company), having considered your letter concerning relations with the budget for excess of tax amount on value added (VAT), carried in offsetting, over the amount of the added VAT, developed till January 1, 2009, reports the following.

Concerning return and reflection of the VAT on the liquidated suppliers and on suppliers on whom answers on confirmation of VAT amount when conducting counter checks did not come.

«About enforcement of the Code of the Republic of Kazakhstan «About taxes and other obligatory payments in the budget» (Tax code) of December 10, 2008 No. 100-IV ZRK (further - the Law on introduction) is established by article 25 of the Law of the Republic of Kazakhstan procedure for relations with the budget for excess of the VAT carried in offsetting, over the amount of the added VAT, developed till January 1, 2009 (further - excess of the VAT).

According to Item 1 of the above-stated Article the excess of VAT amount which developed according to the declaration the accruing result for the end of accounting tax period becomes engrossed in reading on account of the forthcoming payments on the VAT.

According to the subitem 3) of Item 8 of article 25 of the Law on introduction the VAT return on the turnovers on realization assessed on zero rate is made within sixty working days from the date of receipt by tax authority of the tax statement for return of excess of the VAT provided by the payer of the VAT based on confirmation of reliability of the tax amounts shown to return according to the act of the tax audit which is carried out by tax authority or the conclusions of tax authority to the act of tax audit.

Besides, Item 10 of article 25 of the Law on introduction provides that the VAT return is not made within the amounts on which for date of completion of tax audit replies to the requests on conducting counter checks for confirmation of reliability of settlement with the supplier are not received and (or) if the supplier of the checked taxpayer does not eliminate the violations revealed when conducting counter checks on earlier sent inquiries and based on the received replies of authorized body about confirmation of reliability of VAT amounts on the large taxpayer who is subject to monitoring on earlier sent inquiries.

At the same time in the act of tax audit the basis of such non-return of the VAT is specified.

Proceeding from the above if at the time of conducting counter check the supplier stopped activities in connection with liquidation till January 1, 2009, or at the time of completion of tax audit the replies to the requests on conducting counter checks of VAT amount specified in the invoices which are written out by such suppliers did not arrive are not excluded from offsetting at the checked taxpayer and are not subject to return from the budget. At the same time the excess of the VAT formed on such suppliers becomes engrossed in reading on account of the forthcoming payments on the VAT and the additional declaration on the VAT for reduction of the VAT carried in offsetting is not submitted.

Concerning distribution of regulations of the subitem 3 of Item 15 of article 25 of the Law on introduction on the additional statement for VAT return.

According to the subitem 3 of Item 15 of article 25 of the Law on introduction the VAT return to the payer of the VAT who submitted the tax application for return of excess of VAT amount after twelve months after tax period in which revolutions on realization, liable to VAT on zero rate are made, and on which the tax application is submitted is not made.

According to explanation of the Prosecutor General's Office of RK of September 5, 2007 No. 7-13601-07-2 follows that the additional statement in essence is derivative of the main statement, i.e. legal relationship between tax authorities and the taxpayer on VAT return arise from the moment of giving of the main, but not the additional statement.

Due to stated, the restriction provided by the subitem 3 of Item 15 of article 25 of the Law on introduction for additional statements does not extend.

Vice-chairman of the Tax Committee

Ministries of Finance of the Republic of Kazakhstan A. Kipshakov

 

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