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

of May 5, 2010 No. HK-08-22/5205

The Tax Committee of the Ministry of Finance of the Republic of Kazakhstan in connection with the arising questions concerning application, for the purpose of return of excess of the VAT, the risk management system (RMS), stipulated in Article 625 Codes of the Republic of Kazakhstan «About taxes and other obligatory payments in the budget» (Tax code), to the letter of MF RK Oil Company of March 27, 2009 No. CK-08-22/2758 (further - the letter) informs the following.

According to article 625 of the Tax Code, the RMS it is based on risks assessment and includes the measures developed and (or) applied by bodies of Tax Service for the purpose of identification and the prevention of risk. Risk the probability of non-execution and (or) incomplete execution of the tax liability by the taxpayer (tax agent) which could is recognized and (or) can cause damage to the state. On the basis of results of risks assessment the differentiated application of forms of tax control is performed, one of forms of which is tax audit.

In this connection, and also for the purpose of ensuring more effective use of available resources by consideration of question of return of excess of the VAT it is necessary to be guided by the following.

In case of receipt from the payer of the VAT of the requirement (the tax statement) about return of excess of the VAT the tax authority according to provisions of the tax legislation needs to begin procedure of conducting thematic tax audit for confirmation of reliability of the VAT amounts shown to return.

At the same time, indicators of activities of the payer of the VAT which provided the requirement (the tax statement) about return of excess of the VAT are subject to assessment with use of criteria of the RMS on the VATes given in appendix 1 to this letter.

If the result of the specified assessment will appear equal thirty five and more points from the total amount of points, the tax authority needs to create the analytical report «Pyramid on Suppliers» (further - the analytical report) on suppliers of goods, works, services.

At the same time, it should be noted that if the result of the specified assessment will appear below threshold value, but the signs of tax avoidance falling under the schemes provided in appendices 2-4 to this letter, tax authority are seen in activities of the taxpayer it is necessary to create the analytical report on suppliers of goods, works, services.

Signs of tax avoidance come down, including to the following:

use of persons performing doubtful transactions for creation of dummy expenses and receipt of the right to offsetting of the VAT without the corresponding movement of goods, works, services;

use of persons performing doubtful transactions for the purpose of increase in value added of goods, respectively, increase in debit balance on the VAT.

If when forming the analytical report the supplier who is the taxpayer is established: consisting on monitoring of large taxpayers; making self-produced goods, including налогоплательщиком-сельхозтоваропроизводителем; performing activities within the contract for subsurface use, - the tax authority stops further forming of the analytical report on suppliers of such «taxpayer».

In case of identification by results of the analytical report at suppliers of goods, works, services of violations of the tax legislation, return of the shown amount of excess of the VAT should be made within the amount, falling on suppliers on whom violations of the tax legislation are not established.

Return of the remained VAT amount should be made in process of elimination of violations.

Goes for management in work.

Appendix: on 4 sheets - criteria of the VAT RMS, the scheme of tax avoidance.

Appendix 1

The criteria of System risk managements which are subject to use by bodies of Tax Service by consideration of return of excess of TsDS