The taxation of nonresidents - the certificate of rezidenstvo, Art. 219 of item 4

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

of June 7, 2013 No. HK-13-55-4256

application of the copy of the certificate of residence certified by the notary of foreign state is illegal without carrying out the corresponding legalization

To letters: ND of Almaty No. ND-06-08-11973 of 07.10.2011,

No. ND-07-02-16738 of 22.11.2011,

ND on the Kostanay Region No. SD-KBB-05/10226 of 25.12.2011.

The Tax Committee of the Ministry of Finance of the Republic of Kazakhstan in connection with the arriving questions concerning distribution of regulations of the Convention "About Legal Assistance and Legal Relations on Civil, Family and Criminal Cases" signed by State members in Chisinau of 07.10.2002, and ratified by the Law of the Republic of Kazakhstan of March 10, 2004 No. 531 (further - the Chisinau Convention), on the tax relations, reports the following.

Regulations of the Tax code regulate questions of application of provisions of the international treaty on avoidance of double taxation and prevention of evasion from the taxation of the income or property (capital), one of the parties of which is the Republic of Kazakhstan, in particular, they are directed to realization of provisions of the Convention on avoidance of double taxation and prevention of evasion from the taxation of the income or property (capital).

According to Items 1, 3 articles 212 of the Code "About taxes and other obligatory payments in the budget" (further - the Code) the tax agent has the right to independently apply release from the taxation in case of payment of the income to the nonresident or in case of reference of the added, but not paid income of the nonresident on deductions if such nonresident is resident of the country with which the international treaty is signed. The international treaty is applied on condition of representation by the nonresident to the tax agent of the document confirming residence, conforming to requirements of items 4 and the 5th article 219 of the Code.

According to Items 4, of the 5th article 219 of the Code the document confirming residence of the nonresident represents the official document, confirmatory that the nonresident - the receiver of the income is resident of the state with which the Republic of Kazakhstan signs the international treaty. The document confirming residence of the nonresident is certified by competent authority of foreign state which resident is the nonresident - the receiver of the income.

If other is not established by this Item or the international treaty which participant is the Republic of Kazakhstan, the sign and seal of the body which certified the document confirming residence of the nonresident, and also the sign and seal of the foreign notary in case of the notarial attestation of the copy of the documents specified in subitems 1), 2) and 4) of Item 1 of this Article are subject to diplomatic or consular legalization according to the procedure, established by the legislation of the Republic of Kazakhstan.

In view of the specified Code provisions, questions connected with confirmation of residence for the purposes of the taxation will be regulated within the tax legislation or the international treaty raising the tax matters and ratified by the Republic of Kazakhstan.

In turn, provisions of the Chisinau Convention provide that it is signed between Contracting parties proceeding from the aspiration to provide to citizens of each of Contracting Parties and other persons living on its territories, reliable legal protection of their personal, property and non-property rights in the territories of all Contracting Parties, attaching importance to development of cooperation in the field of rendering justice of legal assistance by organizations on civil, family and criminal cases.

According to Item 3 of article 1 of the Chisinau Convention the term "civil cases" used in this Convention includes also the cases concerning resolution of economic disputes.

Article 12 of the Chisinau Convention provides that documents which in the territory of one of Contracting Parties are issued or attested competent organization or specially on that the authorized person within its competence and in the established form and are sealed by official, are accepted in the territories of all other Contracting Parties without kakogolibo the special certificate. Documents which in the territory of one of Contracting Parties are considered as official documents use evidential force of official documents in the territories of other Contracting Parties.

Therefore, regulations of the Chisinau Convention are applicable only within legal assistance on civil, family and criminal cases.

In this connection, application of provisions of article 212 of the Tax Code based on the provided copy of the certificate of residence certified by the notary of foreign state is illegal without carrying out the corresponding legalization according to the procedure, established by the legislation of the Republic of Kazakhstan.

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