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RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE REPUBLIC OF UZBEKISTAN

of May 31, 2013 No. 8

About application by courts of the legislation on responsibility for tax avoidance and charges

(as amended on 19-12-2020)

Due to the enhancement of the tax legislation, and also the questions which arose in court practice in case of application of the legislation on responsibility for tax avoidance and charges, being guided by article 17 of the Law "About Courts", the Plenum of the Supreme Court of the Republic of Uzbekistan decides:

1. Draw the attention of courts that payment of the taxes established by the law and local charges is the constitutional obligation of each citizen (article 51 of the Constitution of the Republic of Uzbekistan).

Public danger of evasion from payment of the taxes and fees established by the law consists in intentional failure to carry out by taxpayers of obligation timely and in full to pay taxes and charges that attracts not cash receipt in the Government budget of the Republic of Uzbekistan.

2. Explain to courts that as tax avoidance and charges according to dispositions of part one of article 174 of the Code of the Republic of Uzbekistan about the administrative responsibility (further in the text - KOAO) parts one of article 184 of the Criminal code of the Republic of Uzbekistan (further in the text - UK) should understand intentional concealment, understating of profit (income) or other taxation objects, and other intentional tax avoidance and charges is equal.

Concealment of profit (income) or other taxation objects is intentional not reflection in the relevant documents of tax statements submitted to bodies of the State Tax Service, actual data of profit earning (income) and also violation of accounting treatment for its receipt for the purpose of concealment of information on availability of profit (income).

Understating of profit (income) or other taxation objects is expressed in entering into the documents of tax statements submitted to bodies of the State Tax Service, obviously not untrue information on the size of the taxation object corrected towards its decrease (reduction).

Other intentional tax avoidance and charges is expressed in the intentional acts of the taxpayer expressed in non-presentation in bodies of the State Tax Service of documents of tax statements or other documents which representation according to the tax legislation is obligatory, or in the acts made after submission of the tax report, directed to artificial creation of condition of insolvency for the purpose of tax avoidance and charges.

3. The disposition of part 1 of article 174 KOAO, part 1 of article 184 UK is blanket therefore for clarification of content of the concepts "income", "profit", "taxation objects", "taxes", "other obligatory payments" it is necessary to proceed from regulations of the Tax code of the Republic of Uzbekistan (further in the text - the Tax Code) existing at the time of act making.

According to part one of Article 17 of the Tax Code the following taxes are established:

1) value added tax;

2) excise tax;

3) income tax;

4) income tax;

5) tax for use of natural resources;

6) tax for use of water resources;

7) property tax;

8) land tax;

9) social tax.

In the territory of the Republic of Uzbekistan charges can be established. The procedure for introduction, calculation and payment of charges is determined by the Tax Code and other acts of the legislation.

The procedure for calculation and payment of motor transportation collection is regulated by the Tax Code.

Besides, other charges, such as collection for realization of alcoholic products, including for realization of alcoholic products by catering establishments, collection for retail trade by jewelry are settled by the law and other regulatory legal acts (for example, the Law of the Republic of Uzbekistan No. ZRU-589 of December 9, 2019 "About the Government budget of the Republic of Uzbekistan for 2020", the Presidential decree of the Republic of Uzbekistan No. UP-5721 of May 18, 2019 "About measures for the accelerated development of jewelry industry in the Republic of Uzbekistan").

4. For the intentional tax avoidance and charges (further in the text - taxes) made in the amount of, not constituting considerable (up to hundred basic settlement sizes) or for the first time in considerable size (from hundred up to three hundred basic settlement sizes), the administrative responsibility is established by the law (parts one and the second article 174 KOAO).

If person within year after application of administrative punishment on part two of article 174 KOAO makes similar act in considerable size again, there comes criminal liability on part one of article 184 UK.

It must be kept in mind that if as a result of intentional tax avoidance the damage in large or especially large size is caused, criminal liability comes respectively on the Item of part two or on part three of article 184 UK without observance of administrative pre-judiction (i.e. involvement of person to the administrative responsibility for tax avoidance is not required earlier).

5. For the correct qualification of action of person bodies of inquiry, investigation and courts in all cases shall find out carefully the size of the material damage caused by failure to pay taxes, meaning that in sense of article 184 UK it is necessary to understand not the size (cost) of the taxation object hidden or underestimated by person, and only the amount of taxes which should have been paid as it (without inclusion of the amounts of the financial sanction (penalty and penalty fee) applied for tax offenses).

6. The compulsory provision of approach of responsibility under article 174 KOAO, article 184 UK is intention availability on tax avoidance which can be expressed both in actions, and in failure to act.

Signs of intentional concealment, understating of profit (income) or other taxation objects are, in particular:

not reflection of the amount of revenue received from sales of goods (works, services) in registers of accounting;

replacement, counterfeit or destruction of the documents confirming sales of goods (works, services) or refusal in production of documents for check;

use of false source accounting documents;

absence in the warehouse or the place of sales of goods which are registered in accounting documents as not implemented;

storage of the goods which are not drawn up (not credited) by appropriately accounting or other documents;

illegal modification of the program of servicing of fiscal memory of cash registers;

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