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ORDER OF THE MINISTRY OF STATE REVENUES OF THE REPUBLIC OF KAZAKHSTAN

of October 8, 1999 No. 1222

About measures for identification and prevention of the facts of deliberate and false bankruptcy

(as amended on 21-03-2001)

For the purpose of prevention of the facts of deliberate and false bankruptcy I order:

1. Approve the enclosed Recommendations about identification and practice of deliberate and false bankruptcy.

2. To department of internal work (Amanzholov D. M.) to bring the approved Recommendations to departments, Committee of tax police and its territorial authorities, JSC Agency on Reorganization and Liquidation of the Companies, territorial tax authorities for management.

3. JSC Agency on Reorganization and Liquidation of the Companies (Nukushev A. G.) and to chairmen of the Tax Committees on areas, Astana and Almaty to transfer materials on regions of deliberate and false bankruptcy to law enforcement agencies for initiation of criminal cases by them.

4. it is excluded according to the order MGD RK of 21.03.01 N 338

5. On chairmen of the Tax Committees on areas and Astana and Almaty, to directors of branches of JSC "Agency on Reorganization and Liquidation of the Companies" of areas and Astana and Almaty at meetings of Coordination council of territorial authorities of the Ministry of state revenues of the Republic of Kazakhstan to report on the carried-out work on identification and prevention of the facts of deliberate and false bankruptcy.

6. To impose control of execution of this Order on the acting vice-minister Bayzhanov U. S.

7. This Order becomes effective from the date of signing.

 

Acting minister of MGD RK 3. Kakimzhanov

Approved by the order of the minister of state revenues of the Republic of Kazakhstan on October 8, 1999 No. 1222

Recommendations about identification and prevention of false and deliberate bankruptcy

Introduction

Insolvency proceedings are carried out for the purpose of satisfaction of requirements of creditors and release from debts of the poor debtor not capable to meet requirements of creditors for monetary commitments, including requirements but payment of the salary and tax payment, charges and other obligatory payments in the budget.

Practice of liquidation and bankruptcy of debtor enterprises and the analysis of their carrying out show that many of them can be considered as intentional bankruptcy. At the same time the company which began to be in financial difficulties makes alienation of the main part of the assets (property) for benefit of the faces tied by general interest with heads or owners (founders) of debtor enterprise which with remaining balance of property, settlings with creditors (tax authorities), usually illiquid and insufficient for carrying out, is recognized the bankrupt. Also cases of concealment of property or property obligations (requirements), destructions or falsifications of accounting documentation which are carried out in bankruptcy anticipation meet.

The liquidation procedure or bankruptcies is used as conditioning agent from responsibility for abuses in financial and economic activities of debtor enterprise and the announcement of the poor debtor free from debts for which officials bear subsidiary responsibility under the law.

The law of the Republic of Kazakhstan "About bankruptcy" (the Art. 6) provides the right of participants of insolvency proceedings to demand recognition invalid transactions and return of the property given by the debtor for the period up to one year before excitement of insolvency proceedings in drawing cases to interests of creditors of damage. Territorial tax authorities of the Ministry of state revenues and Agency on reorganization and liquidation of the companies (daleeagentstvo) need to use this provision of the law, attracting other state bodies to problems of false and deliberate bankruptcy, to participate actively in procedures of extrajudicial bankruptcy. To widely use mass media in the work.

The legislation of the Republic of Kazakhstan determines qualification of abuses in the field of bankruptcy proceeding from weight of legal and economic effects of committed offenses. These recommendations contain necessary methodological information for employees of Tax Service, specialists of the Agency and its branches, competitive and rehabilitation managing directors in determination and identification of signs of intentional bankruptcy and its qualification for the purpose of accountability and prevention of deliberate and false bankruptcy.

In practical activities territorial authorities of Tax Service and the Agency need to differentiate structures of industrial bankruptcy under the Law "About Bankruptcy" and the crime components in the field of bankruptcy provided by the Criminal Code of Kazakhstan. Absence of complete structure of criminal offense does not attract automatically lack of the violations provided by the Law "About Bankruptcy" on which acceptance of the above-named measures is necessary.

1. General provisions

1.1. Recommendations about identification and prevention of the facts of false and deliberate bankruptcy (further - Recommendations) are developed for the purpose of appendix of common efforts of bodies of Tax Service and the Agency for more complete satisfaction of requirements of creditors (according to the priority established by the law), suppression of penal acts during insolvency proceedings and the prevention of these offenses further.

1.2. Recommendations about detection of deliberate and false bankruptcy are based on provisions of the Civil code of the Republic of Kazakhstan, the Criminal Code of Kazakhstan, Law of the Republic of Kazakhstan "About bankruptcy" and the analysis of sales problems of the legislation on bankruptcy in the republic.

1.3. In Recommendations the following concepts are used:

deliberate bankruptcy - the intentional reduction of the debtor to insolvency made by the owner of its property or bodies of legal person debtor in private interests or interests of other persons;

false bankruptcy - obviously false appeal of body of the debtor or owner of its property to court or authorized body about recognition by his bankrupt for the purpose of false representation of creditors for receipt of delay or payment by installments of the payments which are due to creditors or discount from debts, and is equal for failure to pay debts in the presence at it to opportunity to meet requirements of creditors in full;

subsidiary responsibility - the accessorial liability of persons who along with the debtor answer to the creditor for proper execution of the obligation in the cases provided by the law or the agreement.

2. Information on deliberate and false bankruptcy

2.1. Information sources:

- documents of financial accounting and reporting on financial and economic activities of the company; the structure and quality of documents is determined by accounting standards and methodical recommendations of the Ministry of Finance of RK;

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