The new arbitrator Who stands between state bodies and business
The National Chamber of Entrepreneurs of the Republic of Kazakhstan "Atameken" has repeatedly raised the issue on creation of the Appeal Commission for the examination of tax and customs disputes on the results of inspections.
We have a conflict of interests, since the audit and its examination were within the same system, the decision of the pretrial tax and customs appeal was not perceived by the entrepreneur as an independent one.
After a long and persistent discussion, the Appeal Commission of the Ministry of Finance began its work on 1st of July 2017. The commission consisted of the Chairman of the Commission, as well as six people, including the member of the Board of NCE RK "Atameken".
The work of the Commission will increase entrepreneurs' confidence in pre-trial resolution of disputes; provide an independent approach; reduce the number of litigations; allow the Committee of State Revenues to verify the compliance of the activities of territorial bodies.
Advantages of the Commission are the absence of a conflict of interest, that is, the vision of a position different from the tax authorities, and most importantly - the opportunity for an entrepreneur to personally be present when discussing problems with tax officials and customs officers.
Currently, the Commission received from the Ministry of Finance about 44 complaints: 32 on tax issues and 12 on customs issues. Most of the complaints of entrepreneurs about tax disputes are related to the additional charge of taxes on mutual settlements with suppliers in respect of which either criminal proceedings have been instituted, but there is no court decision or there is a court decision to recognize the registration as invalid.
Atameken repeatedly raised the question at all sites that it is necessary to determine the line between the transfer of cases from the criminal field to the civilian. If a criminal case is instituted, then it is necessary to complete the criminal process, i.е. to prove and reflect in the verdict of the court specific suppliers and specific fictitious transactions without the right to transfer them to civil proceedings.
Meanwhile, if the supplier and the buyer carried out fictitious transactions, then their guilt must be confirmed by a conviction of the court.
Often, state revenue bodies, in the criminal case, add taxes on mutual settlements with the supplier, in respect of which the criminal case has not been completed, i.e. the guilt or innocence of the supplier has not been proven in the criminal process.
The second case, when, in the presence of a court decision on recognizing the registration as invalid, the state revenue body carries out additional charging of corporate income tax, referring to the court's decision on the fact of the founder's testimony about his non-involvement in the creation of the legal entity.
However, during the inspection, the inspectors do not investigate the actual transaction, because before the registration was declared invalid, the legal entity functioned, actually entered into transactions, performed deliveries of goods, works and services, including in the public procurement. In other words, legal civil transactions were concluded and carried out.
But, in practice there was an opinion that the recognition of invalid registration of a legal entity automatically leads to the invalidity of all concluded contracts. This practice is contrary to the provisions of the law. The tax legislation fixes the fulfillment of the tax obligation in the form of payment of taxes, the tax authorities do not have the right to recognize the transaction as invalid without a court decision.
The Commission was established to generalize the application in practice of tax and customs legislation. Gives recommendations for carrying out explanatory work with entrepreneurs and state revenue bodies; the next step may be recommendations on amending the legislation and RLS. In addition, if violations are detected by the tax authority for poor-quality drawing up of an act of verification, the inspector can be brought to disciplinary responsibility.
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