Presumption of good faith
As a result of Atameken's work, the new Tax Code has a new principle - the principle of good faith of the taxpayer.
Its essence is that all ambiguities and inaccuracies in the tax legislation are interpreted in favor of business.
The essence of the business problem
Before the introduction of the principle of good faith in the Tax Code, there was an increase in the number of cases of unjustified and illegal additional tax assessments by tax authorities, which were subsequently supported by both tax appeals and courts. At the same time, an entrepreneur had to spend considerable time and money to prove his innocence in the absence of sufficient evidence from the tax authorities on the additional assessed amounts of taxes and fines.
At the same time, additional taxes and penalties occur under the same norms of tax relations that are subject to double interpretation or are not described.
In this connection, when drafting the new Tax Code, the Atameken NCE RK proposed to introduce the principle of good faith, which means that a person is considered innocent of a tax offense until his guilt is proven by the tax authority in the prescribed manner.
The decision on Atameken’s proposal
Thus, since January 1, 2018, the principle of good faith of the taxpayer has been in force in the tax legislation, which states that the entrepreneur shall be exempted from administrative liability and penalties if the tax authorities have withdrawn or changed the explanatory letter.
Also, a person is considered innocent of a tax offense until his guilt is proven by the tax authority, i.e. the formation of evidence in the course of the tax audit is carried out by the tax authority.
All uncertainties and unresolved issues of tax legislation are interpreted in favor of the taxpayer when considering a complaint on the notification of the results of the audit.
Result
Thus, the Appeals Commission of the Ministry of Finance with the representative of the Atameken NCE RK made a decision in favor of the entrepreneur using this principle during the consideration.
The problem for the entrepreneur was to adjust the calculated amounts of mineral extraction tax.
Thus, in the entrepreneur's complaint, which was filed with the Appellate Commission of the Ministry of Finance, it is stated that the provisions of the Tax Code until 2018, directly oblige taxpayers to make adjustments to the amounts of mineral extraction tax calculated on the basis of planned indicators during the first three quarters of the last tax period of the calendar year (4th quarter), regardless of the date of receipt of the right to subsoil use.
The entrepreneur notes that the tax legislation does not provide for the calculation of mineral extraction tax on the basis of the actual indicator of oil production in the tax periods of the first three quarters, and does not regulate the procedure for providing a certificate of planned volumes of crude oil production for taxpayers who received the right to subsoil use after January 20.
The entrepreneur additionally notes that the state budget, both when the taxpayer reflects the amounts of adjustment in the 4th quarter, and when the same amounts are reflected in the 3rd quarter did not suffer any losses.
Thus, taking into account that the final amount of mineral extraction tax is determined by the results of the reporting calendar year and the adjustment of the calculated amounts of mineral extraction tax for 1-3 quarters is made in the Declaration on mineral extraction tax for the 4th quarter, therefore, the results of the tax audit in terms of exclusion of the appropriate adjustment are unjustified.
At the same time, the decision states that the principles of taxation include the principles of the mandatory nature, certainty of taxation, fairness of taxation, the integrity of the taxpayer, unity of the tax system and transparency of the tax legislation of the Republic of Kazakhstan.
Provisions of the tax legislation of the Republic of Kazakhstan should not contradict the principles of taxation.
The principle of good faith of the taxpayer - when considering an appeal against the notification of the results of an audit, all uncertainties and unresolved issues of the tax legislation of the Republic of Kazakhstan are interpreted in favor of the taxpayer.
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