Counterparties may not themselves understand that they are dealing with a pseudo-enterprise

All systemic problems of entrepreneurship are always at the control of NCE RK "Atameken" and the Prosecutor General's Office of the Republic of Kazakhstan.

One of such problems was pseudo-entrepreneurship.

Pseudo-entrepreneurship is the creation of a private business entity, without the intention to carry out entrepreneurial activities, for the purpose of getting loans illegally or exemption from taxes, also concealment of prohibited activities and extraction of other property benefits.

The public intolerance to pseudo-entrepreneurship is expressed in the fact that businessmen do not have the intention to engage in entrepreneurial activity, despite the fact that they are legally registered. Thus, they cause considerable damage to the state's economy. The consequences of pseudo-entrepreneurship affect bona fide taxpayers.

Actions in cases of pseudo-entrepreneurship look quite officially from outside. They submit documents for state registration in compliance with the necessary procedure, a decision is made on registration and licensing. The persons who created the pseudo-enterprise have many transactions and sometimes even fulfill them partially, but this behavior is only a cover for actual goals. If at the time of creation of the commercial organization the person did not intend and in the future does not intend to carry out those types of activities that are specified in the constituent documents or in the obtained license, then there is an Article on pseudo-entrepreneurship.

After the recognition of persons guilty in creation of a pseudo-enterprise, the state revenue authorities send all contractors of these persons a notice on the exclusion of VAT from the offset. In fact, tax arrears are not collected from the scammers themselves, but from bona fide entrepreneurs. Almost any entrepreneur who has at least once contacted the pseudo-enterprise becomes a potential target for the state revenue bodies.

Counterparty – is one of the parties of the contract in civil law relations. Each of the partners, concluding the contract is considered a counterparty. A contractor can be called, for example, a contractor - a physical or legal person who undertakes to do certain work, according to the customer's instructions, receiving a reward for it.

Pseudo-entrepreneurship was a way of committing other acts that are prosecuted in compliance with the Criminal Code of the Republic of Kazakhstan - illegal receipt of a loan (Article 219), tax evasion (Article 245), property damage by deception (art. 195), etc. If to exclude them from Article 215 of the Criminal Code of Kazakhstan, then in fact there remains an act to create a legal entity without the purpose of engaging in business. The very fact of the creation of such a legal entity does not contain signs of a criminal offense, which is dangerous for the individual, society and the state as a whole. It is impossible to damage the very fact of registration of an organization, it can be caused only as a result of its illegal activities. Moreover, engaging in entrepreneurial activity is the constitutional right of every citizen. In addition, the penalty for pseudo-entrepreneurship will follow, if only major damage is caused (20,000 MCI or 45,380,000 tons). Before this amount, there is neither criminal nor administrative responsibility.

In case of pseudo-entrepreneurship, the damage is defined as the amount of the tax that the counterparty evaded from paying of, or the amount of the loan, income, property benefit illegally received by the counterparty (Regulatory Decree of the Supreme Court of the Republic of Kazakhstan No. 1 of January 12, 2009, "On Certain Issues of the Application of the Legislation on Pseudo-Enterprise"). In July 2016, the regulatory decision of the Armed Forces included clarifications that the damage caused, as well as the fault in this counterparty, are subject to proof with the adoption of a procedural decision in this criminal case. In fact, the criminal prosecution authorities must identify all counterparties, identify all transactions with them, establish their validity or invalidity, and only then decide on the liability of counterparties (if not previously established) and pseudo- enterprises.

Many counterparties are not involved in the criminal process of pseudo-entrepreneurship, they are unable to provide evidence of their transactions with a pseudo-enterprise, they learn about the court's verdict only after receiving notifications on additional taxation.

Article of the Criminal Code of the Republic of Kazakhstan on pseudo-entrepreneurship makes it possible to exert pressure on counterparts of a pseudo-enterprise. If in the part of tax evasion it is necessary first to conduct a tax audit and then initiate criminal prosecution, in the criminal case on pseudo-entrepreneurship, under the fear of bringing to criminal responsibility, counterparts can immediately be required to "voluntarily" pay taxes on transactions with a pseudo-enterprise.

It is not taken into account that counterparties could not always determine that they are dealing with a pseudo-enterprise. A pseudo-enterprise, as a rule, has tens, if not hundreds, of counterparties, which means that there is pressure on a large number of entrepreneurs.

The problems of bona fide entrepreneurs who had relationships with pseudo companies were repeatedly raised at various venues, including at parliamentary hearings, the congress of the National Chamber of Entrepreneurs of the Republic of Kazakhstan "Atameken" and the forum "Supervision of the Prosecutor's Office in the field of entrepreneurship".

Thanks to joint work with the Prosecutor General's Office of the Republic of Kazakhstan, proposals were developed to amend the legislation of the Republic of Kazakhstan. As a result of which, on 3^rd of July 2017, the Head of State signed the Law of the Republic of Kazakhstan "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Improving the Law Enforcement System".

This Law amends the Criminal Code of the Republic of Kazakhstan, including article 215 "False entrepreneurship". Entrepreneurs from all regions and regions of the country express their gratitude to "Atameken" for help in eliminating the problem of entrepreneurs.