In legal practice, there are cases when tax authorities make additional assessments of mandatory amounts of taxes and other mandatory payments to the budget based on the results of a tax audit, however, for one reason or another, this tax obligation was not fulfilled by the taxpayer in a timely manner, and no measures were taken to collection from the fiscal authority. The question arises, what to do in this situation? Is it possible to release property from the restrictions established by the tax authority?
One example of such a situation is the tax audit and its results in relation to citizen "B", conducted in 1999. Based on the results of this tax audit, violations of tax legislation were revealed, in connection with which an act was drawn up on the results of a tax audit and additional taxes were assessed, and accordingly, for the entire period, a penalty was charged on the amount of tax debt. In accordance with the tax legislation in force at that time, the tax committee sent a notification of the amount of tax accrued. In the year 2000, a restriction was imposed on the Debtor's property in order to enforce the collection of debt. However, the tax authority limited itself to this. The property was not sold, the amount of the debt was not collected. The issue of tax debt on unfulfilled tax obligations arose in 2010, with the intention to sell real estate belonging to citizen “B”. As a result, it was discovered that the property was restricted by the tax committee back in 2000.
A natural question arises, how to act in this situation, what are the deadlines for the fulfillment of the tax obligation and the requirement for the forced collection of the amount of debt from the fiscal authority for such obligations?
LIMITATION PERIODS FOR TAX LIABILITIES
The current tax legislation distinguishes such a concept as a tax liability, which is understood and recognized as the obligation of the taxpayer to the state, arising in accordance with the tax legislation of the Republic of Kazakhstan, by virtue of which the taxpayer is obliged to register with the tax authority, determine the objects of taxation and (or) objects related to taxation, calculate taxes and other obligatory payments to the budget, draw up tax forms, submit tax forms, with the exception of tax registers, to the tax authority on time and pay taxes and other obligatory payments to the budget (Article 26 of the Tax Code of the Republic of Kazakhstan ).
Article 46 of the Tax Code establishes a period of time (statute of limitations) during which:
the tax service body has the right to assess or revise the calculated, assessed amount of taxes and other obligatory payments to the budget;
the taxpayer (tax agent) is obliged to submit tax returns, has the right to make changes and additions to tax returns, withdraw tax returns;
the taxpayer (tax agent) has the right to demand a set-off and (or) refund of taxes and other obligatory payments to the budget, penalties;
the tax service body is obliged to offset and (or) refund taxes and other obligatory payments to the budget, penalties.
Paragraph 2 of Article 46 of the Tax Code establishes that the limitation period for a tax liability and claim is five years. The course of this period, as a general rule, begins to be calculated after the end of the corresponding tax period. However, under the current tax legislation, the expiration of the five-year limitation period is not a basis for the termination of the tax obligation, including the payment of taxes and other obligatory payments to the budget.
APPLICATION OF PREVIOUS LEGISLATION
In relation to the situation described above, it is possible to analyze the tax legislation in force at that time. In this case, the principle of "retroactive effect of the law" is applicable, according to which the effect of a regulatory legal act does not apply to relations that arose before its entry into force (paragraph 1 of Article 37 of the Law of the Republic of Kazakhstan "On regulatory legal acts"). That is, in other words, since the relationship for the fulfillment of the tax obligation arose in 1999, then the norms of the law in force at the time of the occurrence of legal relations are applied to such relations.
According to Article 148 of the Law "On Taxes and Other Obligatory Payments to the Budget" dated April 24, 1995 No. 2235, the limitation period for claims of tax authorities for the payment of a revised amount of tax or a previously assessed amount of tax, as well as for claims of taxpayers for a refund or offset overpaid amounts of tax was set at five years.
Unlike the current Tax Code of the Republic of Kazakhstan, the earlier Law of the Republic of Kazakhstan "On Taxes ..." did not provide for direct grounds for the termination of the tax liability for both individuals and legal entities.
Consequently, with the absence of direct instructions in the previously effective Law of the Republic of Kazakhstan "On taxes ..." on the basis of the termination of the tax liability, it can be concluded that there are no lawful actions to withhold property restrictions after the expiration of the five-year limitation period for the fiscal authority.
HOW TO WRITE OFF A REPAID DEBT
In connection with the above, in this situation, several options are possible for consideration. then applying directly to the tax authority, with an application for the removal of restrictions, with a mandatory indication of the omission of the five-year limitation period, as well as applying to the court in accordance with Chapter 27 of the Civil Procedure Code of the Republic of Kazakhstan, in case the tax authority refuses to remove restrictions from property.
IN THIS SITUATION, IT IS ALSO POSSIBLE TO WRITE OFF THE PENALTY ACCRUED ON THE AMOUNT OF THE PRINCIPAL DEBT.
So, in accordance with Article 32-1 of the Law of the Republic of Kazakhstan On the Enactment of the Code of the Republic of Kazakhstan "On Taxes and Other Obligatory Payments to the Budget" (Tax Code)" dated 10.12.2008 N 100-IV, is not recognized as a tax debt and is not subject to payment to the budget, and also subject to write-off in the manner prescribed by the authorized body, the amount of fines accrued before January 1, 2009 and not paid as of May 1, 2010. What is applicable in and in this case, since the amount of the penalty was accrued before January 1, 2009 and not paid before May 1, 2010, then, therefore, the specified amount of the penalty is subject to write-off.
This provision does not apply to taxpayers who:
recognized as false enterprises on the basis of a sentence or a court order that entered into force before July 1, 2010;
complying with the conditions of Article 623 of the Code of the Republic of Kazakhstan “On taxes and other obligatory payments to the budget” (Tax Code);
for which the amount of penalty interest accrued before January 1, 2009 was formed as a result of the submission of additional and (or) additional tax reporting upon notification in the period from January 1, 2009;
carrying out one or more of the following activities:
production of excisable products;
storage and wholesale of excisable products;
sale of gasoline, diesel fuel and fuel oil;
subsoil use;
collection (procurement), storage, processing and sale of scrap and waste of non-ferrous and ferrous metals;
construction (if there is an appropriate license);
financial or insurance activities.
Thus, as a result, if the debt was formed as a result of actions not falling under Article 32-1 of the above law, then the accrued penalty is subject to cancellation in an indisputable manner.