Law / 5.Criminal law and criminology.

 

Tokeyev Darkhan

PhD candidate of the Academy of Financial Police of the Republic of Kazakhstan (Kazakhstan, Astana) darhan123.87@mail.ru

 

Matters on using crime of tax evasion of companies in regulatory resolution

 

              Tax is known as an important source of income of any country. It, certainly, by being an obligatory sign of the country, shows its living, economic development and strategic directions. Accordingly, tax system of our country which has formed since the state took its Independence (in 1991), carries duty of people by the organizational and legal regulation. Payment of tax, at first, is written in the article 35 in the Constitution of the Republic of Kazakhstan: “Paying taxes, tributes and other statutory payments established by law is responsibility and obligation of everybody” [1, 4]. This Constitution is considered to be the main law which regulates relationship between individual (or juridical personality) and the state. Also, specific regulatory enactment is adopted for organizing and regulating specific function like this.

           Law-book 209 of the Republic of Kazakhstan as of 12 June, 2001 “About taxes and other budgetary statutory payments” is one of the regulatory legal enactments which directly controls tax treatment. Mentioned law-book regulates relations connected to controlling the introducing, imposing, also, calculating and payment rules of taxes and other obligative budgetary payments, in addition, concerns about discharge of duties between government and taxpayer (tax agent) [2, 2].

           Certainly, if named relations are put into practice according to the provision of law, it is considered to be correct, but if illegal activities and offence against the law take place, it will arise contradiction to the regulatory legal enactments which has been mentioned before. Such case demands another rule of law which, of course, aimed at protection of state interest, which, also, varies with passage of time.  Among these are the Law-book of Administrative offence of the Republic of Kazakhstan which became operative in 2001, Criminal Code of the Republic of Kazakhstan that became operative in 1998 and regulatory resolutions of the Supreme Court of the Republic of Kazakhstan which explains how to use its norms correctly.

           Total quantity of norms used in offenses against the law, given consideration to in the Law-book of Administrative offence of the Republic of Kazakhstan (as amended and supplemented on the 4th of July, 2013) is 17. To be more exact: article 205, cases of failure of the time limit of tax calculation in tax authority; article 205-1, illegal execution of action in using specific tax regime; article 205-2, execution of action of individuals during the stoppage of tax accounting; article 206, not distributing documents related to bank deposits necessary for tax accounting, also, for conducting monitoring of taxpayer; article 206-1, not distributing accounting given with the aim of controlling during indication transfer price according to agreement monitoring, in addition, documents necessary for auditing the problem of indication transfer prices; article 206-2, infraction financial control of individuals dismissed from civil service without valid excuse, also, wives of named individuals; article 207, hiding items of taxation; article 208, absence of calculation documents and infraction tax accounting; article 208-1, evasion of taxes and counted amount of budgetary statutory payments; article 209, demonstrating decreased amount of taxes and other obligative budgetary payments; article 210, neglect in the discharge of duties in expending and (or) transferring taxes of tax agent; article 211, distributing false tax-invoice; article 216, neglect in the discharge of duties connected to the tax law by official bodies of the banks and organizations, stock exchanges which carry out specific functions of banks; article 217, neglect in the discharge of duties named in tax laws by the banks and organizations which carry out specific functions of banks; article 218, giving false information about functions of the bank; article 218-1, neglect in the discharge of duties mentioned in the tax law of the Republic of Kazakhstan by taxpayers during the work on export and import of goods in customs union, also, failure to comply with requirements of legislation of the Republic of Kazakhstan by individuals; article 219, failure to comply with legal requirements by tax department and their civil servants [3].

           The Criminal Code of the Republic of Kazakhstan has been distinguishing clauses connected to the tax crime since 1998, evasion of taxes and (or) other obligative budgetary payments by citizens (article 221) and evasion of company taxes and (or) other budgetary statutory payments (article 222) took place among them and renewed version has been kept till nowadays. The rule about Lawless acts of taxpayers to the properties when power to the tax payable account reduced (article 222-1) has taken place in the following years’ changes [4, 99].

           Of course, mentioned legislations regulate concerns connected to tax violation and tax crimes, in other words, they contain danger to society, wrongfulness, guiltiness, and presence of action, responsibility and application of punishment. However, such legislative readjustment has entirely contemplated penal provision of guilty person; it cannot take into account that there are some unfortunate cases in practice of application of punishment. We should not forget that correct and efficient using of such experiment of punishment is achieved by regulatory resolutions of courts.

           Accordingly, in order to execute correctly and fundamentally constitutional requisitions connected with the matters of tax assessment Plenum of Supreme Court of the Republic of Kazakhstan adopted rule 19 “About some matters of using tax legislation by courts” as of 20 December, 1999. In the course of time, pointed out regulatory resolution was expired according to the determination ¹5 “About experience of court in using tax legislation” adopted on 23rd of June, 2006, and in September, 2012 new draft regulations “About experience of court in using tax legislation” was prepared. Named regulatory resolutions at any time solve the problem of using relations emerged only at that time, and provide to understand rightly definite questions of application of punishment in concrete branches.

           Nowadays, abovementioned regulatory resolutions of the Supreme Court expired, determination ¹1 of the Supreme Court of the Republic of Kazakhstan “About experience of court in using tax legislation” as of 27 February, 2013 is acting. Due to the fact of necessity on explaining certain rules, determination is said about fundamentals of general tax legislation, usage of taxes, rate of taxation and obligative budgetary payments, in general, it is said about civil law relations, tax relations. To be more exact, «according to the article 9 of Tax Code statutory and regulatory enactments which regulate tax questions must be published in official editions. According to the article 38 section 1 of the Law of the Republic of Kazakhstan “About statutory and regulatory enactments” in order to become operative abovementioned statutory and regulatory orders of authorized body, Minister for Foreign Affairs of the Republic of Kazakhstan, also, statutory and regulatory resolutions connected to the rights and duties of local competent authorities and citizens, they must be officially registered in justice agencies» [5, 1]. At this point it is clear that in cases of declaring and changes in tax legislation regulatory resolution must be sent to justice agencies.

           In the resolution which is exactly connected to the tax legislation was mentioned: “According to the article 20 section 1 subsection 5 of Tax Code tax agencies within their competence are responsible for realization the explanation and offering an interpretation about emersion, fulfillment and cessation of tax liability. Such kind of explanations and interpretations, in addition, explanations and interpretations of authorized body do not relate to regulatory legal enactments.” [5, 1]. It denotes that explanations and interpretations of revenue officers are not considered to be regulatory document.

           Similar to this resolution under consideration gives an explanation that, with the exception of cases mentioned in enactments of the article 1 section 4 of Civil Code of the Republic of Kazakhstan, civil law statues are not used in tax relations. It, also, denoted the necessity of distinguishing by the courts the difference of tax relations from property matters regulated by civil law statues.

           Similar to this, in the Civil Procedure Code of the Republic of Kazakhstan was given an explanation about the recovery of damage, besides, about state registration of juridical personalities and record registration of their filial branches and representative offices.

           Generally, regulatory resolution under consideration pays special attention to realization of tax relations, claims and liabilities during carrying out, also, to fixed time and terms. But the case of how to solve further the problem of failure in tax liabilities, in other words, in cases of failure to pay tax or other obligative budgetary payments or how to solve if the case is tax offence or tax crime were not explained properly. But in this resolution was elaborated about tax crime like: “On the other hand, we should take into account that according to the article 222 of the Criminal Code of the Republic of Kazakhstan the tax, connected to the recovery of damage by mentioned crime (tax evasion of companies), is counted due to the position of juridical personality who is a taxpayer. According to the general rule from the article 31 section 1 of the Tax Code taxpayer realizes carrying out the tax duties individually. As a consequence of criminal actions of guilty natural person juridical person evades of payment of tax, so, he or she has to pay debts for tax. After carrying out their duties individually juridical person has a right to counter demand in the sum of late fee and fixed penalty from guilty person.” [5, 2]. Herein, the case of tax evasion of companies is not interpreted properly, was only said about the case of recovery of damage by juridical person and necessity of counting it according to their position, also, necessity of returning evaded sum to the state. It is clear that such cases cause obscure, un-solving problems during the application of punishment to the crimes of tax evasion of companies.

           Nowadays in practice of crime of tax evasion of companies several problems that demand profitable and adequate solution in legal framework have been appearing. These problems contain following questions: 1) the case when nonpayment of taxes and other obligative payments exceeds the sum of 2000 monthly quantitative index by non-granting the declaration, attempts to evade company taxes and obligative budgetary payments by putting into declaration wrenched information about incomes and expenses and hiding taxable objects and obligative payments,; 2) bring to what responsibility in the case of non-granting the declaration, putting into declaration wrenched information about incomes and expenses, and in other mentioned cases, and when cost doesn’t reach 2000 monthly quantitative index; 3) how to compensate the sum of non-payment and so on. Such kind of matters should be solved by law at the appropriate times, therefore, even if the responsibility for tax evasion of companies was aimed, for using properly punishment and responsibility in judicial practice, in our opinion, important questions which were disputed during hearing of cases at regulatory resolution of the Supreme Court ought to be entirely examined. Especially, nowadays due to the fact of increasing the amount of crimes of tax evasion of companies, while it is prevented from creating new ways of evasion experienced hands and academic researchers need normative statement as an explanatory note. For this reason, the questions met in practice of cases of tax evasion, furthermore, tax evasion of companies had better paid attention, as said before, distinctive features of tax offence and tax crimes, return process after tax evasion of companies, the ways of returning the sum to the budget profitably if there were false employer of undertaking, moreover, what individuals of the company had to be brought to justice - in the resolution ¹1 of the Supreme Court of the Republic of Kazakhstan  “About experience of court in using tax legislation” as of 23 February, 2013 should be explained properly.

           Finally, any legislation according to social danger and damage in particular sphere should appoint degree of responsibility, more specifically, it is necessary to employ measures in these steps: tax evasion of the companies should be punished, at first, by disciplinary punishment, then by legislation on administrative offence, if exceeds its degree of regulation, then by criminal provision of law. Consequently, to our mind, regulatory resolution of the Supreme Court of the RK “About experience of court in using tax legislation” had better contain an explanation of punishment, responsibility of law-breakers and controlling mechanism of the sum of evasion or create a regulating legislative instrument, and make references.

 

 

 

 

 

Reference List:

1.   Constitution of the Republic of Kazakhstan as of 30 August, 1995 (amended and revised in the Law of the Republic of Kazakhstan as of 2 February, 2011) 48 p.;

2.   “Tax and other obligative budgetary payments Code of the Republic of Kazakhstan” confirmed by the law ¹209 of the Republic of Kazakhstan as of 12 June, 2001 (amended and revised on the 2nd of April, 2013);

3.   “Administrative Violations Code of the Republic of Kazakhstan” regularized by the Law of the Republic of Kazakhstan ¹156-²² as of 30 January, 2001 (amended and revised on the 27th of April, 2012), 396 p.;

4.   “Criminal Code of the Republic of Kazakhstan” confirmed by the Law ¹168 of the Republic of Kazakhstan as of 16 July, 1997 (amended and revised on the 4th of July, 2013), 211 p.;

5.   Resolution of the Supreme Court of the Republic of Kazakhstan ¹1 “About experience of court in using tax legislation” as of 27 February, 2013, 13 p.