Procedure for appealing notifications based on the results of tax audits
In accordance with the requirements of Article 159 of the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget" (hereinafter – the Tax Code), upon completion of the tax audit, in the event of violations leading to the accrual of taxes and payments to the budget, reduction of losses, the tax authority issues a notification of the results of the audit, which is sent (handed)to the taxpayer (tax agent) in accordance with the procedure established by law.
The taxpayer (tax agent) has the right to appeal the notification in case of disagreement with the amount of the additional charge.
The notification is appealed to a higher tax authority or to a court.
It is important to note that the notice is being appealed, not the inspection report.
The complaint of the taxpayer (tax agent) against the notification of the results of the audit is submitted to the authorized body within thirty working days from the day following the date of delivery of the notification to the taxpayer (tax agent).
The authorized body that considers complaints about the notification of the results of the audit is the Ministry of Finance of the Republic of Kazakhstan.
In this case, a copy of the complaint must be sent by the taxpayer (tax agent) to the tax authorities that conducted the tax audit and considered the objections of the taxpayer (tax agent) to the preliminary tax audit report.
If, for a valid reason, the deadline set for filing a complaint is missed, this deadline may be restored by the authorized body considering the complaint at the request of the taxpayer (tax agent) filing the complaint.
In order to restore the missed deadline for filing a complaint, the authorized body recognizes as a valid reason the temporary disability of the individual in respect of whom the tax audit was conducted, as well as the head and (or) chief accountant (if any) of the taxpayer (tax agent).
In this case, the taxpayer (tax agent) must attach a document confirming the period of temporary disability of the persons specified in part one of this paragraph and a document establishing the organizational structure of such a taxpayer (tax agent) to the application for restoration of the missed deadline for filing a complaint.
The request of the taxpayer (tax agent) to restore the missed deadline for filing a complaint is satisfied by the authorized body, provided that the taxpayer (tax agent) filed the complaint and the request no later than ten working days from the date of the end of the period of temporary disability of persons.
A taxpayer (tax agent) who has filed a complaint with the authorized body may withdraw it on the basis of his written application before making a decision on this complaint. The withdrawal of a taxpayer's (tax agent's) complaint does not deprive him of the right to file a second complaint, provided that the deadlines established by law are met.
The taxpayer (tax agent) is not entitled to withdraw the complaint during the period from the date of appointment of the thematic audit to the date of its completion.
The complaint of the taxpayer (tax agent) is submitted in writing.
The complaint must contain the following information:
1) the name of the authorized body to which the complaint is filed;
2) the surname, first name and patronymic (if it is specified in the identity document) or the full name of the person filing the complaint, his place of residence (location);
3) identification number;
4) the name of the tax authority that conducted the tax audit;
5) the circumstances on which the person filing the complaint bases his claims and the evidence supporting these circumstances;
6) date of signature of the complaint by the taxpayer (tax agent);
7) the list of attached documents.
The complaint may also contain other information relevant to the resolution of the dispute.
The complaint is signed by the taxpayer (tax agent) or a person who is his representative.
The following documents are attached to the complaint:
1) documents confirming the circumstances on which the taxpayer (tax agent) bases its claims;
2) other documents relevant to the case.
The authorized body refuses to consider the complaint of the taxpayer (tax agent) in the following cases:
1) filing by the taxpayer (tax agent) of a complaint with the omission of the appeal period;
2) non-compliance of the taxpayer's (tax agent's) complaint with the requirements;
3) filing a complaint for the taxpayer (tax agent) by a person who is not his representative;
4) submission by the taxpayer (tax agent) of a statement of claim to the court on the issues set out in the complaint.
The authorized body shall notify the taxpayer (tax agent) in writing of the refusal to consider the complaint within ten working days from the date of registration of the complaint.
The authorized body, in the case provided for in subparagraph 4), shall notify the taxpayer (tax agent) in writing of the refusal to consider the complaint, indicating the reason for such refusal, within ten working days from the date of establishing the fact of the taxpayer (tax agent) ' s appeal to the court.
In the cases provided for in sub-paragraphs 2) and 3), the refusal of the authorized body to consider the complaint does not exclude the right of the taxpayer (tax agent) within the period established by part one of paragraph 1 of Article 178 of the Tax Code to re-file the complaint if they eliminate the violations committed.
A reasoned decision is made on the complaint of a taxpayer (tax agent) within no more than thirty working days from the date of registration of the complaint, and on complaints of taxpayers subject to tax monitoring - no more than forty-five working days from the date of registration of the complaint, except for cases of extension and suspension of the terms of consideration of the complaint in accordance with Article 183 of the Tax Code.
The authorized body, when considering the complaint of a taxpayer (tax agent), has the right to appoint a thematic check, as well as a repeated thematic check in accordance with the procedure established by Article 186 of the Tax Code.
The complaint is considered within the limits of the issues appealed by the taxpayer (tax agent).
If a taxpayer (tax agent) submits documents that were not submitted during a tax audit for consideration of the complaint, the authorized body has the right to establish the reliability of such documents during thematic and (or) repeated thematic audits appointed in accordance with the procedure established by Article 186 of the Tax Code.
When considering a complaint of a taxpayer (tax agent), the authorized body may, if necessary,:
1) send requests to the taxpayer (tax agent) and (or) to the tax authorities that conducted the tax audit and considered the objections of the taxpayer (tax agent) to the preliminary tax audit report, to provide in writing additional information or explanations on the issues set out in the complaint;
2) send requests to state bodies, relevant bodies of foreign states and other organizations on issues within the competence of such bodies and organizations;
3) hold meetings with the taxpayer (tax agent) on the issues set out in the complaint;
4) request additional information and (or) explanations on the issues raised from the employees of the tax authorities who took part in the tax audit and considered the objections of the taxpayer (tax agent) to the preliminary tax audit report.
Interference in the activities of the authorized body in the exercise of its powers to review the complaint and the provision of any influence on the persons involved in the consideration of the complaint are prohibited.
The authorized body shall establish an appeal commission to consider complaints about the notification of the results of the audit.
At the end of the consideration of the complaint, the authorized body makes a reasoned decision, taking into account the decision of the appeal commission.
Following the results of consideration of the complaint of the taxpayer (tax agent) on the notification of the results of the audit, the authorized body makes one of the following decisions:
1) leave the appealed notification of the results of the audit unchanged, and the complaint without satisfaction;
2) cancel the contested notification of the results of the audit in full or in part.
The decision on the complaint in writing is sent by registered mail with a notification or is handed over to the taxpayer (tax agent) under the signature, and a copy is sent to the tax authorities that conducted the tax audit and considered the objections of the taxpayer (tax agent) to the preliminary tax audit report.
In case of cancellation of the appealed notification in part based on the results of consideration of the complaint, the tax authority that conducted the tax audit shall issue a notification on the results of consideration of the complaint of the taxpayer (tax agent) to the notification of the results of the audit and send it to the taxpayer (tax agent) within the period established by subparagraph 11) of paragraph 2 of Article 114 of the Tax Code.
The filing of a complaint (application) by a taxpaye