Registration of a branch in Kazakhstan

Registration of a branch of a foreign legal entity (company) in Kazakhstan is a rather laborious process that requires registrars to have a clear knowledge of the law, all bureaucratic procedures and regulatory requirements. Employees of our agency have sufficient experience to provide these services without delay and error. Documentation is prepared on original forms, according to all standards.

By applying for help now, you will receive qualified assistance, guaranteed by certificates and a professional approach. Feedback from customers confirms that our employees always achieve the goals that customers set for them.

Contact numbers for inquiries are listed at the top of the site. A free review consultation is provided (Astana, Nur-sultan, Almaty).

Required papers for registering a branch in Kazakhstan

In order for the specialists of our agency to be able to start working, you will need to provide the following papers:

• registration statement signed by the executive body of the registered company;
• prepared position on representation;
• certified general power of attorney for the future head of the opening branch or representative office;
• a legal decision to open a branch, certified by the head office of the company being formed;
• commercial register records or certificate of incorporation;
• copies of all constituent documents.

A complete list of documents is provided by employees of our company. After the application is submitted, the documents will be checked. Before starting the registration procedures, a number of consultations are held with the customer to agree on controversial issues.

High efficiency in solving problems with registration of branches

Well-defined work, distribution of responsibilities and a systematic approach ensure high efficiency in solving customer problems. Each case is individual.

Employees delve into the details, check all the ins and outs of the company, explain every legal detail:

• We are easy to work with. The result of the client is the first priority;
• price transparency allows you to offer the best solutions to customers. Only target, at the moment, services are provided;
• the meticulousness of the employees eliminates mistakes that can cost a lot;
• we can guarantee the result provided by the signed cooperation agreement.

Being on the target market for more than a year, we have developed strategies for cooperation with all state bodies of Kazakhstan, so the work is carried out clearly, without delay. We are approached due to the high level of expertise. We safely serve even problematic customers.

The cost of registration services may differ from the nominal, as it is calculated on an individual basis and may depend on the complexity of the situation. Contact our consultants at the specified numbers, get qualified assistance and start collecting the specified documents.

At the end of the agreed period, you will receive the statutory documents on the registration of a branch of your enterprise in Kazakhstan.

IIN for a foreigner

Individual identification number (IIN) helps to receive state. services, make payments, perform various actions with papers on the territory of Kazakhstan. Government agencies require this number not only from residents of the Republic. It must be presented to everyone, incl. foreigners wishing to register a legal entity, purchase and sale of real estate, other legal entities. relations with the citizens of Kazakhstan.

We help all foreigners, in accordance with the procedure established by law, obtain an IIN, go through all the stages of registration. Agency employees comply with all the rules according to which the state is conducted. document flow. This eliminates the occurrence of any errors and inaccuracies in the design.

Please call the numbers indicated in the header of the site so that the representatives of the agency answer your questions and set the time of the visit (Astana, Nur-sultan, Almaty). The speed and quality of the result obtained will depend on the accuracy of fulfilling all the requirements.

What is required for a foreigner to obtain an IIN?

According to the legislation of Kazakhstan, in order to obtain an IIN from foreign citizens, the following documents are required:

• passport of a person, with translations certified by a notary public;
• tax registration number;
• power of attorney from our employees.

After a visit to the office and checking all the papers, a cooperation agreement will be signed with a clear description of the services provided.

Using our agency, you will save time and money than when contacting dubious organizations. We have the appropriate licenses to provide this type of service, our employees have invaluable experience working with the state apparatus. Apply now to get an IIN for a foreigner in Kazakhstan as quickly and efficiently as possible.

Profiling is the key to success

Thanks to the well-established scheme of work, we do not waste the time of customers in vain.

The list of services provided, in addition to obtaining an IIN, includes:

• consultations on the workflow on obtaining IIN for foreign citizens;
• assistance in registering the customer with the tax office.

People turn to us because our work has long been recognized among our citizens. Reviews and reputation provide our employees with a constant flow of work.

Recommendations prove that we work better than our competitors:

• customers are provided with any targeted assistance;
• all our clients are freed from paper bureaucracy as much as possible;
• payment is made upon completion of the declared amount and types of work;
• bugs are fixed promptly.

Call the numbers listed in the header of the site. Representatives of the agency will answer the questions that have arisen, help with the resolution of disputes, suggest their correct solution. We always meet the needs of our clients, therefore we achieve maximum efficiency and feedback.

Only experience and professionalism

Judging by the feedback from our customers, we are doing our job well.

Finding an approach to each client, agency employees provide a new level of service that is not available to our competitors:

• getting closer to customers, we understand them better;
• offering only specific solutions, we save them money;
• observing the law, it becomes possible to guarantee the safety of further work.

Do you need to quickly get an IIN for a foreigner in Kazakhstan? Do not understand the intricacies of domestic document management? Call us.

Qualified lawyers will solve your problems as quickly as possible, without wasting time and attracting significant financial resources, guaranteeing a quality result.

Rewarding for active participation in the work of the branch of the party “Nur Otan”

For five years, the Karaganda city branch of the party has been cooperating on the basis of a signed memorandum with LLP “Legal Company” KORGAN “. Thanks to the competent legal advice of the lawyers of our company, many issues of citizens who apply to the public reception are resolved positively. For active participation in the work of the Karaganda city branch of the Nur Otan party, in the social and political life of the city, a letter of thanks was awarded to the lawyer of our law firm – Marat Alibaev. Presentation of a letter of thanks was held by Akim of the City of Karaganda Aubakirov Nurlan Erikbaevich.

BIN for a foreign company

Мы предоставляем услуги юридической направленности для отечественных и зарубежных компаний. По закону каждая компания, совершающая какую-либо деятельность на территории Казахстана, обязана иметь БИН – бизнес-идентификационный номер. Присвоение этого номера возможно в ситуации, когда компания регистрируется в качестве налогоплательщика на территории Республики Казахстан.

Наше юридическое сопровождение – полный перечень услуг, включающий большую консультационную и сопроводительную работу, создание условий для быстрого оформления необходимой документации.

Правовыми основаниями для оформления иностранной компании в статусе налогоплательщика являются:

• работа иностранного юр. лица на территории Казахстана посредством постоянного учреждения;
• расположения на территории страны «головного управления» иностранной компании;
• покупка имущества или его реализации;
• открытие счета в банках-резидентах.

Полный перечень условий, согласно которым получают БИН, можно узнать у наших специалистов по телефонам, указанным вверху сайта. Обращайтесь сейчас (Астана, Нур-султан, Алматы). Сэкономьте время в будущем.

Поможем получить БИН для иностранной компании

Опираясь на законодательные нормы нашего государства, мы помогаем заказчику пройти процедуры регистрации максимально быстро. Наиболее распространенным способом получения БИН является получение банковского счета.

Чтобы мы могли начать работу, от вас потребуется представление следующих документов:

• легализованные копии бумаг и учредительных актов компании, заверенные нотариусом;
• документы, подтверждающие налоговую и гос. регистрацию;
• оригиналы выписок торгового реестра;
• документы, подтверждающие личность владельца компании;
• доверенность от сотрудников нашей компании.

О полной процедуре регистрации, ее этапах, нюансах и особенностях вы сможете узнать по телефонам, закрепленным в шапке сайта. Представители проведут консультацию, наметят план начала работ.

К нам обращаются и доверяют

С начала нашей работы мы помогли с оформлением документов достаточному количеству предпринимателей, чтобы считать себя экспертами в данной сфере деятельности.

Наши сотрудники приобрели неоценимый опыт, за счет которого результативность и скорость выполнения поставленных задач увеличились в несколько раз:

• сотрудничество осуществляется исключительно в правовом поле Казахстана;
• юристы выбирают оптимально короткие пути легализации предприятий для экономии времени клиента;
• лояльная ценовая политика является гарантом доступности и популярности услуг;
• полная клиент ориентированность помогает в оптимизации рабочих процессов. Доработка подготовленных материалов возможна по вине заказчика;
• квалифицированная поддержка исключает появление любых юридических ошибок.

Закажите обратный звонок, чтобы наши юристы смогли связаться с вами. Получите помощь профессионалов сейчас, чтобы завтра иметь возможность беспрепятственно вести бизнес на территории нашей страны.

Сколько стоит получить БИН?

Цены на услуги могут варьироваться в каждом отдельном случае. Чтобы полностью просчитать все расходы на оформление бумаг и законное получение БИН для своего предприятия, свяжитесь с нашими представителями. Аккредитация нашего агентства позволяет быстро решать все бюрократические вопросы, получать необходимые документы для беспрепятственной деятельности.

Обратитесь за помощью сейчас, чтобы не терять время на исправление недочетов, допущенных непрофессионалами из других агентств.

Мы отвечаем за результат. Работаем лучше конкурентов, поэтому находимся впереди.

Registration of a foreign company with the tax authorities in Kazakhstan

To register a business or to open an account in the territory of the Republic of Kazakhstan, non-resident legal entities need to register as a taxpayer, for which it is necessary to obtain a BIN for legal entities from the relevant state revenue authority.

In accordance with the Law of the Republic of Kazakhstan “On National Registers of Identification Numbers”, a business identification number (hereinafter referred to as BIN) is a unique number generated for a legal entity (branch and representative office) and an individual entrepreneur operating in the form of a joint venture.

The provision of such documents is required, for example, for state registration / re-registration of legal entities in the territory of the Republic of Kazakhstan, participation in the public procurement procedure, state registration of rights to real estate, etc. Thus, if a foreign legal entity wishes to carry out activities on the territory of the Republic of Kazakhstan through a subsidiary or take part in public procurement, then it must obtain a BIN.

BIN is assigned to foreign legal entities only upon registration of such a legal entity as a taxpayer of the Republic of Kazakhstan. At the same time, there are several grounds provided by tax legislation for such registration, namely:

1) carrying out activities by a foreign legal entity through a permanent establishment on the territory of the Republic of Kazakhstan;

2) location on the territory of the Republic of Kazakhstan of a place of effective management of a foreign legal entity;

3) acquisition (sale) by a foreign legal entity that is a tax agent in accordance with paragraph 5 of Art. 197 of the Code of the Republic of Kazakhstan “On taxes and other obligatory payments to the budget”, property in the Republic of Kazakhstan;

4) a foreign legal entity is a party to an agreement on joint activities concluded with a resident of the Republic of Kazakhstan, the activity of which leads to the formation of a permanent establishment (simple partnership agreement, consortium agreement);

5) the intention of a foreign legal entity to open a bank account with resident banks of the Republic of Kazakhstan.

According to the Code of the Republic of Kazakhstan “On taxes and other obligatory payments to the budget”, a non-resident legal entity, in order to register as a taxpayer, must submit to the tax authority at the location of the permanent establishment a tax application for registration with notarized copies (if necessary, apostilled ) the following documents:

• constituent;
• confirming the state registration in the country of incorporation of the non-resident, indicating the state registration number (or its equivalent);
• confirming tax registration in the country of incorporation of a non-resident, indicating the tax registration number (or its equivalent), if such document is available.

What does the client get when ordering the service of obtaining a BIN from the law firm KORGAN?

Cooperating with us, the client receives absolute readiness to go through legal procedures, assistance and support at all stages of registration and, as a result, the successful completion of the entire process and obtaining a certificate of registration as a taxpayer!

Upon receipt of the BIN, the client does not need to go to the tax authorities, as lawyers are issued powers of attorney with the right to represent the client’s interests in the authorized body, with the right to submit the necessary applications and obtain certificates, as a result, the client eliminates the waste of precious time on bureaucratic procedures.

Obtaining a certificate of registration of a foreign legal entity with the tax authorities from the law firm KORGAN is your safe start of a new business in Kazakhstan!

Special tax regime based on patent

One of the simplest ways of doing business is the activity of an entrepreneur based on a patent, that is, this is a business in which the entrepreneur chooses the period during which he is going to carry out entrepreneurial activities, pays the necessary taxes and fees and conducts entrepreneurial activities.

At the same time, there are the following restrictions, in the case of applying a special tax regime based on a patent:

• The entrepreneur is not entitled to use the labor of employees;
• Must be self-employed.

In order to obtain a patent, an individual must register as an individual entrepreneur (hereinafter – IP) through the e-government portal using an electronic digital signature, registering as an individual entrepreneur does not mean that you have started entrepreneurial activity based on a patent. In order to obtain a patent, you need to apply to the tax authority at the location and submit a calculation of the cost of the patent, which can be provided either on paper or in electronic form, while:

1) newly formed individual entrepreneurs must provide a calculation no later than three working days from the date of submission of the notification for registration as an individual entrepreneur;

2) in case of transition from the generally established procedure or other special tax regime – before the 1st day of the month of application of the special tax regime based on a patent;

3) applying a special tax regime based on a patent to obtain the next patent – until the expiration of the previous patent or the period of suspension of tax reporting.

The calculation is tax reporting for calculating the cost of a patent. The cost of a patent is calculated as follows: the cost of a patent includes the payable amounts of individual income tax (except for individual income tax withheld at the source of payment) and social payments. The calculation of the amount of individual income tax included in the cost of a patent is made by applying a rate of 1 percent to the object of taxation, with the exception of the object of taxation of persons carrying out activities in the field of trade. Individual entrepreneurs carrying out activities in the field of trade calculate the amount of individual income tax included in the cost of a patent by applying a rate of 2 percent to the object of taxation, with the exception of income received through non-cash payments, which are taxed at a rate of 1 percent.

Individual entrepreneurs operating in the field of trade keep separate records of income taxed at different rates of individual income tax. At the same time, income received through non-cash payments is recorded in the tax register in the form established by the authorized body on the basis of primary documents, including bank statements.

In view of the fact that the activity of an individual entrepreneur on the basis of a patent implies the personal participation of the entrepreneur, then, accordingly, obligations arise to pay social payments on the basis of the laws of the Republic of Kazakhstan “On pensions in the Republic of Kazakhstan”, “On compulsory social insurance” and “On compulsory social medical insurance”.

If the amount of income actually received during the term of the patent exceeds the amount of income indicated in the calculation, individual entrepreneurs are obliged to submit the calculation in the form of additional tax reporting for the excess amount within five working days and pay taxes on this amount. Accordingly, if the amount of income actually received during the term of the patent (including cases of early termination) is less than the amount of income indicated in the calculation, individual entrepreneurs are entitled to submit the calculation in the form of additional tax reporting in the amount of a reduction in the cost of the patent. In this case, the refund of overpaid taxes is made in the manner prescribed by Chapter 11 of the Tax Code.

In the event that the amount of income actually received exceeds the amount of the marginal income in the amount of 300 times the minimum wage, received from the date of the start of the application of the generally established procedure or other special tax regime established by Article 679 of the Tax Code, is taxed accordingly in the generally established procedure or in the manner determined special tax regime.

In the event of termination of entrepreneurial activity before the expiration of the patent, the amount of tax paid is not subject to return and recalculation, except for the case when an individual entrepreneur is recognized as incapacitated.

Summing up, we can note the pros and cons of doing business on the basis of a patent.

Off-site meeting at the NGO TsPDI “Ray of Hope”

On November 1, 2017, the lawyer of the law firm Alibaev Marat Erdenovich, together with the first deputy chairman of the Karaganda city branch of the Nur Otan party, Badina Yulia Viktorovna, held an off-site meeting at the NGO TsPDI “Ray of Hope”, where a meeting was held with persons with disabilities and their guardians.

As part of the party project “Kedergisiz Keleshek”, clarifications were given on labor relations, property issues and inclusive education for people with disabilities. Practical recommendations were given.

Notification of the tax authority about participation in a foreign company

Regarding the notification of tax authorities about the participation of Kazakhstan residents in a controlled foreign company.

The Tax Code of the Republic of Kazakhstan establishes the requirements and deadlines for submitting an application for the participation of a resident of the Republic of Kazakhstan in a controlled foreign company.

In accordance with Article 294 of the Tax Code of the Republic of Kazakhstan, a controlled foreign company is a person that simultaneously meets the following conditions:

1) such person is one of the following persons:

a non-resident legal entity;

another foreign form of organization of entrepreneurial activity without forming a legal entity (hereinafter referred to as another form of organization);

2) such person meets one of the following conditions:

25 percent or more of the participation interest (voting shares) in a person directly or indirectly or constructively belong to a legal or natural person who is a resident of the Republic of Kazakhstan;

the person is related to the resident through control (if the resident has direct or indirect or constructive control over the person);

3) such person meets one of the following conditions:

the effective income tax rate of a non-resident legal entity or other form of organization, determined in accordance with subparagraph 2) of paragraph 4 of Article 294 of the Tax Code of the Republic of Kazakhstan, is less than 10 percent;

a non-resident legal entity or other form of organization is registered or the founding document (document of creation) of which is registered, or a participant entrusted with keeping records of income and expenses or managing assets under such other form of organization is registered in a state with preferential taxation.

For the purposes of defining a controlled foreign company, the concept of “control” is defined as follows – control, determined in accordance with international financial reporting standards or other internationally recognized financial reporting standards adopted by stock exchanges for admission of securities to trading.

In accordance with Article 298 of the Tax Code of the Republic of Kazakhstan, a resident is required to submit an application for participation (control) in a controlled foreign company no later than sixty business days following the date of:

1) the acquisition, directly or indirectly, or constructively, of 25 percent or more of a participation interest or direct or indirect, or constructive control in a controlled foreign company;

2) establishment (creation) of a controlled foreign company;

3) changes in the share of participation or control in a controlled foreign company;

4) termination of 25 percent or more of the share of participation or control in a controlled foreign company;

5) termination (liquidation) of a controlled foreign company.

Moreover, if a resident who owns directly or indirectly or constructively shares or has direct, indirect or constructive control in a controlled foreign company that was acquired before January 1, 2018, is required to submit an application for participation (control) in a controlled foreign company not later than December 31, 2018.

In subsequent tax periods, an application for participation (control) in a controlled foreign company shall be submitted no later than March 31 of the year following the reporting tax period.

An application for participation (control) in a controlled foreign company is submitted to the tax authority in the form established by the authorized body at the place of residence of an individual or at the location of a legal entity.

If the resident did not provide information on participation in a controlled foreign company and the specified information was revealed by the tax authority from the competent or authorized body of the foreign state, then the tax authority sends the resident a notice on elimination of the violation of the tax legislation of the Republic of Kazakhstan, which should reflect the information in accordance with paragraph 4 of Article 298 of the Tax Code of the Republic of Kazakhstan.

If the resident agrees with the violations specified in the notification, then the resident provides the appropriate:

1. An application for participation (control) in a controlled foreign company no later than thirty business days following the day of receipt of a notification on the elimination of violations of the tax legislation of the Republic of Kazakhstan;

2. Tax declaration in terms of including the tax liability arising in accordance with Article 297 of the Tax Code of the Republic of Kazakhstan for the period of ownership of shares in a controlled foreign company.

If the resident does not agree with the violations specified in the notification, the resident shall provide one of the following documents:

1) an explanation of the identified violations in writing on paper or in the form of an electronic document – to the tax authority that sent the notification on the elimination of violations of the tax legislation of the Republic of Kazakhstan;

2) a complaint against the actions (inaction) of officials of the tax authority that sent a notification on the elimination of violations of the tax legislation of the Republic of Kazakhstan – to the authorized body or court.

At the same time, the resident is obliged, together with explanations, to submit documents proving that the resident does not own shares of participation or that there is no direct or indirect control in a controlled foreign company.

Thus, a resident is recognized as owning shares and having control over a foreign company if one of the following conditions is met:

1. the absence of a complaint against the action (inaction) of officials of the tax authority that sent the notification, and the taxpayer’s failure to comply with the notification;

2. the absence of grounds refuting the information that a resident owns a stake in and control over a foreign company, based on the results of consideration of the resident’s explanations and supporting documents available to the tax authority.

If a resident is recognized as owning stakes and having control over a foreign company, the tax authority sends a decision to the resident to recognize him as owning stakes and having control over a foreign company no later than three working days from the date of the decision on such recognition.

A resident recognized as the owner of participation shares and having control over a foreign company has the right to appeal such a decision to a higher tax authority or court within fifteen working days from the date of receipt of such a decision.

Choosing a special tax regime when registering a business

This article will talk about the main points that entrepreneurs need to pay attention to when starting a small business and who have chosen a special tax regime provided for by the Tax Code of the Republic of Kazakhstan.

In accordance with the Entrepreneurial Code, business entities are divided into micro-business entities, small, medium and large businesses.

The Tax Code provides for the following special tax regimes for small businesses:

• Based on a patent;
• Based on a simplified declaration;
• Special tax treatment based on a fixed deduction;
• Special tax regimes for agricultural producers.

The special tax regime provides for a small business entity a simplified procedure for calculating and paying: individual income tax, social tax and corporate tax, for each of the regimes there are certain features.

In order for a small business entity to apply the special tax regime, it must meet the following requirements:

• The average number of employees does not exceed for the special tax regime;
• Based on the simplified declaration – 30 people;
• With a fixed deduction of 50 people.

Income for the tax period does not exceed for the special tax regime:

• On the basis of a patent – 300 times the minimum wage (hereinafter referred to as the minimum wage), established by the law on the republican budget and effective as of January 1 of the corresponding financial year. In 2018, the minimum wage amounted to 28,284 tenge, respectively, income should not exceed 8,485,200 tenge;
• Based on the simplified declaration – 2,044 times the minimum wage, respectively 57,812,496 tenge;
• With the use of a fixed deduction – 12,260 times the minimum wage, respectively 346,761,840 tenge.

LIMITATIONS ON THE APPLICATION OF THE SPECIAL TAX REGIME

By type of activity. A business entity operating under a special tax regime is not entitled to engage in the following activities:

• production of excisable goods;
• storage and wholesale of excisable goods;
• sale of certain types of petroleum products – gasoline, diesel fuel and fuel oil;
• running lotteries;
• subsoil use;
• collection and acceptance of glassware;
• collection (harvesting), storage, processing and sale of scrap and waste of non-ferrous and ferrous metals;
• consulting services;
• accounting or auditing activities;
• financial, insurance and intermediary activities of an insurance broker and insurance agent;
• activities in the field of law, justice and justice;
• financial leasing activities.

By subject matter. The following subjects are not entitled to apply the special tax regime:

1) legal entities with structural subdivisions;

2) structural subdivisions of legal entities;

3) taxpayers with other separate structural subdivisions and (or) objects of taxation in different settlements.

For the purpose of taxation of persons applying special tax regimes, another separate structural subdivision of the taxpayer is recognized as a territorially separate subdivision, at the location of which stationary workplaces are equipped that perform part of its functions. The workplace is considered stationary if it is created for a period of more than one month.

The provision of this subparagraph does not apply to taxpayers engaged exclusively in the activity of leasing (renting) property;

4) legal entities in which the share of participation of other legal entities is more than 25 percent;

5) legal entities in which the founder or participant is at the same time the founder or participant of another legal entity that applies a special tax regime or features of taxation;

6) non-profit organizations;

7) payers of tax on gambling business.

Separately, the legislator singled out services that individual entrepreneurs and legal entities operating on the basis of a special tax regime based on a patent or a simplified declaration, providing services on the basis of agency contracts (agreements) are not entitled to engage in. Agency contracts (agreements) are civil law contracts (agreements) concluded in accordance with the legislation of the Republic of Kazakhstan, according to which one party (agent) undertakes, for a fee, to perform certain actions on behalf of the other party on its own behalf, but at the expense of the other party or on behalf of and at the expense of the other party.

The tax period for applying the special tax regime based on a patent or using a fixed deduction is a calendar year.

The tax period for applying the special tax regime based on the simplified declaration is half a year.

It is VERY IMPORTANT to pay attention to the deadlines for applying for a special tax regime:

• On the basis of a patent – for a newly formed entity, no later than three working days from the date of submission of a notice of the commencement of entrepreneurial activity, it is necessary to submit a calculation of the cost of a patent in paper or electronic form to the appropriate state revenue authority at the location;
• On the basis of a simplified declaration – newly formed legal entities send a notification to the state revenue authorities no later than five working days after the state registration of the legal entity in the justice authorities. Late filing of the notification does not deprive the legal entity of the right to file a notification on the transition to a special tax regime on the basis of a simplified declaration, but this exception applies only to newly formed small businesses.

Starting date of application of the tax regime:

• For newly formed individual entrepreneurs, this is the date of registration as an individual entrepreneur in the state revenue authorities;
• For newly formed legal entities that submitted a notification of the applicable taxation regime within the prescribed period, the date of state registration with the justice authorities.

These are the main points that beginner entrepreneurs need to pay attention to when choosing a special tax regime. In case of difficulty in choosing a tax regime, the lawyers of the law firm KORGAN can provide detailed advice at the office of our company.

Rail transportation consulting

The law firm KORGAN provides legal services in the field of cargo transportation by rail as well as representation of interests in relations with National Company Kazakhstan Temir Zholy JSC:

• Representation of interests in court, in case of contesting the amount of carriage charges;
• Challenge of the accrued amounts of shortfall in freight charges at the destination station, as well as those identified during the audit conducted by the auditors of NC KTZ JSC;
• Challenge a fine for failure to comply with a cargo transportation plan;
• Challenge of accrued amounts for demurrage of wagons on station tracks, at junction stations;
• Conducting claim work on the fact of theft of goods en route the car;
• Conducting claims and lawsuits to collect debts from NC KTZ JSC;
• Challenge the results of the tender conducted by JSC “NC” KTZ “.

Provision of additional services in the field of cargo transportation by rail as well as in relations with the National Company Kazakhstan Temir Zholy JSC:

• Calculation of freight charges for the carriage of goods by rail;
• Obtaining the code of the railways of the consignor/consignee at NC KTZ JSC;
• Obtaining the payer code at NC KTZ JSC;
• Registration of forwarder code in JSC “NC “KTZ”;
• Submission of an application by GU-12 for the supply of wagons;
• Consultations on the transportation of goods by rail.

Registration of LLP with foreign participation

One of the common organizational and legal forms of legal entities being created in Kazakhstan is a limited liability partnership (hereinafter – LLP), in connection with which we will consider the procedure for registering a LLP.

The activities of the LLP are regulated by the Law of the Republic of Kazakhstan “On Limited and Additional Liability Partnerships”, and the procedure for registering a legal entity is regulated by the Law of the Republic of Kazakhstan “On State Registration of Legal Entities and Record Registration of Branches and Representative Offices”.

An LLP can be formed by one or several founders, respectively, if an LLP is created by one founder, then it is created on the basis of a sole decision, and if an LLP is created by several founders, then a protocol and a memorandum of association are signed, then the charter of the legal entity is approved.

For the state registration of an LLP, the registration authority requires the submission of the following documents from the founders:

• For non-resident individuals, a copy of a passport or other identity document with a notarized translation into Kazakh and Russian is required;
• For non-resident legal entities, a legalized extract from the trade register or other legalized document is required, which certifies that the founder is a legal entity under the laws of a foreign state, with a notarized translation into Kazakh and Russian.

Depending on the country where the subject is registered, an apostille or consular legalization of the document is required.

After all the documents have been collected, it is necessary to submit the documents for registration, at this stage an application is filled out to the registering authority on the creation of an LLP, the state fee is paid (only for large businesses), more about the differentiation into categories of business entities on the website. On this, the procedure for creating an LLP is considered completed and it is only necessary to wait for registration, which takes 1-2 business days.

Regarding the assignment of IIN and BIN

In accordance with the Tax Code of the Republic of Kazakhstan and the Law of the Republic of Kazakhstan “On National Registers of Identification Numbers”, for non-residents who intend to receive income from sources in the Republic of Kazakhstan, it is necessary to assign an individual identification number (hereinafter – IIN) for individuals and a business identification number (hereinafter – BIN) for legal entities.

To obtain an IIN, a non-resident individual must submit notarized copies of the following documents:

• Identity card of a foreigner or stateless person;
• Confirming tax registration in the country of citizenship, indicating tax registration or its equivalent, if such document is available;
• Fill out an application at the State Revenue Office.

To obtain a BIN, a non-resident legal entity must submit notarized copies of the following documents:

• constituent documents;
• confirming state registration in the country of incorporation of a non-resident, indicating the registration number or its equivalent;
• confirming tax registration in the country of incorporation of a non-resident, indicating the tax registration number or its equivalent, if such a document is available;
• Fill out an application at the State Revenue Office.

For its part, KORGAN LAW COMPANY performs the following actions:

• Preparation of constituent documents: memorandum of association, charter, order, decision of the founder;
• Registration with the justice authorities, state revenue authorities, statistics authorities, in agreement with the client, support for the initial submission of the necessary reports;
• Making a seal after agreeing the design with the client, preparing the necessary documents for opening an account with the Bank;
• Re-registration of a legal entity in the event of: changing the name, increasing or decreasing the authorized capital, changing the founders, as well as making other changes that do not require state re-registration: changes in the charter, increasing the size of the authorized capital, changing the address of the location, changing the type of activity and change of director.

Deadlines for imposing administrative penalties in case of violation of traffic rules by drivers of vehicles

Article 592 of the Code of the Republic of Kazakhstan “On Administrative Offenses” establishes that:

1. Drivers of vehicles exceeding the established speed of the vehicle by 10 to 20 kilometers per hour – entails a fine in the amount of 10 (ten) monthly calculation indices.

2. Exceeding the established speed of the vehicle by 20 to 40 kilometers per hour – entails a fine in the amount of 15 (fifteen) monthly calculation indices.

3. Exceeding the established speed of the vehicle by more than 40 kilometers per hour – entails a fine in the amount of 30 (thirty) monthly calculation indices.

4. Actions provided for by parts one, two and three of this article, committed repeatedly within a year after the imposition of an administrative penalty – entail a fine in the amount of 40 (forty) monthly calculation indices.

Any administrative offense is subject to recording in the form of drawing up a protocol by an authorized person (Article 803 of the Code of Administrative Offenses of the Republic of Kazakhstan), or in cases where it is drawn up in the absence of a person against whom a case has been initiated on the grounds provided for in subparagraph 4) of part one of Article 802, the testimony of special automated measuring means of fixing the commission of an administrative offense in the field of road transport and road safety by photographing, video filming the traffic situation, determining the speed and direction of the vehicle, the actions of other road users, in other words, fixing the speed of movement with speedometers or the system for registering offenses with cameras “Sergek” and other cameras. It should be noted that an offense recorded by a speedometer is not documented by drawing up a protocol, but a fine is issued in the form of an order on the need to pay a fine with the testimony of a special control and measuring technical means or device, which is duly notified to the owner (owner) of the vehicle (Article 807 of the Code of Administrative Offenses of the Republic of Kazakhstan). ), that is, the article establishes the need for proper notification of the owner, which, unfortunately, is not observed in practice.

Article 62 of the Code of the Republic of Kazakhstan On Administrative Offenses establishes that a person is not subject to administrative liability after two months from the date of committing an administrative offense, that is, if two months or more have passed from the moment the offense was recorded and you were not properly aware of the fine imposed, the violator is not subject to administrative liability. If the decision to impose an administrative penalty was not given within a year from the date of entry into force, then Article 890 of the Code of Administrative Offenses of the Republic of Kazakhstan on the application of the statute of limitations for a committed administrative offense is applied; after a year, no bailiff will be able to accept such material for production , since the Law of the Republic of Kazakhstan “On Enforcement Proceedings and the Status of Bailiffs” establishes that a bailiff is not entitled to adopt decisions of a body (official) authorized to consider cases of administrative offenses – after a year from the date of issuance of the relevant decision.

How to avoid being included in the register of unscrupulous participants in public procurement

Recognition of a potential supplier as an unscrupulous participant in public procurement and its inclusion in the register

The register of unscrupulous participants in public procurement sounds scary for any entrepreneur, but this is on one condition, if you are really an unscrupulous entity. For a conscientious entrepreneur, there are many ways to avoid being included in the register with the skillful application of current public procurement legislation and knowledge of their rights.

In accordance with paragraph 4 of Art. 12 of the Public Procurement Law in the register of unscrupulous participants in public procurement is a list of:

• suppliers with whom customers unilaterally terminated public procurement contracts, during the execution of which it was established that the supplier does not meet the qualification requirements and requirements of the tender documentation (auction documentation) or provided false information about its compliance with such requirements, which allowed him to become the winner of the competition (auction), as a result of which such an agreement was concluded;
• Potential suppliers identified as winners (potential runner-up suppliers) who avoided entering into a public procurement contract
• suppliers who have not fulfilled or improperly fulfilled their obligations under public procurement contracts concluded with them.

The register of unscrupulous participants in public procurement is formed on the basis of a court decision that has entered into force.

From the analysis of Article 12 of the Law, it follows that the legislator imposes an obligation on the customer no later than thirty calendar days from the date when he became aware of the fact of a violation by a potential supplier to apply to the court within the same period with a claim in compliance with all norms of the Civil Procedure Code of the Republic of Kazakhstan.

This requirement of the Law is imperative, failure to comply with the deadlines for filing a claim with the court entails a refusal of the claim.

That is, to put it simply, if the Customer, represented by a state body or another subject of public procurement, has not filed a claim for inclusion in the list of unscrupulous participants in public procurement, then this circumstance is an unconditional basis for refusing to satisfy the claims.

Let’s consider another case.

If you became the winner in public procurement, concluded a public procurement contract, started work under the concluded contract, but for some reason could not fulfill your obligations under the contract on time, in connection with which the Customer files a claim against your organization to the court for recognition as an unfair participant in public procurement.

The question arises what to do?

If we are talking about construction work, then there may be cases when the Customer could not provide a formalized site for the start of construction, thus, construction was not started on time, for “safety net” it is necessary to write letters to the Customer to eliminate violations. During construction work, situations may arise when it is necessary to replace materials and work that were included in the design and estimate documentation due to the fact that building materials cannot be used in the performance of work, which raises a question for the design organization to agree on the replacement of materials and making changes to the design and estimate documentation.

This takes time and for this you need to be supported by evidence in the form of appropriate correspondence with the design organization, which allows you to fix the timing of sending letters and receiving appropriate answers to them, which gives you additional “trump cards” in court when protecting your interests, since in case of delay in fulfillment of obligations under the public procurement contract You can justify your delay with the available written evidence.

In accordance with clause 5 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 14, 2012 No. 5 “On the application of the legislation on public procurement by the courts”, when considering claims for recognition of suppliers as having improperly fulfilled their obligations under public procurement contracts, courts must take into account the fault of the supplier as grounds for civil liability in accordance with Art. 359 of the Civil Code of the Republic of Kazakhstan, as well as the resulting negative consequences for the customer, based on the criteria of fairness and reasonableness in accordance with part 6 of Art. 6 Code of Civil Procedure of the Republic of Kazakhstan. Negative consequences should be understood as the infliction of such damage to the party to the contract that it has largely lost what it was entitled to count on when concluding the contract.

Thus, if your actions do not constitute guilty actions on your part and there is no damage caused to state interests, in connection with which there are no grounds for recognizing your organization as an unscrupulous participant in public procurement.

Correct bookkeeping is the key to victory in court

Having become acquainted with the judicial practice of civil cases of clients of the law firm KORGAN, the results of which revealed errors made by clients in the preparation of accounting and financial documents. The purpose of this generalization is to draw the attention of customers to the mistakes made by employees of enterprises and to prevent future losses for the organization.

When one of the parties applies to the court for the enforcement of the amount of debt, the court bases its conclusions on the basis of the evidence presented by the parties in the case, and as judicial practice shows, in this category of cases it is such that the economic court of one region can take into account the evidence of one party , and the court of another area, similar evidence may be ignored and not taken into account. The main evidence for this category of cases are primary accounting documents, properly executed.

Thus, the primary accounting documents are often the following:

• invoice;
• act of work performed (services rendered);
• invoice.

The Law of the Republic of Kazakhstan “On Accounting and Financial Reporting” states that accounting documentation includes primary documents, accounting registers, financial statements and accounting policies.

Accounting records are made on the basis of primary documents.

Order of the Ministry of Finance of the Republic of Kazakhstan dated March 31, 2015 No. 241 approved the Rules for maintaining accounting records.

Paragraph 2 of the Accounting Rules regulates the procedure for compiling primary accounting documents.

Timely and high-quality execution of primary documents, their transfer within the established time limits for reflection in accounting, as well as the reliability of the data contained in them, is ensured by the persons who compiled and signed these documents.

To formalize the right of a person to act on behalf of the subject upon receipt of assets, a power of attorney is used, the form of which was approved by the order of the Minister of Finance of the Republic of Kazakhstan dated December 20, 2012 No. 562 “On approval of forms of primary accounting documents” (registered in the Register of State Registration of Regulatory Legal Acts under No. 8265 ) (hereinafter – Order 562). Powers of attorney are issued to persons with whom a written agreement has been concluded on full liability for the storage of money and assets. The power of attorney is signed by the management of the subject and certified by a seal. Individual entrepreneurs certify with a seal if it is available.

In the context of the foregoing and reinforcing everything with practical experience, we strongly recommend:

• When sending primary accounting documents for signing, also send a free-form cover letter with the following content: “We are sending primary accounting documents to your address for signing, in case of refusal to sign, please give a written reasoned answer ….” this cover letter must be made in 2 (two) copies;
• Categorically refuse to transfer the goods if: upon receipt of the goods, the buyer presents a power of attorney to receive the goods, but the person authorized by the power of attorney does not correspond to the person who presents the power of attorney, along with the power of attorney, it is necessary to request an identity document (copies) both for the power of attorney and and upon receipt of the goods;
• Not signing the invoice or signing by a person not authorized by a power of attorney, in which case the goods may be considered not transferred to the proper person.

Re-registration of a legal entity

This article will be devoted to the state registration of changes and additions to the constituent documents of a legal entity.

To begin with, we will determine which cases are subject to state re-registration. According to the Civil Code of the Republic of Kazakhstan, a legal entity is subject to re-registration in the following cases:

• reducing the size of the authorized capital;
• name changes;
• changes in the composition of participants in business partnerships.

If your case does not fall into the above points, then we will consider the state registration of the amendments and additions to the constituent documents of the legal entity. State registration of changes and additions to the constituent documents of a legal entity is carried out in the following cases:

• change location;
• Adoption of the Charter (Regulations) in a new edition;
• director changes.

For state registration of changes and additions made to the constituent documents of a legal entity in the event of a change in location, the following shall be submitted to the registering authority:

• statement;
• decision of the founder on making changes and additions to the constituent documents of the legal entity, sealed by the legal entity;
• originals of the former constituent documents of a legal entity;
• document confirming the actual location (original).

If the owner of real estate is an individual, then a notarized permission of the owner is required to provide a legal address to a legal entity. It should be noted that it is the consent of the owner of an individual that is necessary, since an individual entrepreneur, that is, an individual entrepreneur, is an individual, previously registering authorities simply required a real estate lease agreement with an individual entrepreneur. Thus, in order to exclude a refusal to re-register a legal entity, we draw your attention to this circumstance.

State registration of changes and additions to the constituent documents of a legal entity does not entail state (accounting) re-registration.

Re-registration of a legal entity and notification procedure

In what cases is it necessary to re-register a legal entity?

In what cases is it necessary to notify the registration authority?

Having your own business, you often wondered whether it is necessary to re-register if, for example, you changed your legal address, or changed the founder or director, or even changed the name of the legal entity? Let’s talk about everything in order.

According to the provisions of the Civil Code of the Republic of Kazakhstan, a legal entity is subject to state re-registration in the following cases:

• reducing the size of the authorized capital;
• name changes;
• changes in the composition of participants in business partnerships.

Each of the types of state re-registration of a legal entity is individual and requires a specific list of documents.

At the same time, when undergoing state re-registration, for one of the reasons indicated above, you should provide the registration authority with such documents as:

• Application in the form established by the Ministry of Justice of the Republic of Kazakhstan (provided at the PSC);
• Decision (if there is one Founder) and/or Minutes of the general meeting (if there are two or more founders), providing for the introduction of amendments and additions to the constituent documents of a legal entity, sealed by a legal entity;
• Three copies of constituent documents (regulations) with amendments and additions for a legal entity;
• Originals of the former constituent documents of a legal entity;
• Receipt or other document confirming the payment to the budget of the registration fee for state re-registration of a legal entity or accounting re-registration of a branch (representative office).

The above list is mandatory for state re-registration of a legal entity, as it is regulated by the current legislation of the Republic of Kazakhstan.

Systematically, during the state re-registration of a legal entity, we are faced with the concept of Notification nature, which in turn leads to new questions, what is this Notification procedure, why and for what cases is it needed?

As it was established above, the grounds for re-registration of a legal entity are exhaustive, in the context of this, there is also a need for a Notification Procedure.

The notification procedure is the following, and it is necessary: ​​when changing the Head of the legal entity and / or changing the address of the location of the legal entity.

When changing the address of the location of a legal entity, the following documents must be submitted to the registration authority:

1) The decision of the founder to change the address;

2) Lease agreement or real estate purchase and sale agreement (indicating the new address of the location of the legal entity);

When changing the Director/Head of a legal entity:

1) Decision of the sole founder on the appointment of the Director / Head of the legal entity;

2) Order of the new Director / Head of the legal entity on taking office.

At the same time, it is worth noting that Article 466 of the Code of the Republic of Kazakhstan “On Administrative Offenses” establishes responsibility for carrying out activities without re-registration and untimely notification of the registration authority.

Carrying out activities without re-registration of a legal entity entails a fine for small businesses or non-profit organizations in the amount of ten, for medium-sized businesses – in the amount of twenty, for large businesses – in the amount of forty monthly calculation indices.

Untimely notification of the registering authority about a change in the location of a legal entity – entails a fine for small businesses or non-profit organizations in the amount of five, for medium-sized businesses – in the amount of ten, for large businesses – in the amount of thirty monthly calculation indices.

We value our customers and want to help you and sincerely hope that this article will help you in this or that situation!

The article was prepared by the lawyer of the law firm KORGAN – Aliya Amanbayeva.

The procedure for notification and reporting on transactions concluded with non-residents

On October 19, 2016, by order of the Minister of Finance of the Republic of Kazakhstan, the Rules, forms and deadlines for notifying state revenue authorities for the following activities were approved:

• A – provision of legal assistance, including legal information, protection and representation of the interests of citizens and organizations, as well as their advice;
• B – studying and conducting public opinion polls, sociological surveys (with the exception of public opinion polls and sociological surveys conducted for commercial purposes), as well as disseminating and posting their results;
• C – collection, analysis and dissemination of information, except when the specified activity is carried out for commercial purposes.

According to the Rules, when providing legal assistance, individuals and legal entities, including those providing legal information, protecting and representing the interests of citizens and organizations, as well as advising them, notify the state revenue authorities at the place of residence / location of the receipt of money and (or) other property from foreign organizations, foreigners, stateless persons on transactions concluded with them for an amount exceeding 1 tenge within 10 working days from the day following the day of the conclusion of the transaction, with the obligatory filling in of data on the money and (or) other property to be received from foreign states , international and foreign organizations, foreigners. Notification of the state revenue body is carried out: in person – on paper or in electronic form.

In addition, the Order of the Minister of Finance No. 554 approved the Rules, forms and terms for notification by individuals and legal entities of state revenue authorities about the receipt and expenditure of money and (or) other property from foreign companies. In accordance with the Rules, individuals and legal entities, when providing legal assistance, including legal information, protection and representation of the interests of citizens and organizations, as well as their advice; submit to the state revenue authorities at the place of residence / location information on the receipt and expenditure by individuals and legal entities of money and (or) other property received from foreign states, international and foreign organizations, foreigners, stateless persons, on transactions concluded with them in the amount, exceeding 1 tenge. Information is submitted in the form approved by the order no later than the 15th day of the second month following the reporting quarter. In the absence of data to be reflected, this information is presented with zero values. Persons submit a notification of their choice: in person – on paper and in electronic form.

Legal aspects of downsizing

Termination of the employment contract at the initiative of the employer or Can you get “under the reduction”?

Due to the difficult economic situation in the country, the number of those who fall “under the reduction” is growing every day, and this issue is becoming more and more urgent. Besides the fact that this is a big problem that raises a number of questions regarding finances, stability, future and habitual way of life, it is also psychologically unpleasant. It is quite logical to ask the question “why me?”.

Let’s look at this situation from a legal perspective, shall we? So, the list of those who can’t be laid off:

• You are less than 2 years away from retirement. It is not allowed to terminate an employment contract with employees before reaching the retirement age established by the Law of the Republic of Kazakhstan “On Pension Provision in the Republic of Kazakhstan” without a positive decision of a commission formed from an equal number of representatives from the employer and employees.
• You are temporarily unable to work or while you are on vacation. According to the Labor Code, it is not allowed to terminate an employment contract at the initiative of the employer during a period of temporary disability and the employee is on vacation.
• You are pregnant or raising children under the age of 3, or you are a single mother raising a child under the age of 14 (a disabled child under 18) or another person raising one of these categories of children without a mother. Termination of an employment contract at the initiative of the employer due to a reduction in the number or staff of employees is not allowed with pregnant women who have provided the employer with a certificate of pregnancy, women with children under the age of three, single mothers raising a child under the age of fourteen (a disabled child up to eighteen years), other persons raising the specified category of children without a mother.

If you do not fall into any of the categories, then it is important to know that when terminating an employment contract due to a reduction in the number or staff of employees, the Employer is obliged to notify you in writing of the termination of the employment contract at least one month in advance, if the labor, collective agreements do not a longer notice period. With your written consent, termination of the employment contract may be made before the expiration of the notice period.

The termination of the employment contract is documented by the act of the employer, which must indicate the grounds for termination of the employment contract in accordance with the Labor Code of the Republic of Kazakhstan.

Also an important point regarding paid annual labor leave and payment of compensation upon termination of the employment contract. If you partially or did not use your annual leave at all, then you are entitled to a compensation payment for the days of paid annual leave that you did not use.

Paid annual labor leave with the subsequent termination of the employment contract due to the expiration of its term may be granted in the event that the vacation time completely or partially goes beyond the term of the employment contract. The day of termination of the employment contract due to the expiration of its term is considered the last day of paid annual leave.

Litigation in civil cases arising from tax disputes

The Supreme Court of the Republic of Kazakhstan is working on the generalization of judicial practice. Since tax disputes affect the interests of all individual entrepreneurs and legal entities, many will be interested in considering the issues of judicial practice in tax disputes. Your attention is presented to the main points from the generalization of judicial practice in the consideration of civil cases in disputes arising from tax legislation.

Cases on tax disputes, where one of the independent subjects of dispute by the applicant is the act of a tax audit, the decision of a higher tax authority adopted on the results of consideration of the taxpayer’s complaint about the notification of the results of a tax audit, or other requirements that are not subject to resolution in civil proceedings.

Based on the provisions of Article 638 of the Tax Code that the decision based on the results of a tax audit is a notification issued by the tax authority on the results of a tax audit, in case of disagreement of the taxpayer with the assessed amounts of taxes and other mandatory payments to the budget, obligations to accrue, withhold, transfer of mandatory pension contributions, calculation and payment of social contributions and penalties, reduction of losses, non-confirmation for refund of excess VAT and (or) corporate (individual) income tax withheld at the source of payment from income of non-residents, only a notification is subject to judicial appeal. The court verifies the legality of the accrual of the disputed amounts, taking into account the conclusions set out in the tax audit report.

The tax audit act may be appealed if the taxpayer does not agree with its conclusions, which did not entail the above consequences, but affect his rights and obligations, including in future tax periods. An appeal against an inspection act is regarded as an appeal against the actions of officials of tax authorities.

Despite the fact that the legal position of the Supreme Court was clearly set out in the regulatory resolutions of both 2006 and 2013, some courts of first instance continue to accept and consider on the merits applications to challenge a tax audit act that did not entail any other legal consequences than the notice based on it. The courts of appeal and cassation leave the violations committed without attention. Similar facts take place in the practice of the courts of Kostanay and Pavlodar regions.

4. Cases on disputes related to pseudo-entrepreneurship and invalidation of the registration of a legal entity

So far, there has been a significant number of cases related to pseudo-business.

These are mainly cases based on applications by counterparties of pseudo-enterprises to challenge notifications about the elimination of violations identified by the tax authorities based on the results of in-house audits, and notifications about the results of a tax audit containing charges of taxes and penalties.

As the study of cases has shown, in recent years a stable judicial practice has developed in these cases. When considering cases on disputes about contesting notifications based on the results of an in-house audit, the courts limited themselves to clarifying the issue of whether the tax authority had legal grounds for issuing such a notification. In particular, the final decision in the criminal case, which established the fact of committing pseudo-business.

In cases of disputing notifications based on the results of tax audits, the courts proceeded from the prejudicial nature of judicial acts that have entered into legal force in criminal cases and resolved cases regardless of whether transactions with the counterparty of the false enterprise are indicated in the court verdict (the decision to terminate the criminal case on non-rehabilitating grounds) or not . Also guided by paragraph 20 of the normative resolution of the Supreme Court of the Republic of Kazakhstan No. 1 dated January 12, 2009 “On some issues of application of the legislation on pseudo-business”, in accordance with which, in cases on the legality of exclusion from deductions of expenses and from the offset of VAT amounts, evidence of the actual commission transactions cannot be recognized as reliable, since the court verdict that has entered into legal force establishes otherwise.

In the same connection, claims filed with the aim of subsequently resolving the issue of the legality of the exclusion from the deductions of expenses and from the offset of VAT amounts from the counterparty of the pseudo-enterprise (for example, the validity of transactions) are not subject to satisfaction.

At the same time, from January 1 of this year, amendments and additions made to articles 115 and 257 of the Tax Code came into force, which can have a significant impact on the formation of judicial practice in this category of cases. By virtue of these rules, CIT expenses and from the VAT offset cannot be excluded from deductions for transactions with taxpayers that are not specified in the verdict or court order.

However, in the course of this summary, the regional courts did not provide information on this issue, they did not send cases, according to the oral information of some courts, the cases are still at the stage of litigation.

With regard to tax disputes arising from the invalidation of the registration of the taxpayer’s counterparty, it should be noted that, according to paragraph 9 of the regulatory decree, the amounts of VAT on transactions with the above counterparty are subject to deduction if there is a decision of the tax authority to deregister it for VAT from the date of registration for such an account. At the same time, the Tax Code does not provide for a ban on the deduction of costs for such transactions on the grounds that there is a court decision to invalidate the registration of an individual entrepreneur or legal entity.

Despite this clarification, the tax authorities, based on the results of inspections of transactions with such a counterparty, exclude not only from the VAT offset, but also from the deductions the expenses when calculating CIT.

The jurisprudence in this category of cases is also ambiguous. In some cases, the courts are guided by the provisions of the regulatory resolution, and in other cases, they recognize the correct position of the tax authorities and refuse to satisfy the taxpayers’ applications in full. At the same time, it is assumed that the grounds for declaring the registration of a legal entity invalid are fatal violations committed during the registration of a legal entity. And the consequence of the recognition of the illegal registration of a legal entity is the invalidation of all transactions concluded with its participation as an incompetent person. Accordingly, all counterparties of such transactions may experience all the adverse consequences of their exclusion from CIT deductions and from the VAT offset of expenses on settlements with an illegally registered person from the moment of its registration.

5. Cases on claims of tax authorities for the recognition of transactions as invalid

In accordance with subparagraph 12) of paragraph 1 of Article 19 of the Tax Code, from January 1, 2014, the tax authorities have been empowered to bring claims to the courts to declare transactions invalid.

Along with this, amendments and additions were also made to Articles 115 and 257 of the Tax Code. According to subparagraph 4-1) of Article 115 and subparagraph 3) of paragraph 3 of Article 257 for a transaction declared invalid on the basis of a court decision that has entered into legal force, when calculating CIT, expenses are not deductible and the amount of VAT is not subject to offset.

Giving tax authorities the power to challenge taxpayers’ transactions creates a potential threat of violating the principle of unreasonable non-interference in the activities of individuals and the stability of civil circulation. In this regard, when filing such claims, the courts face an important task of verifying the existence of all conditions (prerequisites) to satisfy the stated requirements.

The right of the tax authority to file a claim for the recognition of the transaction as invalid can only be exercised insofar as the satisfaction of the relevant requirement is aimed at fulfilling the tasks of the tax authorities defined by Article 18 of the Tax Code. Namely, to ensure revenues to the budget of taxes and fees.

The filing by the tax authority of the said claim in court must be preceded by the establishment of the following facts: 1) violation by the taxpayer of the tax obligation, expressed in the payment of a smaller amount of cash payments to the budget; 2) committing a tax violation as a result of participation in a civil liability; 3) the presence of a causal relationship between the private law action and the negative public law consequence that has occurred from the first two facts.

The practice of considering cases of this category indicates that the courts, as a rule, satisfy these claims if the transactions entail negative tax consequences and violate the interests of the state, and one of the consequences of their invalidity will be an increase in budget revenue.

Local courts have questions about the statute of limitations for claims for the recognition of transactions as invalid, their relationship with tax terms.

In accordance with paragraph 1 of Article 178 of the Civil Code, the general limitation period is set at three years.

As a general rule, the running of the limitation period begins from the day when the person knew or should have known about the violation of the right.

Clause 2 of Article 162 of the Civil Code determines the limitation period for disputes related to the invalidity of a transaction on the grounds provided for in clauses 9 and 10 of Article 159 of the Civil Code. It is a year from the date of termination of violence or threat, under the influence of which the transaction was made, or from the day when the plaintiff learned or should have known about the circumstances that are the basis for declaring the transaction invalid.

At the same time, Article 46 of the Tax Code establishes the limitation period for a tax liability and claim. Unless otherwise provided by this article, such period shall be 5 years.

Naturally, in each specific case, the limitation period may not coincide with the tax deadlines. In such cases, one should be guided by the civil law limitation period.

In a number of cases, when tax authorities challenged transactions concluded before January 1, 2014, the defendants pointed to the unlawfulness of filing claims due to the absence of such a right by the tax authorities at the time the transaction was concluded.

However, this position is not based on the law, since the tax authority, as well as another person, can challenge the transaction within the limitation period established by civil law.

The analysis of cases showed that they can conditionally be divided into the following: 1) when there is a concluded written contract; 2) there is no such agreement, but there are invoices issued in accordance with Article 263 of the Tax Code.

Ambiguous practice of consideration of cases of this category has been established.

Often, the tax authorities go to court with a claim to invalidate the transaction concluded between the defendants on the basis of invoices.

At the same time, the study of cases considered in 2014 showed that the tax authorities, with reference to paragraph 3 of Article 152 of the Civil Code, equated the issuance of invoices by suppliers to the conclusion of a transaction in writing.

Therefore, when the tax authority filed a demand to invalidate invoices, they reasonably issued rulings to terminate the proceedings on the basis of subparagraph 1) of Article 247 of the Code of Civil Procedure.

According to paragraph 2 of Article 263 of the Tax Code, the payer of value added tax is obliged, when making turnovers for the sale of goods, works, services, to issue an invoice to the recipient of these goods, works, services, unless otherwise provided by this article.

That is, the invoice is issued by the supplier and, accordingly, signed by his authorized person. Thus, the invoice can be one of the proofs of the transaction, but not the transaction itself.

At the same time, in practice there are situations when there are only invoices and they are taken into account by the taxpayer when fulfilling their tax obligations. In such cases, the subject of dispute should be a transaction, confirmed by the presence of invoices. Therefore, if the tax authorities correctly state their requirements and there is a sufficient set of evidence of the invalidity of the transaction, it is subject to recognition as such with all the ensuing consequences.

It should be noted that the commission by a private business entity of actions to issue an invoice without actually performing work, rendering services, shipping goods in order to extract property benefits, which caused large damage to a citizen, organization or state, entails criminal liability under Article 216 of the Criminal Code of the Republic of Kazakhstan.

Issuance by the taxpayer of a fictitious invoice, namely, issued by a payer who is not registered for value added tax, as well as by persons who actually did not perform work, provide services, ship goods, and include the amount of value added tax, entails administrative responsibility under Article 280 of the Code of Administrative Offenses.

In this connection, the local courts have a question whether, before filing a lawsuit in civil proceedings, the tax authorities are obliged, in the manner prescribed by the Criminal Code and the Code of Administrative Offenses, to establish the elements of a crime or offense, or directly in civil proceedings it is possible to establish the fictitiousness of such invoices , as well as whether a court verdict on criminal liability, for example, on the fact of false business or issuing fictitious invoices, or tax evasion, is a prerequisite for satisfying such claims.

It is desirable that these facts be established in a criminal or administrative procedure. At the same time, situations are not excluded when the person who issued the fictitious invoice cannot be held liable for various reasons. Therefore, it is possible for the tax authorities to directly apply to the court in civil proceedings.

The courts of the East Kazakhstan region raise the question of whether the tax authorities can only demand that transactions be recognized as invalid, without requiring the collection of everything received from such transactions to the state revenue.

It should be noted that the tax authorities, within the framework of the tasks assigned to them by the tax legislation to ensure the completeness and timeliness of receipt of taxes and other obligatory payments to the budget, independently determine their requirements. In addition, when a transaction is declared invalid, the consequences provided for in subparagraph 4-1) of Article 115 and subparagraph 3) of paragraph 3 of Article 257 of the Tax Code occur. That is, a corresponding adjustment is made for CIT and VAT.

When resolving disputes in cases of contesting transactions concluded in writing, local courts reasonably proceed from the fact that at the time of the conclusion of the transaction, a tax liability must exist and the taxpayer must be notified about it. Evidence must also be provided showing that the other party to the transaction knew or should have known about the intention of the counterparty to evade the tax obligation.

The conducted generalization showed that in local courts there is an ambiguous practice of considering cases where one of the defendants is liquidated, including, either in connection with bankruptcy or in connection with the invalidation of its registration.

The courts of the Almaty region consider that in such cases the proceedings are subject to termination on the basis of subparagraph 6) of Article 247 of the Code of Civil Procedure. According to this rule, the court terminates the proceedings if the organization acting as a party to the case is liquidated with the termination of its activities and the absence of legal successors.

The practice of the courts of the East Kazakhstan region deserves a positive assessment, which provide a complete study of all the circumstances of the case, up to the involvement in the case of the former heads of a liquidated legal entity, a bankruptcy manager, etc.

The following category of cases is among the most common. Based on the results of an in-house audit, in connection with the identification of transactions by a taxpayer with a person recognized as a pseudo-enterprise on the basis of a verdict or court decision that has entered into force, a tax authority issues a notification based on the results of an in-house audit, which raises the question of independently eliminating the identified violations.

The taxpayer eliminates the violation by submitting additional tax reporting and invoices issued by another legal entity, that is, the supplier is replaced. Often, such suppliers at the time of submission of additional tax reporting have already been liquidated for various reasons.

The tax authorities, pointing out the fictitiousness of the submitted invoices, dispute the transactions by filing claims to declare them invalid.

The study of specific civil cases, as well as judicial practice, indicates that the courts make decisions both on the satisfaction of such claims and on their refusal. The analysis showed that the validity of the claim and the compliance with the law of the disputed transactions are subject to establishment by the courts in each individual case. If a set of evidence is established that confirms the reality of the conclusion and execution of the transaction, then the claim is subject to dismissal. And, conversely, in the absence of evidence or their insufficiency, a decision is made to satisfy the claim. Consequently, in each specific case, the courts must ensure a thorough and complete study of all the circumstances of the case and, depending on the established, resolve the dispute on the basis of the law.

6. Cases on claims of tax authorities to invalidate the registration of a legal entity

In accordance with subparagraph 12) of paragraph 1 of Article 19 of the Tax Code, the tax authorities have the right to bring claims to the courts for the liquidation of a legal entity on the grounds provided for in subparagraphs 1) and 2) of paragraph 2 of Article 49 of the Civil Code: in cases of bankruptcy and invalidation of the registration of a legal entity due to with violations of the law committed during its creation, which are irreparable.

According to civil law, the liquidation of business entities is the termination of a legal entity and. accordingly, the termination of his rights and obligations without succession. Thus, civil legal relations with the participation of such legal entities and, consequently, the rights and obligations of their counterparties are terminated. In this regard, the liquidation of absent legal entities is important not only for themselves, but also for all participants in civil legal relations associated with them. The general grounds and procedure for the liquidation of a legal entity are established by Articles 49-57 of the Civil Code.

As a generalization has shown, the cases of these claims can be divided into two categories:

1) – this is due to the presence of sentences recognizing taxpayers as false enterprises. Based on the prejudicial nature of the sentences that have entered into legal force, the requirements of the tax authorities are satisfied, the courts do not have problems and questions when considering such cases;

2) – these are cases in which tax authorities bring claims for invalidation of registration (re-registration) of a legal entity, registration of changes made to the constituent documents of a legal entity, indicating the absence of a legal entity at the place of registration, which indicates the provision of false information about the location , formal registration in order to avoid tax control at the former place of registration in the tax office, without the intention to carry out production activities.

The grounds for the liquidation of a legal entity are provided for in paragraph 2 of Article 49 of the Civil Code. At the same time, the legislator provided as independent grounds for the liquidation of a legal entity: in subparagraph 2) of paragraph 2 – the recognition of the registration of a legal entity as invalid due to violations of the law committed during its creation, which are irreparable, and in subparagraph 3) of paragraph 2 – the absence of a legal entity at the location or actual address, as well as founders and officials, without whom a legal entity cannot function for one year.

In practice, the tax authorities bring claims to invalidate the registration (re-registration) of a legal entity on the basis of the absence of a legal entity at the place of registration and the impossibility of exercising tax control in this regard.

The generalization showed the presence of ambiguous judicial practice in the consideration of such cases.

Some courts satisfy the claims of the tax authorities, justifying that the absence of the taxpayer at the address specified in the constituent documents, the impossibility of establishing the actual location does not allow taking measures against the taxpayer in accordance with the tax legislation, and is also one of the schemes for evading tax obligations .

Other courts refuse to satisfy the claim with reference to paragraph 5 of the regulatory decree, according to which the absence of a legal entity at the location indicated in the registration data cannot be attributed to a violation of the law specified in subparagraph 2) of paragraph 2 of Article 49 of the Civil Code. These violations are violations committed by a legal entity in the course of its activities.

In addition, different positions of the courts have been identified on the issue of whether the tax authority has the right to challenge state registration due to the absence of a legal entity at its location or at its actual address.

So, in the certificate of the Kostanay regional court it is noted that in such cases, the courts leave the claims of the tax authorities without satisfaction. Due to the absence of a legal entity at the place of registration, a claim can be filed on the basis of subparagraph 3) of paragraph 2 of Article 49 of the Civil Code, however, the tax authorities do not have the authority to bring such claims by virtue of subparagraph 12) of paragraph 1 of Article 19 of the Tax Code.

In other regions, the courts recognize that the tax authority has the authority to bring such claims and consider them on the merits.

Meanwhile, the legislator restricts the right of tax authorities to file claims by indicating the possibility of filing them in accordance with the legislation of the Republic of Kazakhstan. Consequently, these claims must be filed by prosecutors.

Round table on problematic issues in business

On June 03, 2016, the law firm KORGAN, together with the Karaganda city branch of the Nur Otan party, held a round table with the participation of representatives of the Financial Control Inspectorate for the Karaganda region, the Office of the Labor Inspectorate of the Karaganda region, the Department of Justice of the Karaganda region and the Department of Justice of Karaganda, regional chamber of entrepreneurs in the Karaganda region. The round table discussed the problems that arise in the course of entrepreneurial activities: during inspections by representatives of the labor inspectorate, during public procurement. Representatives of the justice authorities explained the innovations in the field of state registration of rights to real estate, clarified the issues of state registration of legal entities in electronic form, and also highlighted the protection of intellectual property rights. The representative of the regional chamber of entrepreneurs in the Karaganda region spoke about non-financial support for entrepreneurs, as well as programs for the development of entrepreneurship in the region.

Currently, the financial control bodies are working on in-house control of ongoing public procurement and control does not involve the punishment of administrative fines for customers represented by state institutions, but involves the use of preventive measures of influence – a warning or an indication of the need to eliminate the violations that have occurred. The types of cameral control, as well as frequently committed violations by Customers during public procurement, were considered. So the most common violation is: the presentation of requirements for the presence of work experience, the limitation of the delivery time of goods, while the legislator has set a minimum delivery time of 15 days, the absence of a technical specification in the tender documentation, as well as ignoring the requirements for the need to purchase goods and services from non-commercial organizations such as the Society for the Disabled, etc.

The norms of the new Labor Code of the Republic of Kazakhstan were clarified, one of the main innovations is the issuance of a certificate of trust to the employer, which is issued for three years during which the subject is not subject to inspection by the labor inspectorate, while one of the important conditions for issuing is the absence of traumatic and accidents at the enterprise, previous issuance of a certificate. Representatives of the labor inspectorate explained that in the event of a complaint from employees of the organization about the delay in the payment of wages, the absence of an employment contract, these applications are accepted for consideration by the labor inspectorate and, if the composition of an administrative offense is established, fines are imposed, for example, in relation to a small business entity, an administrative the fine is 60 monthly calculation indices.

It should be noted that at present the procedure for registering real estate and legal entities has been simplified as much as possible, in connection with the introduction of an electronic registration system. From January 01, 2015, an alternative procedure for registering real estate has been excluded, that is, at present, all real estate transactions made at a notary are automatically registered with the justice authorities, and therefore the term for registering real estate has been reduced from five days to one working day.

In the field of state registration of legal entities, the justice authorities have made great strides, so registration of a legal entity that is a small and medium-sized business requires only one working day instead of seven working days that were required earlier, a notification of the start of activities is sent through the e-government web portal and automatically the company is registered. Currently, there is no need to provide documents confirming the location of the organization, the charter, as well as a document confirming the payment of the state duty, since the payment of the fee for registration of a legal entity that is a small and medium-sized business has been canceled.

According to the results of the global competitiveness rating “Doing Business”, there is a change in Kazakhstan’s position for the better by 8 points. Last year, Kazakhstan ranked 42nd in the ranking. The Global Competitiveness Index was created for the World Economic Forum by Columbia University professor Xavier Sala-i-Martin (Columbia University) and was first published in 2004. The main goal of the Doing Business project is to rank the region in terms of ease of doing business. Implementation of this project in Kazakhstan will assist in the regulation of business activities by comparing business regulation and its compliance in individual regions of Kazakhstan. The project will also promote competition among cities in Kazakhstan and stimulate the dissemination of good practices such as successful reforms. The introduction of a subnational rating in Kazakhstan is a continuation of the systematic work of the Government to improve the business climate in the country.

The DoingBusiness rating consists of 10 indicators, including indicators such as ease of registering a business, obtaining building permits and connecting to electricity networks, obtaining loans, protecting property rights, and so on.

Within the framework of the Eurasian Economic Union, issues in the field of intellectual property are among the most important in the direction of economic integration.

In order to coordinate the actions of law enforcement agencies of the EAEU countries, on September 8, 2015 in Grodno, an Agreement was signed on the coordination of actions for the protection of intellectual property rights, aimed at ensuring a coordinated policy in the field of protecting intellectual property rights, as well as coordinating the actions of authorized state bodies of the countries -participants. A draft law “On amendments and additions to certain legislative acts of the Republic of Kazakhstan on the improvement of legislation in the field of intellectual property” has been developed, aimed at continuing the work of bringing national legislation to the standards of international law.

Over the past four years (2012 – 2015), the number of issued titles of protection for industrial property has increased by 40%. Of these, the main share is trademarks (82.7%). At the same time, a greater number of applications for them were received from foreign applicants (in 2015, 8253 or 69.3% of the total number – 11910), which indicates the attractiveness of the Kazakhstani market.

In the field of copyright, there is also a steady increase in applications for registration of rights (2014 – 2328, 2015 – 2484, + 6%).