On taxes and other obligatory payments to the budget (Tax Code)

Article 152. Features of conducting thematic audits to confirm reliability of excess VAT amounts

1. A thematic audit of reliability of excess VAT amount is carried out using a risk management system with respect to a taxpayer who submitted:

a tax application in connection with application of paragraphs 1 and 2 of Article 432 of this Code;

a claim for refund of excess VAT amount indicated in VAT declaration (hereinafter referred to as a claim for refund of excess VAT amount).

2. The audited period includes a taxable period:

which a taxpayer indicates in a tax application, in connection with application of paragraphs 1 and 2 of Article 432 of this Code;

unless otherwise provided by part three of this paragraph, starting from the tax period for which the taxpayer has filed a claim for the refund of the excess VAT amount, including the tax period in which the declaration for value added tax was submitted indicating the claim for refund of the excess value added tax amount.

Unless otherwise established by paragraph 3 of this article, the audited period specified in this paragraph shall also include tax periods in which no audits were conducted on this type of tax and which do not exceed the limitation period established by Article 48 of this Code.

For the taxpayers referred to in subparagraph 1) of part one of paragraph 2 of Article 434 of this Code, who have the right to apply a simplified procedure for refunding the excess value added tax amount, the audited period shall include the tax period for which the taxpayer has filed a claim for refunding the excess value added tax amount indicated in the value added tax declaration.

3. When conducting a thematic audit to confirm the reliability of excess VAT amount claimed for refund in accordance with Article 432 of this Code, the audited period includes the time period the running of which begins from the taxable period in which:

the construction of buildings and industrial facilities started;

a subsoil use contract was concluded in accordance with the procedure established by the legislation of the Republic of Kazakhstan.

When confirming the reliability of excess VAT amount claimed for refund in accordance with Article 432 of this Code, it is necessary to take into account results of tax audits, conducted pursuant to a taxpayer’s tax application in accordance with subparagraph 2) of paragraph 3 of Article 145 of this Code.

When confirming the reliability of excess VAT amount that emerged in taxable periods before January 1, 2013, it is necessary to take into account the results of taxpayer’s previous tax audits, including third-party audits.

4. Is excluded – by the Law of the Republic of Kazakhstan dated 02.04.2019 No. 241-VI (shall be enforced from 01.01.2019 г).

5. In case of export of goods, when determining VAT amount claimed for refund in accordance with this Code, it is necessary to take into account the customs authority’s information confirming the fact of export of goods from the customs territory of the Eurasian Economic Union under a customs export procedure.

In case of export of goods from the territory of the Republic of Kazakhstan to the territory of a member state of the Eurasian Economic Union, when determining VAT amount claimed for refund in accordance with this Code, it is necessary to take into account information from the documents specified in Article 447 of this Code.

6. In case of performing works on the processing of customer-supplied raw materials imported into the territory of the Republic of Kazakhstan from the territory of another member state of the Eurasian Economic Union for subsequent export of processed products to the territory of another state, when determining VAT amount claimed for refund in accordance with this Code, it is necessary to take into account information from the documents specified in Article 449 of this Code.

In case of performing works on the processing of customer-supplied raw materials imported into the territory of the Republic of Kazakhstan from the territory of one member state of the Eurasian Economic Union for subsequent sale of processed products to the territory of a state that is not a member of the Eurasian Economic Union, when determining VAT amount claimed for refund in accordance with this Code, it is necessary to take into account the customs authority’s information confirming the fact of export of processed products from the customs territory of the Eurasian Economic Union under a customs export procedure.

7. In case of export of goods, when determining excess VAT amount claimed for refund, it is necessary to take into account export of goods, for which currency proceeds were received on the taxpayer’s bank accounts with second-tier banks in the territory of the Republic of Kazakhstan, opened in accordance with the procedure established by the legislation of the Republic of Kazakhstan, or actual importation of goods delivered to the VAT payer by the buyer of exported goods under foreign trade commodity exchange (barter) transactions into the territory of the Republic of Kazakhstan.

In case of export of goods under foreign trade barter transactions, it is necessary to take into account the existence of an agreement (contract) on a foreign trade barter transaction, as well as a declaration for imported goods for goods supplied to the VAT payer by the buyer of exported goods under foreign trade commodity exchange (barter) transactions, when determining excess VAT amount claimed for refund.

In case of export of goods from the territory of the Republic of Kazakhstan to the territory of a member state of the Eurasian Economic Union under foreign trade commodity exchange (barter) transactions, the granting of loans in the form of objects when determining excess VAT amount claimed for refund, it is necessary to take into account the existence of an agreement (contract) on foreign trade commodity exchange (barter) transactions, an agreement (contract) for the granting of loans in the form of objects, as well as applications for the import of goods and the payment of indirect taxes on goods supplied to the VAT payer by the buyer of exported goods under the specified transactions.

In case of export of goods from the territory of the Republic of Kazakhstan to the territory of a member state of the Eurasian Economic Union under a lease agreement (contract) providing for the transfer of the right of ownership to it to the lessee, it is necessary to take into account foreign currency receipts on the taxpayer’s bank accounts with second-tier banks in the territory of the Republic of Kazakhstan, opened in accordance with the procedure established by the legislation of the Republic of Kazakhstan, confirming the actual receipt of the lease payment (with regard to compensation of the acquisition cost of the commodity (leased item).

In case of performing works on the processing of customer-supplied raw materials imported into the territory of the Republic of Kazakhstan from the territory of another member state of the Eurasian Economic Union for subsequent export of processed products to the territory of another state or to the territory of a non-member state of the Eurasian Economic Union, when determining excess VAT amount claimed for refund in accordance with this Code, it is necessary to take into account information on foreign exchange receipts on a taxpayer’s bank accounts with second-tier banks in the territory of the Republic of Kazakhstan opened in accordance with the procedure established by the legislation of the Republic of Kazakhstan.

The National Bank of the Republic of Kazakhstan and second-tier banks submit a statement on foreign currency receipts to tax authorities in accordance with the procedure and in the form approved by the authorized body in coordination with the National Bank of the Republic of Kazakhstan.

To receive this statement, tax authorities send an appropriate request for foreign exchange receipts as of the date of such a statement.

The requirements of this Paragraph for foreign currency receipts on a taxpayer’s bank accounts with second-tier banks in the territory of the Republic of Kazakhstan shall not apply to taxpayers specified in paragraph 2 of Article 393 of this Code:

specified in Paragraph 2 of Article 393 of this Code;

engaged in exploration and (or) production of hydrocarbons at sea under the production sharing agreement specified in Paragraph 1 of Article 722 of this Code.

8. In the course of a thematic audit, a tax authority shall schedule third-party audits of direct suppliers of goods, works, services of the audited taxpayer in accordance with the procedure set forth in Article 143 of this Code.

9. The reliability of VAT amount on transactions between the audited taxpayer and its direct supplier that is a taxpayer subject to tax monitoring is confirmed by a tax authority that scheduled the thematic audit, on the basis of tax returns and (or) the electronic invoice information system available to tax authorities.

10. If in the course of a thematic audit, a tax authority reveals violations based on the analysis of the Pyramid analytical report, it sends a notice provided for by subparagraph 10) of paragraph 2 of Article 114 of this Code to suppliers.

In this case, if the supplier of goods, works, services of the audited taxpayer is registered at the location of another tax authority, the tax authority that scheduled the thematic audit shall request the relevant tax authority for taking measures in accordance with this Code to eliminate violations revealed based on the analysis of the “Pyramid” analytical report by such suppliers of goods, works, services.

11. For the purposes of this Code, the “Pyramid” analytical report means the results of control exercised by tax authorities on the basis of the study and analysis of tax returns on VAT filed by the taxpayer (tax agent) and (or) information from information systems.

The “Pyramid” analytical report is drawn up for the taxable period specified in paragraph 2 of this article.

12. VAT shall not be refunded in the amounts for which as of the date of completion of a tax audit:

1) no reply has been received to requests for third-party audits to confirm the reliability of mutual settlements with the supplier;

2) violations were revealed with respect to the suppliers of the audited taxpayer based on the results of the analysis of the “Pyramid” analytical report;

3) the reliability of VAT amounts has not been confirmed;

4) the reliability of VAT amounts has not been confirmed due to the impossibility of a third-party audit, also because of:

the absence of a supplier at the location;

loss of the supplier’s accounting records.

In this case, the provisions of Subparagraph 2) of part one of this Paragraph shall not be applied in case of elimination of violations revealed based on the results of the “Pyramid” analytical report by the direct suppliers of the audited taxpayers:

who have the right to apply a simplified procedure for returning excess VAT amount;

implementing an investment project within the framework of republican industrialization map approved by the Government of the Republic of Kazakhstan, the value of which is not less than 150 000 000 times the monthly calculation index established by the Law on republican budget and effective as of January 1 of a relevant financial year;

carrying out activities under a subsoil use contract concluded in accordance with the legislation of the Republic of Kazakhstan and whose average tax burden ratio shall be not less than 20 percent calculated for the last 5 years preceding the taxable period in which excess VAT amount was claimed for refund;

engaged in exploration and (or) production of hydrocarbons at sea under the production sharing agreement specified in Paragraph 1 of Article 722 of this Code.

The act of tax audit indicates the basis for non-refund of VAT.

13. VAT is refunded on the basis of an opinion to the tax audit act in the form established by the authorized body in the following cases:

1) upon receipt of a reply to a tax authority’s request concerning the buyer of processed products in the case provided for in paragraph 6 of Article 393 of this Code;

2) when applying Article 432 of this Code.

14. The opinion to the tax audit act shall be drawn up on or before the 25^th day of the last month of a quarter at least in two copies and signed by tax officials. One copy of the opinion to the tax audit act is given to the taxpayer, who is obliged to make a note of receipt of the said opinion on the other copy.

15. The total amount of excess VAT confirmed by a thematic audit act and an opinion to the tax audit act shall not exceed the amount specified in the demand for the return of excess VAT amount for the audited period.

16. If by the time of a tax audit, a supplier has terminated activity due to liquidation and a liquidation tax audit has been carried out with respect to such a supplier, the confirmation of the offset VAT amount is made on the basis of the register of invoices for the goods sold, works performed and services rendered and (or) information of the electronic invoice information system with account of the results of the liquidation audit.

17. The provisions of this article also apply in the event of a thematic audit to confirm the authenticity of the amounts of excess of value added tax returned from the budget to the taxpayer in accordance with Article 434 of this Code, an unscheduled thematic audit to confirm the authenticity of the presented and returned amounts of excess of value added tax, as well as the inclusion by the tax authority of the issue of confirming the reliability of the amounts of excess of value added tax presented for refund in a comprehensive audit.

Footnote. Article 152 as amended by the Law of the Republic of Kazakhstan dated 02.04.2019 No. 241-VI (enforcement see Article 2); dated 10.12.2020 No. 382-VI (effective from 01.01.2021); dated 20.12.2021 No. 85-VII (shall be enforced from 01.01.2022).



Article 153. Features of conducting thematic audits of taxpayers that are tax agents on the confirmation of income tax claimed by a non-resident for refund from the budget in connection with application of the provisions of the international treaty regulating the avoidance of double taxation and the prevention of tax evasion

1. A thematic audit on the return of income tax from the budget on the basis of a tax application of a non-resident is conducted with respect to the tax agent for the fulfillment of its tax obligations for the calculation, withholding and transfer of income tax at the source of payment from the income of the non-resident who submitted such an application for the period determined in accordance with the procedure prescribed by Article 48 of this Code.

2. A tax authority is obliged to schedule a thematic audit within ten business days from the receipt of a non-resident’s tax application.

3. In the course of a thematic audit, a tax authority checks documents to establish:

1) the completeness of the tax agent’s fulfillment of tax obligations for the calculation, withholding and transfer of income tax at the source of payment from non-resident income;

2) that a permanent establishment was set up by a non-resident in accordance with Article 220 of this Code or an international treaty;

3) the registration of a non-resident applicant in accordance with the legislation of the Republic of Kazakhstan on state registration of legal entities and registration of branches and representative offices, registration as a taxpayer in accordance with the procedure prescribed by Article 76 of this Code;

4) the reliability of the data specified in the tax application for the return of income tax from the budget.