Налогообложение Резидентов и Неризидентов в Казахстане

1) royalties, honoraria, fees, and other payments for the use of or

granting the right to use property or intellectual property of the given

nonresident legal entity;

2) commission income for services;

3) interest on loans granted by the given nonresident legal entity;

4) expenditures not related to earning income from the nonresident legal

entity’s operations in the Republic of Kazakhstan;

5) expenditures that are not documented;

6) management and general administrative expenses of the nonresident legal

entity incurred outside the territory of the Republic of Kazakhstan.

2.5.1 Procedure for taxation of the net income of a nonresident legal

entity from doing business through a permanent establishment

The net income of a nonresident legal entity from doing business in

the Republic of Kazakhstan through a permanent establishment shall be

subject to taxation at the rate of 15 percent. (Net income shall be

understood to mean taxable income, less the amount of corporate income tax

assessed.) The amount of tax assessed on net income shall be reflected in

the corporate income tax return.

A nonresident legal entity shall be required to pay the tax on net

income from doing business through a permanent establishment within ten

business days of the deadline established for the filing of the corporate

income tax return.

2.5.2 Procedure for taxation of the income of a nonresident legal entity

in certain cases

The income of a nonresident legal entity that is not registered with a

tax authority, which it has earned from doing business in the Republic of

Kazakhstan through a permanent establishment, shall be subject to the

income tax at the source of payment without any deductions.

The income tax withheld at the source of payment by a tax agent shall be

credited against the discharge of the tax obligations of a nonresident

doing business through a permanent establishment.

2.6 PROCEDURE FOR TAXATION OF THE INCOME OF NONRESIDENT INDIVIDUALS

The income of a nonresident individual, as defined above, which is

not related to a permanent establishment of said individual, should be

subject to taxation at the source of payment following the procedure and

within the deadlines specified by the provisions of Articles 179–181 of Tax

Code of RK, with the exception of:

1) income from individual entrepreneurial activity through a permanent

establishment in the Republic of Kazakhstan;

2) interest on bank deposits;

3) payments related to the delivery of goods onto the territory of the

Republic of Kazakhstan under foreign trade transactions;

4) capital gains from the realization of securities;

5) income from operations with government securities;

6) interest accumulated (accrued) on debt securities at the time of their

purchase, paid by resident buyers (not issuers) to nonresidents.

The obligation and responsibility for the calculation and withholding

of the income tax at the source of payment, and for payment of the tax to

the state budget, shall be assigned to the person paying the income

(including a nonresident doing business in the Republic of Kazakhstan

through a permanent establishment). Such a person shall be recognized as a

tax agent in accordance with item 1 of Article 10 of Tax Code of RK.A

nonresident shall be recognized as a tax agent as of the moment said person

begins doing business in the Republic of Kazakhstan, if its period of

operation exceeds that established for the creation of a permanent

establishment. The income tax shall be withheld at the source of payment by

a tax agent regardless of the form and place of payment of the income.

Filing of tax reports

Tax agents shall be required to file a statement of income tax

withheld at the source of payment with tax authorities where they are

registered within the deadlines established under Article 182 of Tax Code

of RK.

2.6.1 Procedure for calculation and payment of the income tax on a

nonresident individual whose activities lead to the creation of a

permanent establishment

A nonresident individual who is engaged in individual entrepreneurial

activity in the Republic of Kazakhstan through a permanent establishment

shall be a payer of the individual income tax with regard to income related

to said activity, less deductions directly tied to this income, with the

exception of expenses that are not deductible in accordance with item 5 of

Article 184 and the provisions of Tax Code. Dependent personal services

(work for hire) provided by a nonresident individual shall not lead to the

creation of a permanent establishment of said individual.

2.6.2 Procedure for the taxation of a nonresident individual’s income in

certain cases

The income earned by a nonresident individual from sources in the

Republic of Kazakhstan that is not subject to the income tax at the source

of payment and that is not related to a permanent establishment of said

individual, including capital gains from the realization of securities

issued by residents, shall be subject to taxation, without taking any

deductions, at the rates established under Article 180 of Tax Code. Capital

gains from the realization of stocks and bonds that are on the stock

exchange’s official “A” and “B” lists shall not be subject to taxation. The

calculation and payment of the individual income tax shall be performed by

a nonresident individual independently within the deadlines established

under item 5 of Article 191 of Tax Code.

2.6.3 Procedure and deadlines for prepayment of the individual income tax

The following nonresident individuals shall pay the individual income

tax by making prepayments:

1) nonresident individuals earning income from individual entrepreneurial

activity in the Republic of Kazakhstan through a permanent establishment;

2) nonresident individuals earning income defined under subitems 14)–17) of

Article 178 of Tax Code, including other income defined under Articles

149–151 of Tax Code, with the exception of income subject to the income tax

at the source of payment.

Prepayments of the individual income tax for the period of operation

shall be made by a nonresident individual mentioned above, following the

procedure and within the deadlines established by Tax Code. The amount of

prepayments of the individual income tax, which are payable in equal

installments during the period that a nonresident is doing business in the

Republic of Kazakhstan, shall be determined on the basis of the amount of

tax indicated in a statement of the anticipated amount of individual income

tax. Nonresident individuals referred to in subitem 2) shall be required to

attach to the statement of the anticipated amount of individual income tax

an individual labor agreement (contract) or other agreement of a civil-

legal nature confirming the declared amount of taxable income. Prepayments

that are made shall be credited against the payment of the individual

income tax owed by a nonresident individual for the current tax period. A

final settlement and payment of individual income tax shall be effected

within ten business days of the date an individual income tax return for

the tax period is filed, but not later than ten business day prior to

departure from the Republic of Kazakhstan.

2.6.4 Statement of anticipated individual income tax and individual

income tax return

Nonresident individuals referred to in Article 191 of Tax Code of RK

shall be required to file with tax authorities serving the area where they

are staying a statement of the anticipated amount of individual income tax

for the period they are in operation, no later than 30 business days from

the date of their arrival in the Republic of Kazakhstan. The following

nonresident individuals shall file an individual income tax return with tax

authorities serving the area where they are staying within the deadline

established under Article 172 of this Code, or in the event of the

termination of their entrepreneurial activity and their departure from the

Republic of Kazakhstan during the current tax period, no later than ten

business days prior to their departure:

those earning income from sources in the Republic of Kazakhstan that is not

subject to the income tax at the source of payment;

those engaged in entrepreneurial activity in the Republic of Kazakhstan for

more than 30 calendar days or earning income from sources in the Republic

of Kazakhstan in excess of 500 times the monthly index factor during the

tax period.

2.7 SPECIAL PROVISIONS REGARDING INTERNATIONAL AGREEMENTS

The Tax Code of RK gives provisions of an international agreement to

avoid dual taxation and prevent evasion of taxation of income or property

(capital) to which the Republic of Kazakhstan is a party (referred to

hereinafter as an international agreement for the purposes of Articles

193–204 of Tax Code of RK) shall apply to persons who are residents of one

or both of the states that have concluded such an agreement. This statement

does not extend to a resident of a state with which an international

agreement has been concluded if this resident uses the provisions of the

international agreement in the interests of another person who is not a

resident of a state with which an international agreement has been

concluded. The administration of international agreements shall be carried

out following the procedure established by the authorized government agency

in accordance with the provisions of Articles 193–204 of Tax Code.

If the provisions of an international agreement regarding the

determination of taxable income of a nonresident legal entity from doing

business in the Republic of Kazakhstan through a permanent establishment

allow for the deduction of management and general administrative expenses

incurred for the purpose of earning said taxable income both in the

Republic of Kazakhstan and outside its borders, one of the following

methods shall be used to determine these expenses:

1) The proportional distribution of expenses method;

2) The direct deduction of expenses method.

A nonresident legal entity may choose for itself one of these methods

for the deduction of management and general administrative expenses. The

method chosen for the deduction of management and general administrative

expenses charged to a permanent establishment (including the procedure for

calculation of the index factor used in the proportional distribution of

expenses method) shall be applied annually and may be changed only with the

approval of a tax authority.

2.7.1 Proportional distribution of expenses method

When the proportional distribution of expenses method is used, the

amount of management and general administrative expenses referred to in

Article 195 of Tax Code of RK that are charged to a permanent establishment

as a deduction shall be determined as the product of these expenses and the

index factor. The index factor shall be calculated by one of the following

methods:

1) the ratio of gross annual income earned by a nonresident legal entity

from doing business in the Republic of Kazakhstan through a permanent

establishment during the tax period to the total gross annual income of the

nonresident legal entity as a whole for the same tax period;

2) the average of the following three indicators:

the ratio of gross annual income earned by a nonresident legal entity from

doing business in the Republic of Kazakhstan through a permanent

establishment during the tax period to the total gross annual income of the

nonresident legal entity as a whole for the same tax period;

the ratio of the value of fixed assets recorded in the financial statement

of the permanent establishment in the Republic of Kazakhstan as of the end

of the tax period, to the total value of the fixed assets of the

nonresident legal entity as a whole in the same tax period;

the ratio of the wages fund for personnel employed at the permanent

establishment in the Republic of Kazakhstan as of the end of the tax period

to the wages fund for personnel of the nonresident legal entity as a whole

in the same tax period.

A nonresident legal entity can determine independently which of the

aforementioned methods for calculation of the index factor will be used.

The amount of management and general administrative expenses arrived

at through these calculations shall be taken as a deduction charged to the

permanent establishment only if supporting documents are available.

Supporting documents shall include:

1) a copy of the financial statements of the nonresident legal entity in

which the following is indicated, depending on the index factor chosen by

the nonresident legal entity:

the total amount of gross annual income as a whole;

the total amount of the wages fund as a whole;

the original and residual value of fixed assets as a whole;

the total amount of expenses, with an item-by-item breakdown, including a

breakdown of the total amount of management and general administrative

expenses;

2) a copy of an audit opinion based on an audit of the nonresident legal

entity’s financial statements (if an audit of the legal entity’s financial

statements has been performed).

A statement of the aforementioned expenses that are taken, as a deduction

charged to a permanent establishment in the Republic of Kazakhstan shall be

attached to the corporate income tax return filed with the appropriate tax

authority of the Republic of Kazakhstan. In the event that the amount of

management and general administrative expenses subject to proportional

distribution is not indicated in the financial statements, these expenses

shall not be taken as deductions charged to a permanent establishment.

2.7.2 Direct deduction of expenses method

When the direct deduction method is used for a nonresident’s

management and general administrative expenses, these expenses shall be

taken as a deduction charged to a permanent establishment in the Republic

of Kazakhstan if they can be determined directly and were incurred directly

for the purposes of earning income from doing business in the Republic of

Kazakhstan through a permanent establishment. Said expenses shall be taken

as deductions charged to a permanent established only if supporting

documents are available. Supporting documents shall include:

1) accounting records confirming expenses incurred by the nonresident legal

entity on the territory of the Republic of Kazakhstan for the purposes of

earning income from doing business through the permanent establishment;

2) copies of accounting records confirming expenses incurred by the

nonresident legal entity outside the Republic of Kazakhstan for the

purposes of earning income from doing business in the Republic of

Kazakhstan through the permanent establishment.

2.7.3 Procedure for payment of the income tax on income earned by

nonresidents from activity in the Republic of Kazakhstan not leading to

the creation of a permanent establishment

The procedure for payment of the income tax provided for under this

statement shall apply to the income of a nonresident from activity in the

Republic of Kazakhstan that does not lead to the creation of a permanent

establishment in accordance with the provisions of an international

agreement, with the exception of income referred to in Articles 199–202 of

Tax Code Of RK, except as otherwise provided under said statements. A

nonresident mentioned above of this article that earns income from sources

in the Republic of Kazakhstan shall have the right to apply the procedure

for payment of the income tax provided for under this article. In the event

that the provisions of this article are not applied, a tax agent shall be

required to withhold the income tax at the source of payment and transfer

it to the state budget in accordance with the generally established

procedure. A nonresident earning income, a tax agent, and a resident bank

(referred to hereinafter as a bank) identified by a tax agent, shall

conclude a conditional bank deposit agreement following the form agreed

upon by the parties to the agreement, taking into account the provisions of

this article. Within ten business days of the signing of a conditional bank

deposit agreement, a tax agent shall be required to register the agreement

with a tax authority, and a copy of the agreement, as well as a copy of the

payment document confirming the transfer of income tax to a conditional

bank deposit, shall be submitted to the tax authority. The provisions of

this article shall extend only to conditional bank deposit agreements that

have been registered with a tax authority. Conditional bank deposit

agreements, the terms of which do not contradict the provisions of this

article, shall be subject to registration. At the time income is paid to a

nonresident, a tax agent shall be required to withhold income tax at the

source of payment at the rate specified under Article 180 of Tax Code, and

to transfer the tax that has been withheld to the conditional bank deposit

at a bank, in favor of the nonresident. In the case of compliance with the

terms of an international agreement, in order to obtain a refund of income

tax that has previously been withheld, a nonresident shall file a request

with the tax authority following the procedure and form established by the

authorized government agency.. The tax authority shall review said request

and the required documents, it shall make a decision regarding the request,

and it shall notify the nonresident and the bank of the decision. Upon

receipt of a request for a refund of income tax that has been withheld,

which has been certified by a tax authority, a bank shall grant the

nonresident who submitted the request the right to dispose of funds placed

in the conditional bank deposit, up to the amount indicated in the request,

plus bank interest that has accrued. In the event that a nonresident does

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