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Below we can discuss the main developments in the tax assessment of Kazakhstan for non-residents.

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Part 26 of the Tax Code of the Republic of Kazakstan (further referred as RK) allows full or partial discharge from the double tax assessment of the various types of profits of non-residents, which were obtained from the sources in RK under the condition of the existence of the agreement between RK and the country of residence of a non-resident in order to avoid double tax assessment.

This means that a non-resident of such a country has a possibility to pay taxes from Kazakhstan originated profits only in his own country, but only in case if he is able to prove the residency by providing Kazakhstan contractor apostilled certificate of residence from his country and the extract from the trade register or, alternatively, a passport copy.

Para 4 and 5 of section 219 of the Tax Code states that the documents approving the citizenship of a non-resident is an official document, which can be in a form of:

1. an original of such a document;
2. notary certified copy of such a document;
3. from 2017 it is necessary to present in hard copy of electronic document that proves residency, located in the internet source of the competent body of the foreign country (Georgia, Spain, Moldova, Czech Republic etc.).

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In accordance with para 4 section 212 of the Tax Code in a case when a non-resident provides services or completes works in the territory of RK in a specific time limits, which does not result into the permanent entity in RK, for the purpose of applying international agreement legal non-resident should present to the tax agent both documents proving residency and notary certified copies of the Certificate of Incorporation or extracts from the trade register mentioning incorporators (members) and shareholders of a legal non-resident.

The same documents are needed in order to get return of the income tax for non-resident from the budget or provisional bank deposit.

Additionally from 2017 in a case if the foreign country does not provide such documents (Certificate of Incorporation, extract from trade register) such a non-resident has to provide a document from the foreign country, which was used to become a non-resident, legality of which is proven by the appropriate official body within the foreign country.

International information exchange cooperation

In 2004 Kazakhstan ratified the Convention on Mutual Administrative Assistance in Tax Matters, which was signed by 103 countries including 19 offshore jurisdictions.

Convention provides exchange of information on the mutual basis between participating countries in order to prevent shadow economy, money laundering, including avoidance of tax payments.

Therefore, Kazakhstan continues further liberalisation of the tax regime in order to create a fruitful atmosphere for foreign investments and capital growth.

With us you will feel yourself confident in all territory of Kazakhstan. Please contact out specialists for your free consultation.

Tileu Azhikulova
MG Partners

The statutory tool which governs the area is Permits and Notifications Act, that regulates public relations connected to permits or notifications of entrepreneurship of certain activity types.

Electronic system of licensing in Kazakhstan simplifies the document submission procedure. Further the electronic license itself will be in the public access on elicense.kz. Through the search it is possible to find any license by its validity status. Everyone is able to check the other party for the right to conduct the licensing type of activity. Kazakhstan creates all conditions for the development of businesses and there is a policy for the reduction of regulatory approval system currently in place.

On 29th March 2016 licensing for the activities connected to collection, storing, recycling and realisation of crow-bar and chromatic and ferrous metals was cancelled. Such activities would have a compulsory notification nature, which means that before starting this activity the interested party would need to send the notification about the start of activities to the governmental body governed by Permits and Notifications Act. When finishing the named activities the party would also need to notify the governmental body.

Licensing in the industrial sector is currently central in Kazakhstan. According to the Permits and Notifications Act activities connected to purchase of energy power for the purposes of energy supply and also for operation of mining and chemical manufactures are possible for licensing, particularly:

1. Extraction of solid commercial minerals
2. Exploitation and development of solid commercial materials by open surface and underground methods
3. Process operations within fields boundaries
4. Operation of explosive works for solid commercial materials
5. Liquidation works for closure of mines and pits
6. Underground well workovers, disassembly of equipment and facilities, installations of the lifting machinery
7. Examination after the well workovers
8. Cleaning, carbonisation, testing and exploration of wells
9. Operation of chemical production.

In Kazakhstan very common are license in the area of architecture of urban development and building activities:

• License for the building and installation works
• License for project activities (I,II, III categories)
• License for the development activities (does not have categories)

In Kazakhstan pharmaceutical activity in the sphere of production of drugs is very active. There are more and more drug stores and private clinics opening. In order to work in this are entrepreneurs must get the license for the medical and pharmaceutical activities.

Public places, shops and stores, that work with retail sale of alcohol must get the license for the storage and retail sale of alcohol production, and under the wholesale distribution fill in for the license for the storage and wholesale distribution of alcohol production.

There are also other areas that require licensing , such as production and manufacture of alcohol production, ethyl alcohol and tobacco.

We have been helping to acquire licenses and approval documents “under lock” for more than 9 years. Contact us for your free consultation.

Senior Lawyer MG Partners
Darja Markina

Due to its geographical position and rich mineral reserves Kazakhstan is one of the most attractive countries for investments. Besides gifts of nature and the ancestral heritage the government of our country uses all opportunities for the creation of the most favourable climate for successful business management.

With regards to the major work done Kazakhstan appeared in the rating “Doing Business 2017” of World Bank, where it took 35th position, upgrading by 16 points compared to “Doing Business 2016”, where our republic was placed on 51st position.

Development continues, as World Bank marked top 10 countries with the high share of reforms in the area of improvement of business climate, where Kazakhstan took 2nd position in 7 categories. Additionally, Kazakhstan was awarded as a best reformer for the fourth time in the last 12 years.

Improvements deal with all areas which the potential investor could face while conducting entrepreneurial activity in Kazakhstan.

Therefore, there have been various unprecedented measures taken in order to improve the business environment and reduce administerial pressure on businesses through reforms of the current legislation, perfection of the regulatory approval system, simplification of business establishment procedures and optimisation of governmental control and supervision activities.

There have been simplified procedures of business registration, cancelled fee payment for registration of small and medium-sized entities, reduced term of registration and minimised the list of the required documents, as a part of the framework of improvement of the investment climate. Duties of all supervisory bodies are clearly stated and reduced to the maximum in relation to subjects of entrepreneurship, fully excluding unlawful checks and intrusion in the internal activities of entities. Businesses will also benefit from the simplified procedure to acquire licenses (permits) and many more other positive developments.

Nevermind that only in 2016 the volume of gross inflow of straight foreign investments in Kazakhstan amounted to 20,6 billion US dollars, our country has a lot of less competitive market spheres, which require new participants.

Consequently, as for the current stage of the development of economy and the country as a whole every company has an opportunity to take over its niche in the market of Kazakhstan and central-Asian region.

We have already helped more than 50 non-resident companies to enter the market of Kazakstan. Contact us for you free consultation.

Daniyar Iklasov,
Senior lawyer MG Partners

Lex mercatoria is the part of commercial law which consists of unwritten customs and practice of merchants, so far as satisfying externally set criteria for validation . It happens, when states or any representatives of different legal systems agree to have treaty, or any contracts based on the rules of national law, proceed under the practice of international trade . Therefore, in this case we can also call the process of lex mercatoria as a part of the international trade law . Nevertheless, there is a difference between lex mercatoria and transnational commercial law. Transnational commercial law contains rules and principles in legal systems, whereas lex mercatoria consists of rules of customary commercial law, customary rules of evidence and procedure and general principles of commercial law, including international public policy . With regard to opinion of professor Lando, there is a list of elements of lex mercatoria, which consists of public international law, uniform laws, the general principles of law, the rules of international organisations, uncodified customs and usages, codifications of customs and usages by international, organisations, standard-form contracts and reported arbitral awards . However, professor Goode had observed that only general principles of law and uncodified customs and usages constitute lex mercatoria, but together all of these elements form the part of the transnational commercial law, considering that,

«no reference is made to the decisions of the Court of Justice of the European Communities which has itself developed general principles, or of national courts when interpreting or applying international instruments or usage, though these obviously carry a much more general authority than arbitral awards and should be regarded as constituent elements of transnational commercial law».

There is no agreement what the lex mercatoria comprises in present. For someone, it is another tag for transnational commercial law, which surrounded by formal and informal ways of harmonisation. For others it is the product of international law-making through international trade usage as evidenced by rules of trade, associations, standard-term contracts and general principles and rules and restatements formulated by international agencies .

«What has been said of the lex mercatoria may well be applied to “transnational law” in general, i.e. to all kinds of principles and rules of non-national or a-national character used in international business practice as an alternative to domestic law».

We can see it in preamble of Principles of International Commercial Contracts of the UNIDROIT «they may be applied when the parties have agreed that their contract be governed by general principles of law, the lex mercatoria, or the like», which means that the Principles based on common origin and responsive to practices and usages, but also very adaptable to commercial needs and the world of international trade .

References

1. Baron, G. (1999). «Do the UNIDROIT Principles of International Commercial Contracts Form a New Lex Mercatoria» Arbitration International. pp.115-130.
2. Bertman, H. J. Kaufman, C. (1978). «Law of International Commercial Transactions (Lex Mercatoria)». Harvard International Law Journal , pp. 221-277.
3. Bonell, M. (2000). «The UNIDROIT Principles and Transnational Law». Uniform Law Review.
4. Goode, R. (1997). «Usage and its Reception in Transnational Commercial Law». International and Comparative Law Quarterly, pp. 1-36.
5. Goode, R. Kronke, H. McKendrick, E. (2007). Transnational Commercial Law. Text, Cases, and Materials. Oxford University Press
6. Lando, O. (1985). «The Lex Mercatoria in International Commercial Arbitration». International and Comparative Law Quarterly, pp. 747-768.

Other

1. UNIDROIT Principles on International Commercial Contracts.

Senior Lawyer MG Partners
Temir Ibrayev

Astana International Financial Center (hereinafter – AIFC) represents special legal regime in financial field, advantage in the form of tax preferences for certain types of financial services, created on the model of Dubai International Financial Center. In the AIFC frames, conditions for all types of business were created with its independent judicial system (AIFC arbitrage), and anyone is able to find the niche, regardless whether it is a small or large business. AIFC may become one of the largest financial centers in Asia. One of core elements of AIFC is Islamic financing – which is one of the world trends. In its framework, it is possible to invite investments into small, medium and large business. One more mechanism of financing – green financing – typified by floatation of “green” bonds on the AIFC exchange, which makes it available to additionally finance entities that execute practice in the field of alternative energy.

About special legal regime
The legislation of AIFC is based on Constitution of the Republic of Kazakhstan and consist of Constitutional Law and AIFC Acts. The key point and a substantive aspect of AIFC is a new jurisdiction, based on principles of English law, which regulates relations of AIFC participants and interested parties, purposed to improvement of financial market.

Advantageous tax regime
Zero tax rate for corporate and individual income, land tax and property tax, also for securities sales income, dividends and rewards for delivered securities during 50 years (until the end of 2065). Besides, Tax Code prescribes a list of financial services’ totals, that are freed of VAT.

Simplified visa regime
Citizens of 45 countries are exempt from visa requirements for 30 days of presence on the territory of the Republic of Kazakhstan (OECD countries, Malaysia, Monaco, UAE and Singapore). With the purpose of assuring advantageous conditions for settling business in frames of AIFC jurisdiction an Expat Center was created. It practices assistance in receiving a wide range of state and other services by the principle of “One contact”, including: gaining visas, registration of foreign labor force, simplified order of gaining permits for stretching the foreign labor force.

Yuliya Turtayeva
Tax Consultant of MG Partners Law Firm