Kazakhstan: Legal view on tax calculation for solar power plants

published on 19th February 2021

 

Based on legal provisions and specifications, according to Article 519 of the Tax Code for the Republic of Kazakhstan dated December 25, 2017 Nr. 120-VI „On taxes and other compulsory charges for the budget” („the Tax Code”) buildings, construction facilities, objects included therein according to classification for legal entities are subject to property tax. These classifications are determined before the authorized state authority of technical regulations (according to GK RK 12-2009). Here machines and equipment are not recognized as taxable property of the enterprise. The tax rate of 1.5 percent on business assets for legal entities is added to the balance sheet value of the building or construction equipment. 
 
At the same time, the solar power plants are not included in regulations according to the current classification of the investment fund. Below is a legal evaluation of all components of the solar power plant, including solar modules. 

 
Definitions

The legal regulation under P. 1 Article 519 of the Tax Code assumes that the objects designated as buildings and construction facilities under current classification of the Investment Fund (GK RK 12-2019) (hereinafter referred to as KdA) are taxed. In P. 3 of the KdA, the following terms „building”, „construction facility”, „machinery and equipment” are given in the legal sense. In addition, terms „building”, „construction equipment” reflected here also occur in other regulations of the legislation of the RK. 
 

Definitions of „building” and „construction facility” according to KdA

A building is an object built for permanent purposes and consists of the supporting and enclosing or combined (supporting and enclosing) structures, which is distinguished according to the functional purpose, such as a permanent residence, accommodation of people or animals orstorage of goods, depending on the functionality of the object.

Whereas the construction facility is an engineering and construction object (exception-building), the purpose of which is to create the conditions necessary for the implementation of the production process by performing certain technical functions that are not related to the change of the object of work, or for performing the non-productive activity. In other words, the legislator specified that the construction facility must serve purposes other than production (including the generation of electricity from solar energy).

Thus, when defining the classification of an object as a construction facility, it is important to consider the relevant function of such an object. This in relation to a solar power station means that the functions of each object, each component of the solar station must be defined separately. 

Definitions of „machinery and equipment”

According to the KdA regulations, machinery and equipment are tools that produce energy, material and information. In other words, machinery and other equipment shall directly serve the manufacturing process. 
 
As an example, let's take metal production. In accordance with the KdA, machinery for metal processing and similar objects located in the workshop building are subject to the regulation of „machinery and equipment”, whereas the workshop building is to be considered under the regulation of „factory building”. This example can serve as a legal analogy for the classification of solar installations with regard to accompanying installations. 

Provisions according to general regulations on civil rights

According to P. Article 117 of the Civil Code of the Republic of Kazakhstan, buildings and constructions are considered as real property, which are directly connected with the ground, or objects, the re-positioning of which is impossible without significant damage to their purpose. 

• In this regard, classification of the object as real property has been made subsequent evaluation rules: How firmly is the real property connected to the surface of the earth?
• What measures must be hypothetically used to move it from one place to another, with regard to not causing serious damage to the above-mentioned property? 
   

Provisions according to the regulations of the Construction Code of the Republic of Kazakhstan 

According to P. 7 Article 1 of the Construction Code dated July 16, 2001 No. 242-II „On Architectural, Urban Construction and Building Activities in the Republic of Kazakhstan”, a construction facility is an artificially created extensive, planar or linear object, which has spatial-natural or artificial boundaries and is used for carrying out the course of work, parking and storage of material property, temporary residence (transportation) of people or goods, including for the installation or setting up of facilities or communications. 
 
This definition also applies to the above example of a metal production plant, where the workshop building, which is classified as an industrial building, serves to carry out the work process and to install machines and other equipment. Machines can also be considered as equipment. 
 

Provision according to the Order of the Ministry of Energy of the Republic of Kazakhstan dated March 20, 2015 N 230 „On the establishment of rules for the establishment of electrical construction facilities”

According to sub-item 1, p. 2 of the present Order, an electrical construction facility is a complex of machines, devices, lines and additional equipment (together with the construction facilities and premises where they are installed) - intended for production, conversion, transformation and transmission of electricity and its transformation into other electrical energy. It is important to note that solar equipment is intended for the production of energy from solar radiation, which allows them to be considered as equipment. 
 

Provisions according to the Law of the Republic of Kazakhstan from July 4, 2009 N 165-IV „On promotion of use of renewable energy sources”

According to item 7-1 Article 1 of the specified law, a renewable energy source installation is considered as technological equipment and auxiliary equipment with renewable energy sources, which serves for the production of electricity and heat.

In item 8 article 1 it is regulated by law that an object for the use of renewable energy is a technological equipment serving for heat and (or) energy production from the use of renewable energy, and for this purpose bound equipment and infrastructure requested in the technological sense for the operation of the use of renewable energy. The above-mentioned tied facilities are included in the balance sheet of the owners.

Accordingly, the law distinguishes concepts of technological equipment and auxiliary equipment for the determination of facilities for the use of renewable energy.

In view of this, photovoltaic modules (solar panels) and similar equipment should be considered as technological equipment other than interconnected building structures with the modules and other installations required for solar panel operation. 

 

Historical argument

It should be noted that the „National Classification NK of RK 12-2014 Classification of Investment Funds” was discharged by the Board of Technical Regulation and Metrology (Ministry of Investment and Development RK dated July 29, 2016 Nr. 184). In this classification of the Investment Fund, which is no longer current, solar equipment for energy production or solar power plants have been subordinated as a building structure under the number 132.420014.

In the explanations of terms „facilities of energetic plants, electric power plants”, which are also a part of classification standards (see item 8), as an example have led hydroelectric power plants and wind power plants fed by coal-fired power plants. There are no examples of solar plants led.

In the current version of the classification GK RK 12-2009 the solar plant was not mentioned at all. The electric power plant (energy regeneration plant) now has the same classification number (132.420000). In the annex to the term „Equipment of energy facilities, electric power plants” the above explanations are given verbatim. 
 

Court decisions

In the court decision dated 10.02.2014, the Supreme Court considered the presence / absence of a strong connection with the surface of the earth in the classification of the seaworthy oil drilling platform (PMBU), evaluating the strength of attachment to the ground.

An excerpt of the decision reads, „Since the PMBU is not firmly attached to the surface of the earth, it is a non-self-propelled floating rig equipped with the equipment for drilling wells. It moves with the help of tugs, and no additional construction work is required at the destination.” Here, the Supreme Court also uses the statutory provisions in II.1 a-c) to distinguish a seagoing drilling rig as a production facility from other construction structures. 

 
Consequences

In the legal provisions, including the Law of the Republic of Kazakhstan on Renewable Energy Sources, it is stated that in the installation of energy production (extraction) small construction structures and technical equipment for energy production from renewable energy sources must be clearly differentiated.

In order to make this differentiation, the explanations in P. 8 of the KdA are used, in which hydro, thermal and wind power plants were used as examples. From our point of view, the legislator apparently assumes the following:

• The wind power plant always has a fixed connection with the surface of the earth (wind power plants up to 120 m in size always require a foundation base).
• The coal-fired thermal power plant is firmly connected with the furnace and the construction.
   

The solar power plant is a completely different facility: the individual components of the plant are fixed to the surface of the earth (the essence of a fixed connection with the surface of the earth), and even such parts can usually be separated and transported without causing serious damage to their purpose.
Furthermore, the functions of the corresponding equipment must be considered. This is determined by the legal provision in P. 3.7 of the KdA. If the equipment is to be used directly in the production process (i.e., energy production), the building construction is not in question here. The building construction can be put into use for the other technical purposes, which are not production related.
 
In turn, there are devices such as inverters, which converts DC voltage obtained from solar modules into AC voltage. Consequently, the inverters find their application directly in the production process: from the solar radiation to the supply of the high voltage network. As a similar example, most parts of an electrical installation can be cited.

Based on the above, it can be summed up that according to the current classification, the solar installations currently do not belong to construction equipment: Solar power plants must be classified as furnishings and equipment. Accordingly, solar power plants are not immovable property and therefore they are not subject to property tax under Article 519 of the Basic Law of the Republic of Kazakhstan dated December 25, 2017 Nr. 120-VI „On taxes and other compulsory budgetary charges”.

 

 

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