130/1996 Coll.



FIND



The Constitutional Court of the Czech Republic



On behalf of the Czech Republic



The Constitutional Court of the Czech Republic decided on 24. April 1996 in the plenary in the things

design j. m. on the repeal of the provisions of section 31, paragraph. 9 of the Act of the Czech

the National Council No. 337/1992 Coll., on administration of taxes and fees, in the text of the

amended, expressed by the words "or whose licence has been

the tax administrator in the course of the fiscal management of the invited ",



as follows:



The proposal is rejected.



Justification



(I).



19 July. October 1995 was the Constitutional Court delivered a constitutional complaint against j. M.

The complainant seeks the annulment of the judgment of the regional court in Brno from 7 September.

August 1995 No. 29 Ca 393/94-24, dismissing its action for

annulment of the decision of the Finance Directorate in Brno no j. ANALYSIS 3171/230/94

of 18 July 2003. October 1994. This decision, in conjunction with the decision of

The financial Office in Znojmo he was charged tax according to AIDS, and in the

the meaning of section 31, paragraph. 5 the Czech National Council Act No. 337/1992 Coll., on administration of

taxes and fees, in the wording of later regulations. Along with this complaint

He filed the proposal to repeal the provisions of section 31, paragraph. 9 of the Act, and

it in part expressed by the words "or whose licence has been in the tax administrator

during the fiscal management of the invited ".



IV. appeal to the Constitutional Court came to the conclusion that the contested provision was

applied in administrative decisions in the Court's decision, which is

the subject of the constitutional complaint, and that they are therefore satisfied the conditions of section

74 of law No. 182/1993 Coll., on the Constitutional Court. Therefore, the proceedings under section 78

paragraph. 1 of this Act, the resolution of the SP. zn. IV. TC 252/95 of 4 December.

December 1995, interrupted and advanced the proposal for decision to the plenary.



II.



In the opinion of the complainant is entitled to provide tax Manager tax

the obligation for the use of the equipment provided to comply with the tax

body in proving facts by one of its

legal duties. From the wording of the contested section 31, paragraph. 9 of the Act of the Czech

the National Council No. 337/1992 Coll., as amended, that

the tax entity shows all the facts, which is obliged to indicate in

granting, reporting and billing, or whose evidence was the tax administrator

in the course of the fiscal management required. In the opinion of the plaintiff gives the

the provisions of section 31, paragraph. 9 of the Act, in section "or to the

the card was a tax administrator in the course of the fiscal management of the invited "the basis for the

license of State officials, who can challenge the tax entity to

anything, eg. to prove the facts, which corresponds to the

by law, anyone else (in his case, for example, it was required to demonstrate

the fact that the issuer of the document is liable for VAT). Then, if the tax

subject fails to meet the challenge, the tax administrator used the procedure under section 31, paragraph. 5

the cited law, and without regard to the actual and duly documented the State of things

decides according to the "AIDS", which may not in any way

specify. The State authority or public official is so given

the option to save the citizens of any of the obligations that otherwise from

the Act or other legislation do not. That is, in the opinion

the petitioner violated basic human right protected in article. 11. 5

The Charter of fundamental rights and freedoms (the "Charter"), as to the

the extension of the tax obligation above and beyond the law. Furthermore, this provision

contradicts the article. 4 (4). 1 of the Charter, according to which the obligation can be

saved only on the basis of the law and its limits and only while maintaining

fundamental rights and freedoms. If the Charter uses the wording "on the basis of the

the law "does not preclude the possibility of a separate procedure Manager

the tax, however, such a procedure must respect the obligations that may be

saved only within the limits of the law. At the hearing on 24. April 1996 legal

the appellant's representative adds that the contested act is also in

contrary to the article. 2 (2). 4 of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution"),

According to which no one shall be forced to do what the law does not impose.



III.



The draft is June 2. in February 1996, the Chamber of deputies of the Parliament expressed

Of the Czech Republic. In the representation of the States that the burden of proof regarding the

the facts contained in the tax return shall be borne by the tax body,

According to § 31 of the law of the Czech National Council No. 337/1992 Coll., as amended by

amended. This means that if the tax administrator doubts

on the alleged facts, that the tax entity cannot be uprooted, the administrator has the

the tax law to establish the tax base and tax according to the equipment, which has to

or that he's getting, and even without synergies with tax

by the body. This by way of determination of tax was common in both the

the pre-war legislation (e.g. Section 327 of the Act No. 76/1927 Coll. and n.

direct taxes), so there are also in the legislation of other countries, for example. in

Germany. If the applicant considers that the part of the provisions of section 31

paragraph. 9 tax arbitrage is based, then it is to be noted that such

discretion, in addition to the provisions of section 31, paragraph. 9, and section 2 of the Act

The Czech National Council No. 337/1992 Coll., which in paragraph 2 provides that

"The tax administrators in tax proceedings and in close collaboration with the tax

bodies and requiring the discharge of their duties in tax proceedings

elect only such means that the tax burden and the bodies of at least

allow you to achieve the goal of management yet, i.e.. the correct determination and

collection of taxes. " It follows from this that the challenge to the certificate may be issued only in the

tax proceedings and exclusively in respect of such information, which are

necessary to the fulfillment of the objectives of the tax proceedings.



In conclusion, the statement notes that the law was approved on 5 December. may

1992 the necessary majority of members of the legislature, was signed by the

respective constitutional factors and properly declared. The legislature

He acted in the belief that the provisions adopted in accordance with the Constitution and is

on the Constitutional Court to assess the constitutionality of the provisions of section 31, paragraph. 9

the Czech National Council Act No. 337/1992 Coll., as amended

the regulations, to the extent of the complainant's proposal. At the same time were accompanied by

copies of prints no Council 691 and 755.



IV.



Under section 68, paragraph. 2 Act No. 182/1993 Coll. is the task of the Constitutional Court

to assess the content of the legislation in terms of its conformity with the constitutional

laws, international treaties under article. 10 of the Constitution and the laws and

to find out whether he was accepted and published in the limits of the Constitution laid down the competence and

constitutionally prescribed way. Due to the fact that the Court had no reason

doubt, that the law in question was adopted within the limits of the Constitution

established competence and constitutionally prescribed way, focused

mainly on the assessment of the content of the contested provisions and its compliance with the

constitutionally guaranteed rights and freedoms, and in particular those whose

violation of the plaintiff was argued.



The proposal is directed against the provisions of the law on administration of taxes and fees. The administration of the

tax means the right to exercise the necessary measures to properly and fully

the findings of the tax liability, as well as to its fulfilment. The law on the administration of

taxes and fees is a special procesněprávním law, which regulates the

the procedure of tax authorities in the collection of taxes and fees and the rights and

duties of tax entities. Tax management is a special kind of

the administrative procedure, which is carried out by specialised authorities

Administration. It is essentially a bilateral procedure, written and non-public.

Is based on two fundamental principles, and on the principle of legality and to

the principle of synergy. In particular, the latter touches the present policy

things. This principle is expressed in particular in section 2 (2). 2 the law of the Czech

the National Council No. 337/1992 Coll., which provides that the tax administration shall act

in management in close cooperation with the tax bodies and requiring the fulfilment of

their duties are to choose only such means that the tax

the bodies of at least burden and allow you to still achieve the goal of management, that is.

the correct determination and collection of taxes.



Tax management is generally for us, as well as in other States,

built on the principle that each tax entity has both the obligation itself

tax (i.e. a sort of burden of claims), but also the obligation to its

the allegation prove--burden of proof. As regards the present

by law, this principle is expressed in particular in section 31, paragraph. 9. As the evidence

the means by which you can substantiate the grounds for determining the tax

obligations, can serve virtually any means, however, cannot be

use of such, which have been obtained in breach of generally binding legal

provisions. In the first stage of the procedure, therefore, the legislature transferred the burden of proof

the tax entity. However, you cannot deal with the provisions cited in isolation.

What can the tax administrator of the fiscal challenge, it follows in particular from the

the provisions of § 43 of this Act, which regulates the so-called. start an audit, control and

This section of the Act, which deals with charging the tax. The provisions of section 31

paragraph. 9 therefore does not regulate what the tax administrator may require, but who

bears the burden of proof. This provision is also included in the General

the provisions of the law (part one). Thus, if the tax administrator pursuant to § 43

the cited law designated in the manner expressed doubt about the claim

the tax entity, is a tax body shall hardened facts

to prove it, and that the time limit set by the tax. Unless it is, therefore,

lift the burden of proof, i.e.. cannot be uprooted if the tax administrator,

is the tax administrator shall be entitled to establish the tax base and tax AIDS,

which has, or which shall affix, and even without synergies with tax

the body (hence the alternate way in accordance with section 31, paragraph 5, and section 44 of the Act).

This is a breakthrough in the basic principles of fiscal management, that is

expressed in section 2 (2). 9 of the Act, i.e., to the right of the tax body

cooperate with the tax administrator for the correct determination of its amount. Only

If it could not be determined nor tax according to the tax administrator may, AIDS in the

agreement with the tax body of the tax base and tax.



In the opinion of the Constitutional Court, the complainant's proposal is supported, in particular, on the

the misunderstanding of the above tax policy management. The contested provisions

the law would have appeared in a totally different light, if for charging the tax and

the taking of evidence, why have been charged in this or that amount, was the duty of

the tax authority from the very beginning. This, however, is not, and therefore

the provisions, which is the subject of the procedure, cannot be construed otherwise than that


establishes a procedure for the case when the evidence submitted to the tax return (about

where the tax body may believe that they are sufficient) are

of such a nature that arouses doubts the tax administrator. The contested

the provisions of section 31, paragraph. 9 or its part can the claimant

seem like a provision allowing discretionary power in particular because it removes them

from other contexts and linkages, and especially of the whole concept

the burden of the proceedings in tax matters. State official cannot therefore tax

the body may invite to anything, as claimed by the appellant, but only to the

proof of what he says. It was only when the tax entity its own

the argument does not prove, the tax administrator shall proceed separately.



No constitutional argument the appellant relies on the provisions of the article. 11

paragraph. 5 of the Charter, in conjunction with article. 4 (4). 1 of the Charter. It is also argued that

violation of article. 2 (2). 4 of the Constitution. The provisions of the article. 11. 5 of the Charter, however,

in the opinion of the Constitutional Court on the case doesn't work, as it is not

doubt that the controversial value added tax is regulated by the law.

Therefore, the dispute can only be whether its method of assessment or collection is the

modified the way constitutional. It's that basic provision of a procedural nature has

the force of law (the Czech National Council Act No. 337/1992 Coll., as amended by

amended) is indicative of the fact that the cited article of the Charter, respectively.

paragraph 5 was not breached. Likewise, the article could not be violated. 2

paragraph. 4 of the Constitution, since what is a tax body shall demonstrate and

in what way, it also lays down the law. In the account would come

only that the contested provisions did not match the article. 4 (4). 1 of the Charter,

It allows administrators to store tax tax entities obligations

outside the limits of the law, or which interfere with fundamental rights and

freedoms. Even in this direction, however, the Constitutional Court formed the view that

This provision of the Charter, where appropriate, the other the Constitution protected the right, respectively.

the right arising from an international agreement within the meaning of article. 10 Constitution

the contested provision of the Czech National Council Act No. 337/1992 Coll., on the

as amended, infringed. For these reasons, the Constitutional Court

rejected.



The President of the Constitutional Court of the Czech Republic:



in the z.. Haboob in r.



Vice-Chairman of the