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In The Case Of A Proposal To Repeal Section 250 Of The Tax Code

Original Language Title: ve věci návrhu na zrušení § 250 daňového řádu

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187/2015 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court decided under the SP. zn. PL. ÚS 24/14 on 30. June 2015 in

the plenary consisting of the President of the Court, Pavel Rychetský and judges Louis

Daněk, Jaroslav Fenyka, Jan Filip, Vlasta Formánkové, Vladimir

The Crust, Too, Jana Thomas Musil, Vladimir Sládečka, Radovan

Suchánka, Catherine Šimáčkové, Vojtěch Šimíčka, Milady Tomková, David

Uhlir, and George Zemánka of the draft municipal court in Prague on the repeal of section

250 law No 280/2009 Coll., tax regulations, as amended,

with the participation of the Chamber of deputies of the Czech Parliament and the Senate

The Parliament of the Czech Republic as the parties to the proceedings and the Government of the Czech

the Republic as a secondary party to the proceedings,



as follows:



The proposal to repeal the provisions of section 250 of the Act No 280/2009 Coll., tax regulations,

as amended, is rejected.



Justification:



(I).



The definition of things and a recap of the proposal



1.24 November. November 2014 was the Constitutional Court according to article. paragraph 95. 2

The Constitution of the Czech Republic (hereinafter referred to as "the Constitution") and the provisions of § 64 paragraph. 3

Act No. 182/1993 Coll., on the Constitutional Court, as amended

(hereinafter referred to as the "law on the Constitutional Court"), served in the municipal court

Prague (hereinafter referred to as "the applicant") for the annulment of the provisions of section 250 of the Act No.

280/2009 Coll., tax regulations, as amended by later regulations (hereinafter referred to as

"tax regulations").



2. in the case of the petitioner shall be kept under the SP. zn. 11Af 76/77 11Af/2011 2011

11Af 78/2011 three actions the plaintiff-company Internet Mall, and..

(hereinafter referred to as "the applicant"), against the defendant to the Finance Directorate

the city of Prague, which seeks the annulment of the decision of the former

General Directorate for the city of Prague from 21 October. October 2011 No.

j.: 12887/11-1500-106054, ref.: 12888/11-1500-106054 and REF.:

12889/11-1500-106054, which was rejected by the appeal of the plaintiff against the

paying assessments, issued by the Tax Office for Prague 7. Referred to

by paying acreage was the claimant pursuant to the provisions of § 250, paragraph. 5 tax

order fined for late submission of the tax return to the tax

value added for the tax period February 2011 in the amount of CZK 51 092

tax period March 2011 in the amount of Czk 217 812 and tax period

April 2011 in the amount of Czk 16 998.



3. In its resolution of 24 September 2003. July 2014 no j. 11Af 76/2011-38 projector

connect all three actions of the plaintiff to the common discussion and decision

under the 76 brand 11Af/2011. The applicant argued that, in the present case, the

were not properly assessed the circumstances of the fulfillment of the statutory prerequisites for

the imposition of fines and further argued excessive hardness when saving the above

the fine. Although the tax regulations in the provisions of section 250 expressly assumed

ex lege automatically, the penalty cannot in the opinion of the Prosecutor ignored the constitutional

the requirement of proportionality imposed sanctions, therefore, should be used rather

principles of administrative law and reasonable administrative punishment. In this

context, the applicant pointed out the existing case law of the Supreme

the Administrative Court and the Constitutional Court regarding the proportionality when saving

sanctions in the framework of the basic principles of the tax administration and the applicant of the said

that the imposition of sanctions is incorrect, since it is contrary to article. 11

paragraph. 1 and 5, of the Charter of fundamental rights and freedoms (the "Charter").



4. The plaintiff the plaintiff namítaný contradiction to sue the contested decisions

with the principle of proportionality in the imposition of sanctions has found reason to

regard to the finding of the Constitutional Court of 10 December. March 2004, SP. zn. Pl. ÚS

12/03 (300/2004 Coll.), in which the Constitutional Court dealt with the question of the principle of

proportionality in the imposition of fines under the provisions of section 106 of the Act No.

50/1976 Coll., on territorial planning and the building code (the building Act),

the text of Act No. 83/1998 Coll., Constitutional Court in that the award came to the

the conclusion that the minimum amount of the fine the entrenchment to act essentially tracks

a legitimate target, since far more pronounced way than it would

only in the determination of the top rates, allows you to distinguish the severity of or

those hazards which types of infringement. Side-effect

This step is that it limits the scope for administrative discretion of the competent

the State authorities, which has its positive effects for example. in fact, that the

a certain extent unifies of sentencing, or limited space

for arbitrary or corruption that are affected by the negotiations of the administrative authorities. It may be so

appear as a means of protection against any discrimination on the

the other side, however, the greater or lesser degree, the severity of the paušalizuje

infringement, which leads to the limitation of the administrative authority

take into account the particular circumstances of the case, the person of the delinquent and to his

conditions.



5. the applicant considers that the conclusions of the Constitutional Court regarding the application

the principle of proportionality in the imposition of sanctions referred to in the award SP. zn. PL.

TC 12/03 can be applied to the provisions of section 250 of the tax code, since this

provision precludes consideration of the severity of the Administrative Office and the

consequences of the infringement, which lies in the fact that the tax

the body has filed late tax returns. Strictly fixed rate builds

in the opinion of the appellant's administrative office to the role, when only calculates the amount of the

the sanctions, without consideration of the circumstances of a particular case might.



6. the applicant also emphasized that, in his opinion in the contested

the provisions as to the penalty for late payment of the Tax Act of the body and there is no

the reason for it, to the amount of the penalties from tax set out above unfolded.

While in the cases of the late payments can be accepted, that the amount of

penalty or interest from late payment depends on (though it's not about

penalty), in the case where the tax entity is penalized for late filing

the tax return, the determination of the amount of the penalties according to the amount of the tax to the tax

the award is applicable, it lacks a rational reasons. This is especially true for

the situation, when the administrative authority is impossible to reflect the specific

the circumstances of a particular case.



7. The current adjustment in accordance with the claim of the petitioner on the one hand means intervention in

basic rights under article. 11 of the Charter, and the method of calculation allows you to

intervention in the financial circumstances of the individual with great intensity, in cases

When it comes to the tax entity, which, because of its economic activity has

a high tax liability, which is completely mechanically calculated penalties

for the late submission of the tax return. The first is the existing

violated and the constitutional right of equality bodies in their rights pursuant to article. 1

Of the Charter. The same violation of the statutory obligations-IE. the late

filing of tax return-will have resulted in a different recourse, when

the tax entity, which has a lower tax liability, will be penalized

a lower fine than a body with higher tax obligations without it

any rational reason for the diversity of the penalties, which would be the same

violation of law justified. The fact that the lowest is fixed and

the maximum penalties, in the opinion of the appellant referred to the intervention by the equality

rights not removed.



8. the applicant is of the opinion that based on the above cited award

The Constitutional Court, SP. zn. PL. ÚS 12/03 in the procedural situation, in which

not for sure how reasonable is built, the statement of claim, the applicant

regarding the violation of the principle of proportionality, according to which the tax administrator should

take into account in the application of their powers, the extraordinary situation of a particular

the tax body and its legitimate interests, so that the procedure was not

to him excessively hard. The disputed provisions of section 250 of the tax code leads

to reduce the possibility of the administrative authority to take into account the particular circumstances of

the case, the person of the delinquent and his circumstances. Therefore, the appellant proceeded

in accordance with the provisions of section 48, paragraph. 1 (a). and) with line management, resolution of

on 7 December 2004. October 2014 no j. 11Af 76/2011-54, and in order to

the submission of the proposal to the Constitutional Court under article. paragraph 95. 2 of the Constitution.



II.



Course of the proceedings before the Constitutional Court



9. The Constitutional Court pursuant to the provisions of § 42 paragraph. 4 and section 69 of the Act on the constitutional

the Court posted the present proposal to repeal the contested provisions

The Chamber of Deputies, the Senate, the Government and the Ombudsman.



10. The Chamber of deputies by its President Jana Hamáčka in

accordance with the established practice, in its observations of 30 July. December

2014 is limited to a description of the course of the legislative process that led to the

the adoption of the Act, whose provisions it is proposed to repeal. Chamber

the Chamber of Deputies stated that with the draft Act and its subsequent amendments

made the constitutionally prescribed procedure the consent of both chambers of Parliament,

the law was signed by the respective constitutional factors and properly declared. Is

Affairs of the Constitutional Court to determine the question of the alleged unconstitutionality

the contested provisions and to decide on its cancellation.



11. the Board, in its comments of December 18. December 2014 through

its President Milan Štěcha said that the provisions of section 250 of the tax code

It was approved on 22. July 2009 as part of Act No. 280/2009

SB 250, the contested provisions of section. this Act, as a whole

the law came into force on 1 January 2005. January 2011. The plenary discussed the Senate

the Senate Bill contained in the press no 132 to its 9. the meeting of 22 November.

July, 2009. To the provisions of section 250 of the senators

emerged. The two senators have proposed in the framework of the general debate, the Bill

approved as amended by the Chamber of Deputies and the Senate transferred after the

the debate this proposal adopted, when voting no 22 in the presence of 71

Senators voted for the proposal, against 62 4 (resolution No. 240).



12. The provisions of section 250 of the tax code was amended in part the second

article. (III) in paragraphs 54 and 55 of Act No. 458/2011 Coll., amending the laws

related to the establishment of a single recovery point and other changes

tax and insurance laws (hereinafter "Law No 458/2011 Sb."). This

the law was sent to the Senate on 22. November 2011. The Plenary Chamber

discussed the draft law contained in the Senate's printing No. 240 on their 14.

the meeting of 8 June. December 2011. The above print mounted 13 senators,

some repeatedly. After detailed discussion the plenary Chamber has adopted only

the guarantee Committee amendments, and then vote no. 36 per

the presence of 66 senators, 64 votes for, 1 against, adopted a resolution to voice

No. 435, on the basis of which the proposal was returned with the approved


amendments the House of Commons.



13. Furthermore, the provisions of section 250 of the twelfth amendment in the part in the article. XXI

in point 116 legal measures the Senate no 344/2013 Coll., amending tax

laws in connection with the new codification of private law and amending

Some laws (hereinafter referred to as "the legal measures the Senate no 344/13 Sb.").

The design of this statutory measure received Senate in 9. term from the

the Government of the day 25. September 2013. The plenary of the Senate discussed the proposal of the legal

the measures contained in the Senate's printing no 184 on their 14. a meeting of 10 December 2003.

October 2013. The above print mounted 14 senators, some

repeatedly. The discussion in the general debate, in particular, about the need for lead

adoption of changes in the law relating to the new codification of the civil

code. After detailed discussion, the Senate adopted amendments

and to associate himself with the Government referred to the reasons for regarding the necessity of the legal

the measures. In voting no 22 in the presence of 62 senators, 55 votes for,

No one is against it, the Senate approved the Government's proposal of legal measures in the text of the

adopted amendments (resolution No. 352). In conclusion, your

representation of the Senate said it is on the Constitutional Court to examine the matter and

decide whether the contested provisions stands in the context of the constitutional order

Of the Czech Republic.



14. the Government informed the Constitutional Court of 29 April. December 2014, at its

negotiations on 22. December 2014 discussed material "proposal to the Government

The Czech Republic to the proceedings instituted before the Constitutional Court under the number

Mark Pl. TC 24/14 "and adopted a resolution to it no. 1089, which

approved entry into the said procedure and instructed the Minister for human

rights, equal opportunities and legislation Mgr. Jiří Dienstbierovi in

cooperation with the 1. Deputy Prime Minister and Finance Minister to draw up a

the observations of the Government on the proposal.



15.15 July. January 2015, the Government submitted to the Constitutional Court a comprehensive

representation, in which stated that the appellant does not share the opinion. The constitutional

the Court deems it appropriate to include representation by the Government of

the following:



16. Institute fines for late tax claim



[1] a fine for late tax penalties for claim filing tax

return, report or statement, or after the time limit laid down for their

failure at all. The penalty arises directly from the law (ex lege) within the

the amount of the tax, derived from the tax deduction or tax losses, which is

subject to delayed or nepodaného the tax claim. Specifically, the fine

in the amount of 0.05% of the taxes or tax deduction or 0.01

% set by the tax losses. The fine is partly the nature of time penalties,

i.e.. the amount of the fine is increasing in time depending on the length of the delay with the

making a tax claim in certain cases, however, it has a fine

a minimum and maximum limit. The maximum limit shall apply

also in the case that the tax claim is not filed at all, even after

the prescribed time limit. The tax administrator shall inform the tax body fine payment

výměrem (declaratory decision) and at the same time it will prescribe the

taxes. The fine is payable within thirty days from the date of notification of this

the payment of the assessment, against which it is possible to lodge an appeal, whose submission

but it does not have suspensory effect.



[2] their nature was replaced by fine Institute tax increase, which was

modified in the provisions of section 68 of Act No. 337/1992 Coll., on administration of taxes and

fees, as amended, under which the tax administrator could

(but didn't have to), if the tax return or report has been lodged in due time,

increase the assessed tax of up to 10%. Any other way (e.g. by setting

minimum or maximum amount) was not limited to this sanction. Whether the increase in the

taxes the tax administrator, depended on its administrative discretion, i.e.. This

the penalties were not saved automatically.



[3] the legislature in the new legislation the tax code effective from 2011

by contrast, has chosen the path of sanctions imposed ex lege, IE. solutions in the form

violations of the obligation in a predictable and identifiable in advance

in a way that excludes discretionary power on the part of the determining authority and

reduces the potential for corruption.



17. The illegality and harmfulness of an infringement claim taxes



[4] the basic characteristics of the negotiations, which is sanctioned by the way

the administrative punishment, is how its illegality, its harmfulness.

According to § 1 (1). 3 of the tax code is a tax return, report or

the Bill filed by the tax body "the basis for the correct findings and

the determination of the tax ". Correct determination of taxes is findings and, together with the

security of their remuneration, the aim of the tax administration (see section 1, paragraph 2, of the tax

the order). The explanatory memorandum to the tax regulations to States that "in this respect,

the target of the tax administration continues to make sense of the existence of taxes, which is

ensure the financing of public needs of the company, though this is not

explicitly provided for in the Act. It is, therefore, to ensure the participation of the individuals

(the tax entity) on the costs necessary for the effective functioning of the State

and the public service. It is therefore to implement the Act

or on the basis of the Act provided for the reception of the public budget. "



[5] Edit Institute fines for late tax claim is

due to the fact that the administration of taxes in General is built on the principle of

According to which the tax entity has an obligation and burden of claims concerning their

tax obligations. The obligation to claim lies in the obligation to submit

tax claims and claim it really important for tax administration.

The burden of the tax entity can claim if the tax administrator hardened

really know, IE. the tax entity not only in tax claims shall

the necessary information, but also the tax claim shall submit the tax administrators. Basic

a prerequisite for abducting the burden of claims is their compliance with the obligations of the claim.

The explanatory memorandum to § 1 (1). 3 of the tax code States: "the Tax

the subject works in the determination of the tax liability with the administrator

in particular, the tax by correctly claims the amount of the tax, which is also required to

pay. The tax then be subjected to a review of this claim, which results in

is acceptance of the alleged amount and the determination of the tax or change of a declaratory

change the amount of hardened so that the resulting tax match

tax obligations of the law ". The submission of the relevant tax claim

duly and on time is, therefore, a key condition for it to manage taxes could

be exercised, respectively. to achieve its objectives. Although

the procedural adjustment of the tax administration provides procedures that allow proper

detection and determination of taxes and without coordination with the tax body

(typically, if it is not possible to determine the tax on the basis of the evidence, it shall lay down the

the tax administrator on the basis of the AIDS referred to in § 98 of the tax code),

This is the practice of the subsidiary principle, embarking only if

the tax entity does not meet his obligations, the claim of the tax.



[6] the penalty for late claims of tax non-compliance with the obligations of the boards

the claim of the tax, which imposes the tax regulations, or other tax laws.

It is populated with an element of illegality in the conduct of the tax sankcionovaném

the body. On the contrary, in the case that the tax entity the obligation to claim tax

meet, it is not decisive whether the tax was tvrzena correctly, or whether it was

subsequently hardened tax paid (in these cases, you can populate the

other statutory conditions take penalties in the form of penalty, respectively.

interest on arrears). Violation of obligation to claim the tax must necessarily be

sanctioned by the law, since otherwise the statutory obligation to

the tax agency say the tax has been imperfektní the norm. Indeed, the very

the existence of sanctions for breach of the obligation to properly claim the tax does

or the applicant.



[7] as to the harmfulness of the negotiations, the penalised occurs in

when violations of the legal obligations leads to the threat of a

the public interest. In the present case, having regard to the above

the fact that the tax claim is the basis for correct findings and

the determination of the tax, say that the failure to claim tax

generally regarded as a threat to itself determine and specify tax and

Subsequently, its remuneration, i.e.,. is a threat to the objectives of tax administration

as such. Failure to comply with the obligations of the tax claim is the usual

the formal expression of the negotiations that has materially the character of concealment

facts for tax administration, whether intentionally or through

negligence. The State, when the tax administrator is forced to determine and

determine the tax without cooperation with the tax body, is generally undesirable,

Apart from the cases when for example. This is a result of deliberate efforts to

tax evasion.



[8] with regard to the listed so you can infer the causal link between the

failure to meet the obligations of the tax claim and as a result in the form of tax

is not identified, determined and paid, where appropriate, the following steps are significantly

compounded. According to the explanatory memorandum to the tax regulations tax management

"the result of the interaction of other persons, in particular of tax bodies

that in the discharge of his duties significantly affect the success rate of

the performance of the revenue law (duty tax claim, the burden of proof) ".



[9] the secondary harmful consequence of that failure to submit

the tax claim is the potential emergence of administrative

the costs associated with it. The tax administrator shall on the one hand this misconduct

reveal (which may not be a simple matter in all cases),

they must then initiate a procedure to remove undesirable state (issue

challenges under section 145 of the tax code).



[10] the claimant in a given context is based on the assumption that the breach of the

the claim of the tax obligation is formally always the same regardless of the deliktem

what the subject of the claim relates to (the late filing of a tax return is

identified as a "violation of the obligations prescribed by law are equal", regardless of

how tall is the tax that is the subject of the claim). So

This, however, is in fact not. The obligation to claim taxes is not a "mere"

formal notification obligation or less significant administrative

requirement, but this is-as mentioned above-the essential element

the tax administration, which is finding, fixing and payment of taxes, and, therefore,

the achievement of the objectives of the tax administration, largely dependent. Good cooperation

tax agencies in the claims of their tax obligations is a fundamental

element necessary for the functioning of the tax system. It is therefore logical that


the result of non-compliance with the obligations of the tax claim in the form of making or

freeze-out of the findings, the determination and payment of the tax is the severity and

the scope of its impact on the legality, proper exercise of public authority and the

public budgets largely depends on the subject matter of the claim, IE.

especially since the amount of the alleged tax. It is obvious that the failure

return to the higher tax has otherwise similar cases

the more severe consequences than failure to return to a lower tax liability.

Establish the fine for late tax claim to the amount of tax that is

the subject of the late or not at all nepodaného the tax claim was therefore

by the legislature a rational measure, which reflects, inter alia,

harmfulness (hazards) of the tort action.



[11] a similar conclusion applies even in the case of tax deductions, because the aim of the

the tax administration is the correct findings and determination of tax, regardless of the

whether it comes from the perspective of the State of the tax obligation of positive or

negative. In both cases, the public interest, that the rights and obligations of the

in the administration of taxes were built for sure in law expected

time, and the more, the more it is a higher cash benefits.



[12] the appellant also prices from above, that the amount of

the fine for late tax claim derives not only from the amount of the tax

tax deduction or tax losses, which are the subject of the claim, but

at the same time also contains a time element, when the total amount of the fine is growing with

the length of time for which there is no obligation to claim taxes. The derivation of the above

fines from both the amount of the tax that is the subject of the claim, since the

non-compliance with the obligations of the tax claim, is the logical consequence of consistency

both elements, whose harmfulness, in time and in scope.



[13] the appellant's Opinion, which would formally identical acts

(failure to fulfil obligations claim) should follow the same sanctions regardless of

on the amount of tax, tax deduction or tax losses, which are the subject of

the claim is so must be rejected with reference to the general principle

Administrative and criminal law, according to which the gravity of the offence committed

tort derives from, inter alia, the gravity (actually or potentially)

caused by the effect. This result is then often directly or indirectly

quantified in the equity or other values and presumuje

so, to a large extent the decision of a public authority in a specific case. On

Apart from a series of circumstances that may influence the outcome of the

the assessment of a particular case (which include both the applicant

taking into account the exalted person of the offender, the gravity of the tort) is

the aftermath included in many cases directly to the factual

the substance of the misconduct or criminal offence (typically in the case of

qualified factual matters). It is derived from dividing

the boundaries between the different types of tort action. In practice, as

to do that though in individual cases about the same as formally

negotiations (e.g. on the offence of theft conducted under otherwise similar

circumstances), it is for the assessment of the gravity of the infringement (and even for

the subsequent establishment of the above penalties) key property value just

sankcionovaným was an act of prejudice. This also applies for failure to

the obligations of the tax claims, which corresponds to the gravity of the particular amount of tax

the findings, the determination and payment of the obligations were compounded by the failure to

or incapacitated. If the plaintiff claims to the contrary, you can use the above

the example of the criminal offence of theft compared to if

He claimed that "it does not matter whether the perpetrator stole 1 Crown or 1 million

Crowns, as well as still a theft ".



18. The circumstances of a particular case



[14] the circumstances of a particular case, following which the draft

The Constitutional Court, it should be noted that, in short, it was the

the situation, when the tax entity has filed tax returns with the tax administrator

electronically, but not some of the ways that tax regulations

It assumes as a permissible form of lodging in § 71 paragraph. 1. For such

the cases he knows the tax regulations pursuant to section 71, paragraph. 3 the possibility of additional confirmation

or repeat the submission by one of the legal ways to within 5 days with

in this case, are the effects of the original submission. If

There is no submission this way repeated or confirmed, staring at him,

as if it wasn't made at all. The possibility of an additional certificate or

review the submission, however, the tax entity did not use and tax returns

After belatedly handed up to the challenge of the tax authorities.



[15] Referred the situation cannot be considered a reason for establishing an

the smaller the severity of the breach of the obligation of the tax claim. The requirement for compliance with the

How do the legal submission is the basis for any effective

the exercise of public authority and to ensure that all submissions to

the public authorities was actually an authentic expression of the will of the operators,

that makes them. This principle applies to all procedural schedules in the framework of the

the rule of law (the administrative procedure code, the code of civil procedure, etc.). The possibility of

maintaining the effects of filing in the case of his endorsement or review under section

paragraph 71. 3 of the tax code is also known as the general rule of

procedural adjustments used by the administrative authorities, in General, the courts (see § 37

paragraph. 4 the administrative code or § 42 paragraph. 2 of the code of civil procedure).

At the same time it is a form of benevolence towards the podatelům, who have

the inadequacy of the original option of filing corrected retrospectively. Definitely

However, it cannot be that the tax entity has made a submission in the manner which the law

at the same time or does not know, and did not use the possibility of redress under section 71, paragraph. 3

the tax code, be considered as a "mitigating factor" in the case.

Such a procedure would lead to regulatory submissions qualify not only in

the tax area and to weaken respect for the need to fulfil the elementary

legal obligations. At the same time would be weakened by the force of the principle of "the right to

include the watchful ".



19. The alleged infringement of the right to own property and the principle of

the proportionality of penalties



[16] you can agree that the penalties for administrative offence, and therefore also for the

payment fraud, should not have winding-up character, IE. should not

constitute a disproportionate intervention in the intense financial circumstances of the individual, and

Therefore the violation of the right to own property under article. 11. 1 of the Charter.

The law, therefore, when setting the amount of the sanctions should take into account parameterized

the criterion of proportionality (proportionality).



[17] one of the legal ways of Vanquishing the nature of sanctions

suppress the use of the Institute's moderation of the above penalties on the basis of

taking into account the specific circumstances of the body, thus penalised the use

discretion in deciding administrative body that imposed the penalty. This

How is typical for administrative offences in the strict sense of the word. In contrast, for the

the so-called. payment delinquencies is a typical absence of discretion in their store.

These offenses arise ex lege and their amount is determined generally

as a percentage (e.g., interest, penalty).



[18] cannot be přisvědčit the fact that the lack of discretion when determining the amount of the

sanctions would automatically scrap the sanctions meant a character, respectively.

intervention in the financial circumstances of the individual with inadmissible intensity. In

this case, the ad absurdum were winding up virtually all of the penalties

for payment delinquencies.



[19] the reasons why the legislature selected a variant of the sanctions

emerging ex lege in advance the amount derived from a specific percentage

base or bounded by a fixed minimum or maximum threshold,

These are: (i) foreseeability and related legal certainty, (ii)

avoidance of arbitrariness on the part of the public authority, (iii) reduce the risk of

corruption, (iv) the administrative zvladatelnost, (v) speed control.

Penalties in the tax administration is different from the other administrative offences

among other things, that are stored in the nature of things many times higher

the number of cases that in time more currency. Element

administrative zvladatelnosti, which is closely linked with the need to

to ensure a reasonable rate, therefore, in the case of payment

offences considerably more significance than in the case of administrative offences in General.

The emergence of the penalties ex lege in the following cases, inter alia, allows you to engage

higher level of automation in their store for the tax, without which the

the management of these sanctions is difficult to readily understand.



[20] It, whether in the case of specific sanctions chosen variant of its

saving of the Act, or on the contrary will be used discretion, is to a large

extent a matter of legislative policy. "No general rule for

the legislature there does not exist, however, always should be in

deciding if the discretions maybe or even necessary, to take account of this,

whether the risk associated with the necessary degree of legal uncertainty, which allow

discretion is sufficiently balanced the needs of administrative rationality and

the capacity of the functioning of the public administration. The solution should be

made on the basis of factual, rational considerations, then at least with

taking into account, as have proven experience. " (Mates Instead Of P.

discretion in administrative punishment, Právní rozhledy No. 22/2014, Prague,

Publisher c. h. Beck s. r. a., with 772).



[21] in the case of penalties (payment offences), which routinely tax provisions

provides for a fixed penalty is not in the right sense of the word, but it is a

the penalties provided for a certain percentage of the amount of the fine, the performance of which the

violation of the tax obligation applies in a particular case. Therefore, in the

individual cases will be the amount of the fine, and that to a large extent in

Depending on the intensity of violations of the tax obligation, for which the range is

financial, whose violation concerned the key. This scope also to

largely reflects the individual economic circumstances penalised

the body, which are for a range of financial, specifying, as above

tax obligations (i.e. taxes, that should be tvrzena) is generally

directly proportional to the economic activities of the tax body, where applicable, its

the asset.



[22] Thus, although the penalties for administrative offences in the administration of taxes are not

as a rule, set to take place to the individual review of the circumstances

penalised in each individual case, has already

by itself the overall system setting their construction built in.


"automoderační" mechanism, which is the amount of the penalties (i.e. in this case

the percentage value) is determined by the legislature in the law itself and alone

It takes into account the severity of the violations of the tax obligations and to a large extent

individual economic circumstances penalised body.



[23] from the above it clearly follows that cannot identify with the statement

referred to in the proposal, that in extreme cases can lead to

undue interference with the individual's financial circumstances when imposing fines

under section 250 of the tax code. On the contrary, it is "all measured the same

the Metro ", contributes to the fairness of the system of penalties in the administration settings

taxes.



20. the case law dealing with the principle of proportionality of penalties



[24] with regard to the case-law cited in the proposal of the Constitutional Court are

its conclusions on the case apply only partially. Find

The Constitutional Court, SP. zn. PL. ÚS 12/03 cannot be applied to this case

without more, and this for the following reason. In the event that this

find deals, it was a fixed lower limit of fines,

you could have (or had) a competent administrative authority in the event of a breach

obligations to save, with the possibility of moderation has been given only

in the form of an increase in the fine imposed. From the nature of things, so it was type-

a different penalty than that which is being challenged in the proposal. The same applies for example. (I)

for an earlier similar finding of the Constitutional Court of 13 July. August 2002 sp.

Zn. PL. ÚS 3/02 (N 105/27 SbNU 177; 405/2002 Coll.).



[25] can i mention the finding of the Constitutional Court of 25 October. October 2011 SP. zn.

PL. ÚS 14/09 (N 183/63 SbNU 117; 22/2012 Coll.), which also dealt with the

the question of the determination of a certain fixed amount of the fine (here referred to as minimum

the amount of the fines). Reasoning of the Constitutional Court referred to in this award

more the fact that, in specific cases, not strict

recourse by way of the administrative punishment without moderation options considered

speech of the hardship. In the above finding is literally stated:

"The constitutional provisions do not require that the legislature in statutory determinations

penalty rates always dropped from the lower border of the acreage of the sanctions. Type

the severity of (harmful) negotiations of the kind of tort can be generally

so high that it does not allow nor in the individual case, provide for

' zero ' value of the acreage of the sanctions. Assessment of the lower limit of the penalty rates

It is fundamentally the things the legislature. Constitutional provisions do not contain concerning the question of

the lower limit of the penalty rates of any directive, however, must be complied with-

proportionality between the command type of the severity of the negotiations and tort

the amount of the penalty rates ". The Constitutional Court also found that the exclusion of

discretion in the decision of the administrative authority "can be achieved by secondary

positive results-namely the limitation of interpretation the arbitrariness of police

and the administrative authorities in the practical application of the rules and restrictions of corrupt

negotiations in assessing sanctions ".



[26] Finally, reference should be made also to find Constitutional Court of 15 June.

October 2013, SP. zn. PL. ÚS 3/13 (N 176/71 SbNU 81; 375/2013 Sb.)

dealt with a proposal to cancel the Institute fines in the case of the use of

ensure the tax on the payment of taxes pursuant to section 43 of the Act on excise tax, and

It's also because of the alleged breach of the principle of proportionality of penalties

as a result of its creation ex lege as a percentage of the tax arrears.

The Constitutional Court the proposal to repeal the sanctions, which, inter alia,

explained by the fact that "cannot put aside from the fact that the contested legal

the standard requirement for differentiation of sanctions no longer respects the fact that the stored

the fine is dependent on the amount of arrears of excise duty. From this

You can view on the above subject to the penalties stated in its

as a result reflects the volume of funds moving in trade with

mineral oil, alcohol, beer, wine and intermediate products, and tobacco

products, which corresponds to the amount of the tax, the tax body shall

admit and pay ... ". From the foregoing, that the penalties, derived from the above

tax obligations, which sanctioned the misconduct concerns, in itself generally

contains a certain element of differentiation, which is capable to some extent

replace the lack of discretion in the event of sanctions ex lege.



[27] with the findings of the Constitutional Court is to be in General

agree. Given the above, it should be noted that at the same time

the material appearance of the fine under section 250 of the tax code is based on the General

established legal principles and the requirements of the company, and it is not so with

them in the conflict. Comparing this fine with some of the fines, which

couldn't pass muster in a test of the constitutionality of the findings referred to in the constitutional

the Court is largely irrelevant, or cited the findings of the constitutional

the Court in fact testifies the constitutional conformity the penalties under section 250

the tax code.



[28] the requirement of differentiation of sanctions on the basis of discretion when deciding on

Indeed, their granting is not and cannot be absolute and not the Constitutional Court

such a requirement stated. In the case of certain "traditional" sanctions

differentiation is not even technically possible (e.g. for certain penalties

According to law No. 40/2009 Coll., the criminal code, as amended

rules-"confiscation" and "confiscation of replacement value".

"the loss of the honorary titles," "loss of military rank" or "removal").



21. The elements of moderation and of proportionality in the applicable fines



[29] in any of the above, it follows that the existence of the fine

emerging ex lege is not a priori contradictory with the principle of proportionality,

which also applies to the fine for late tax claim, it should be stressed that the

the principle of proportionality plays an important role in this adaptation of the fine.

The legislature so gradually into editing this fine included a relatively

a large number of moderačních elements, which are to ensure the adequacy of the

the sanctions while keeping the above described positive conception

directly from the law. Some of these features can be compared with other

penalties for payment delinquencies found uniquely only in penalties for delayed

the tax claim. In particular the plane it is these elements that moderation

generally pursue a goal of easing sanctions in cases where the specific misconduct

has a smaller degree of harmfulness:



-"automoderační" mechanism in the percentage amount of the fine setting

in proportion to the amount of tax that should be the subject of the claim, IE. a mechanism to

a certain extent taking into account the economic circumstances of the tax body (see

above)



-the fact that the fine does not arise if the delay with the filing of the tax

the claim was not longer than 5pracovních days-in this way occurs

a small tolerance for the determination of taxes exceeding the time limit, the

harm is relatively low,



-Edit the "capping", i.e. the amount of the fine. determination of the maximum

What is the penalty in a particular case may reach (not more than 5% of the set

tax, tax deduction or tax losses, or not more than 0.5% of the total.

the amount of tax that was required to include in the report or bill payer

the tax; at the same time, the fine shall not be higher than 300 USD)-this is the

to ensure that the final amount of the fine could not, in comparison with the amount of

set taxes reach too high a (fixed) value, and it

both from the perspective of the relative (percentage), so from the perspective of

absolute (maximum amount),



-a stricter regime for the tax claim, which was lodged, compared

the claim, which was only belatedly submitted (article 250, paragraph 4, of the tax

procedure),



-the fact that the penalty incurred as a result of late submission of tax

If not prescribed and claim tax entity does not required to

to pay, if the amount is less than the amount of CZK 200 (§ 250 (3)

the tax code)-in this way once again comes to the tolerance of small claims

misconduct and at the same time reflect the principles of economic efficiency and procedural

Economics,



-reduction of the amount of the fine in half for the fulfilment of the legal conditions (section 250

paragraph. 7 the tax code)-this form of moderation has been introduced since

2014, while playing in the case that the tax body shall fulfil their

obligation to submit tax claims within 30 days from the expiry of the deadline for the vain

his submission and in that calendar year by the tax wasn't in tax

the body at the time of payment of the assessment found another delay in

the filing of the claim,



-a special rule for a fine for late tax claim for income tax

from dependent activities (§ 38o Act on income tax)-this form of

moderation was introduced from the year 2015; lies in the fact that it is a part of the

component of the tax base from income from dependent activities, from which the payer

tax deducted the advance on tax, more than 50% of the total tax base,

reducing the fine for late tax claim for the tax return to the tax

on the tenth of the income of natural persons; in this way, it has been deleted

objectively existing legislation when the hardness of a fine for infringement of the

the obligations of the tax claim by the tax body has been inferred from the

the total amount of the tax on the income of natural persons, although the greater part of this tax

has already been paid by the payer of income tax from dependent activities and tax

subject materially speaking only about the obligation to claim violated

taxes from other revenue than from dependent activities (removal of this

the hardness was required in the past. The Ombudsman).



[30] a common characteristic of the above moderačních elements is that they are

nárokové. If there is compliance with the conditions envisaged in the Act, the administrator of the

the Conference will proceed automatically, without taking account of their

It was necessary to apply. Because they are a predictable and at the same time creates

motivational element for redress for the tax bodies

obligation to submit a tax claim violates.



[31] another way, how can having regard to individual circumstances

affect the effects of the sanctions on the tax entity, is the use of the options Institute

posečkání or the layout of the remuneration payments (cf. § 156 et seq..

the tax code). In compliance with the law, the implied conditions,

Tax Manager, at the request of the tax body or permit ex officio.

posečkání payment of the levy, where appropriate, the layout of its payment on installments.



22. The alleged infringement of the principle of equality



[32] from the fact, that the fine for late tax claims is bound to the

the amount of the tax that is the subject of the claim, the applicant also concludes that


It is a violation of the equality of tax entities in relation to how

the high is their tax obligation. To the question of understanding of equality can be

refer to for example. the finding of the Constitutional Court of 9 June. March 2004, SP. zn.

PL. ÚS 38/02 (N 36/32 SbNU 345; 299/2004 Coll.), according to which: "the constitutional

the Court does not understand equality as an absolute, but rather as a relative (and, moreover,

akcesorickou in relation to other fundamental rights and freedoms) ". As already

mentioned above, individual cases of violation of the obligations of the

claim tax its severity, or its implications for the achievement of the objectives of the

the tax administration, in particular, depending on the tax obligation is subject

the allegation. It is not true that the fine was derived from the amount of the alleged tax

discriminates against the part of the bodies, because of the amount of the alleged tax just

determined by the severity of the particular misconduct. This is not the case

showing enough similar characteristics in their case should be

be applied to the same amount of penalties. The finding of the Constitutional Court of 15 June.

October 2013, SP. zn. PL. ÚS 3/13 lists (N 176/71 SbNU 81; 375/2013 Sb.)

that "Although it does not follow from the postulátu equality requirement general equality

each, however, it follows from the requirement that the law unreasonably

does not specifically favour or neznevýhodňovalo some before others. The constitutional order

Therefore, even the law-based inequality, if it constitutionally

acceptable reasons. "



[33] from the perspective of ensuring equal and non-discriminatory access to tax

the operators then has the fundamental importance of construction just fine for delayed

claim tax as fines arising ex lege. This solution

through exclusion allows you to eliminate arbitrary discretion when

the decision-making activities of the tax administrator, precedes the possible corruption of the negotiations

and makes a fine predictable and quantifiable in advance (i.e. fine fills

the principle of protection of legitimate expectations on the part of tax bodies). Edit

the fine, so in many aspects of the control of relative equality of tax bodies

strengthens, which contributes the amount guaranteed by law moderačních

elements that take account of the specific circumstances of each selected

cases of violation of the obligations of the tax claim.



23. the impact of derogation



[34] as regards the quantity of cases that would be the eventual derogations of the disputed

the provisions were without prejudice to the provisions of § 71, referred to in paragraph 1(b). 4 of the law on

The Constitutional Court in General, the rights and obligations of legal relations,

incurred before the Constitutional Court law, shall remain

unaffected. In accordance with paragraph 2 of the same section then generally,

final decisions issued on the basis of the law, which was

cancelled shall remain unaffected; rights and obligations under such

the decision, however, cannot perform. Abrogation of legal provisions, in

the respect of these rules should not be made with ex tunc effects,

Since then it was a manifestation of non-permissible right retroactive.



[35] the impact on specific tax lawsuits would be with regard to the above

include (i) the cases in which a final decision has not yet been

the obligation to pay the fine for late tax claims, or this

the decision is the subject of the extraordinary remedies and supervisory resources,

where appropriate, judicial review, and (ii) the cases in which it was already about

the obligation to pay the fine, but a final decision has not yet been to the

her remuneration.



[36] in the case of the first group would be abrogation in the impossibility of obligations

pay a fine to decide, where appropriate, in the illegality has not yet nepravomocného

the decision on the obligation to pay the fine. In the case of the second group would

nevykonatelnost decision on abrogation meant the obligation to pay the

the fine has not been paid (fully or partly). There would

only cases where the delay with the implementation of the payment of the fine is determined by the

inactivity of the tax authorities. The impact would be reflected even in cases

When the enforcement proceedings (typically of wages), or in the

cases of posečkání with the payment of the fine. So, paradoxically, the effect of the derogation should

positively felt by those who have not fulfilled the obligation to pay the fine and properly

in a timely manner.



[37] the immediate financial impact of the abolition of the Institute fines for delayed

You cannot claim the tax for one of the listed groups of cases

to quantify, however, you can estimate that the impact will not be possible to

described as essential.



[38] as a much more serious the consequences of the annulment of the fine can be marked for

late claims for tax futuro. In particular, this cancellation led

long-term deterioration of discipline in the performance of the duties of the tax claim

party tax entities, and to an increase in cases, when this obligation is not

fulfilled. It would have an effect on the unwanted increase in the administration of the United

with the detection of the cases where the tax has not been tvrzena, and with the subsequent

axle arrangement. As a result, then in the long term there has been a weakening of the

the fulfilment of the objectives of the tax administration in the form of a correct detection and determination

taxes and ensure its payment. The cancellation of the fines would mean i

negative signal in relation to the general requirement that each filled

their legal obligations properly and in a timely manner, as well as the weakening of the principle of "the right to

include the watchful ". Last but not least would repeal Institute fines for

delayed claims the tax case had a negative effect in relation to the

other sanctions in the framework of the entire legal order, which are stored directly

of the Act, and therefore a violation of legal certainty with regard to the existing

the design of most of the payment.



[39] the Abrogation of legislation or the provisions of the Constitutional Court

the material can be considered as legislative step of its kind. Any change or

the abolition of legal regulation is from the nature of things some intervention in the legal

certainty of legal norms and the mailing of the stability of the rule of law, which also applies

for the grant made by the Constitutional Court. In this case, it is therefore

In addition to the other must make some form of assessment of the legitimacy and

the intensity of the interest to change the legal regulation of the way its abrogation

the provisions. Meanwhile, that derogation should be the last of its kind

options to remedy any deficiencies of legislation, which should

be accessed only if you cannot achieve otherwise axles, in particular

the interpretation of the provision is constitutionally Conformal.



24. Summary and conclusion



[40] the provisions of section 250 of the tax code modifies the fine for late claims

the tax, which, in particular, represents an incentive to the timely submission of tax

the claim, without which effective tax administration is not possible. The applicant has the

that the provisions of section 250 of the tax code is in conflict with the principle of

proportionality in the imposition of sanctions, since the storage of fine from the law

leads to a restriction of the tax options, take account of the specific

circumstances of the case, the person of the delinquent and his circumstances.



[41] the appellant referred to the opinion must be rejected. Penalties

directly from the Act cannot be generally described as unconstitutional, and it especially there,

where is the amount of the penalty determined in percentage from a base, as is

This just in case the fines. The appellant mistakenly believes that the

delayed claims tax has always the same gravity, regardless of

It's about as high a tax in the claim. Penalties arising directly

of the Act in the amount of the advance shows predictability and with

related legal certainty, avoidance of arbitrariness on the part of the public

power, reducing the risk of corruption, and ensure the administrative

zvladatelnosti and speed control. The relevance of these reasons, and therefore the

the general admissibility of fines laid down by law, the Constitutional Court already in

the past, he said. In the case of fines for late tax claim in addition

the law provides for a number of mitigation elements even when setting the fine

by law it is there any differentiation according to the severity of the case (the fine does not arise in the

small claims cases, under certain conditions, reduced to half

etc.)



[42] the solution that the legislature in the case in question fine choice is not

contrary to the prohibition of arbitrariness, nor with the principle of equality, and is in accordance

the basic principles of tax law expressed in the case law

The Constitutional Court, according to which "from the constitutional principle of the separation of powers (article. 2

paragraph. 1 of the Constitution), as well as of the constitutional definition of the legislative power (article 15 of the

paragraph. 1 of the Constitution) for the legislature passes a wide scope for decisions about

the subject, the extent and scale of taxes, fees, and financial sanctions "[see find

of 18 July 2003. August 2004, SP. zn. PL. ÚS 7/03 (N 113/34 165 SbNU; 512/2004

SB.)].



[43] for the above reasons, the Government has considered that it could not agree with the

request for revocation of section 250 of the tax code.



25. The public protector of rights by filing of 10 June. December 2014 said

The Constitutional Court, that the right of entry to the proceedings.



26. The Constitutional Court received comments on the draft posted by mover, which

the replica has not submitted to them.



III.



The conditions of the appellant's evidence is active



27. The Constitutional Court first addressed the appellant's evidence to the active

the submission of the application for revocation of the contested provisions. The condition of the litigation

consideration of such a proposal is the fulfillment of the article. paragraph 95. 2 of the Constitution, in

the sense that it must act on the Bill, which is supposed to be when the solution matters

used, IE. Act or its provisions, which, it is proposed to abolish,

the applicant should be directly applied in resolving a particular dispute.

The Constitutional Court found this condition the filled, since the projector

decides on the action against the decision of the General Directorate for the main

the city of Prague from 21 October. October 2011 no: 12887/11-1500-106054, ref.:

12888/11-1500-106054 and REF.: 12889/11-1500-106054, which was

applied in the contested provisions of the tax code.



IV.



The constitutional conformity of the legislative process, the adoption of the contested provisions



28. The Constitutional Court is in accordance with the provisions of section 68, paragraph. 2 of the law on

The Constitutional Court in proceedings for the control of standards required to assess whether the contested

law (individual provisions) was adopted and published within the limits of the Constitution

established competence and constitutionally prescribed way.



29. From the comments on the constitutional complaint, the Constitutional Court doručenému

The Chamber of Deputies follows that law No 280/2009 Coll. was in

The Chamber of Deputies discussed as print No 685 (Government proposal)

reading on 29. April 2009 and was commanded by the budget and control

of the Committee. The Committee discussed the draft law of 3 October. June 2009


(the resolution is contained in the press No 685/1). The Audit Committee discussed

Bill 27 October. May 2009 (resolution is contained in the press No.

685/2). Second reading of the Bill took place on 12. June 2009 and

the amendments were processed as print No 685/3. Third reading

the Bill took place on 17. in June 2009, the Bill was

The Chamber of Deputies approved the text of the amendments.



30. Act No. 280/2009 Coll. was the Senate as the Bill By

Deputies sent to the 7 June. in July 2009, and the provisions of section 250 be

approved on 22. July, 2009. The President of the Republic signed the Act of the day

August 11, 2009, and the law was announced June 3. September 2009 in the collection of laws in

the amount of 87 under number 280/2009 Sb.



31. The provisions of section 250 of the tax code was amended in part the second

article. (III) in paragraphs 54 and 55 of Act No. 458/2011 Coll. Bill was

approved by the Chamber of Deputies on 9 December November 2011, the Senate proposal

discuss on 14. a meeting of the Senate the day 8. December 2011 and returned it to the

The House of representatives with amendments. The Chamber of Deputies, the law

adopted at the 32. the meeting of 20 October. December 2011. The President of the Republic, the law

signed 27 July. December 2011 and announced he was on 30. December 2011 in

The collection of laws on the amount of 158 under number 458/2011 Sb.



32. Furthermore, the provisions of section 250 of the twelfth amendment in the part in the article. XXI

in point 116 legal measures the Senate no 344/2013, the Government proposal of this Sb.

statutory measures referred the Senate 25 October. September 2009. The Senate approved

the legal measures of the day 10. October 13 and 16 December. October 2013 back print

The Chamber of deputies to complete the legislative process. The President of the

Republic legal measures signed by 17. October 2013 and declared it was the day

5. November 2013 in the collection of laws under no. 134 in the amount of 344/13 Sb.

The Chamber of Deputies approved the legal measures at its meeting March 27.

November 2013. The resolution of the Chamber of Deputies was published June 29.

November 2013 in the collection of laws under no. 150 in 382/2013 Sb.



33. The Constitutional Court has checked that the law and its subsequent amendments were adopted

constitutionally prescribed procedure, were signed by the respective constitutional

agents and duly promulgated.



In the.



The text of the contested provisions



34. The contested provisions of section 250 of the tax code originally in the text by 31.

December 2012 was the following:



The fine for late tax claim



(1) the tax body shall be incurred the obligation to pay the fine, the absence of the tax

return or additional tax return, although he had this obligation,

or will do so after the deadline, and this delay is longer than 5

working days, in the amount of



and 0.05% of fixed tax) for each day of delay, up to the following

However, the 5% of the taxes,



(b) 0.05%) provided for tax deduction for each of the following day

delay, but not more than 5% of the specified tax deduction, or



(c) 0.01% fixed) tax losses for each day of delay,

but not more than 5% of the tax losses.



(2) taxpayers arises the obligation to pay the fine, the absence of the report,

the Bill, the subsequent message or additional billing, although he had

This duty, or if the time limit laid down, and this delay

is longer than 5 working days, at the rate of 0.05% of the total amount of the tax,

He was obliged to include in the report or statement for each of the following

a day late, but not more than 0.5% of the total amount of tax that was

in the report or statement.



(3) if the amount calculated pursuant to paragraph 1 or 2 is lower than the

$ 500, the amount of the fine for late tax claim 500 Czk.



(4) the maximum amount calculated in accordance with paragraph 1 or 2 shall be

more than 300 000 Czk.



(5) the obligation to pay the penalty tax administrator shall decide payment výměrem

and at the same time it prescribes the registration taxes. The fine is payable within 30 days of the

from the date of notification of the payment of the assessment.



35. Law No. 458/2011 Coll. was with effect from 1. January 2012 changed §

250 paragraph. 3 so that it reads:



"(3) a fine for late tax claims arising as a result of the late submission of

the proper tax claims or additional tax claims

If not prescribed and tax entity does not pay her obligation,

If the amount calculated pursuant to paragraph 1 or 2, the amount is less than the

200 Czk. ".



For paragraph 3 was inserted a new paragraph 4 is added:



"(4) in the case where the tax entity does not give a proper tax claims or

additional tax claims, although this obligation, and fails to do so, or

Additionally, after the time when the option to submit this claim takes the

the calculation of the amounts referred to in paragraph 1 or 2 fixed upper limit; the amount of the

the fine for late tax claim in this case is always at least 500

CZK. ".



Paragraphs 4 and 5 have been identified as paragraphs 5 and 6.



36. The legal measures the Senate no 344/2013 Coll. was the provisions of section 250 in

part of the twelfth in the article. XXI in section 116, with effect from 1. January 2014,

supplemented by the following paragraph 7 is added:



"(7) the amount of the fine for late tax claims is half, if



and shall submit the proper tax entity) tax claim or additional tax

the claim within 30 days of the expiry of the deadline for its last submission and



(b)) in a given calendar year was not the tax administrator in tax body in

the time of payment of the assessment found another delay in the submission of the proper

the tax claim or additional tax claims ".



37. The contested provisions of section 250 of the tax code, valid on the date of the adoption of the

This award, which the applicant proposes to abolish, as follows:



(1) the tax body shall be incurred the obligation to pay the fine, the absence of the tax

return or additional tax return, although he had this obligation,

or will do so after the deadline, and this delay is longer than 5

working days, in the amount of



and 0.05% of fixed tax) for each day of delay, up to the following

However, the 5% of the taxes,



(b) 0.05%) provided for tax deduction for each of the following day

delay, but not more than 5% of the specified tax deduction, or



(c) 0.01% fixed) tax losses for each day of delay,

but not more than 5% of the tax losses.



(2) taxpayers arises the obligation to pay the fine, the absence of the report,

the Bill, the subsequent message or additional billing, although he had

This duty, or if the time limit laid down, and this delay

is longer than 5 working days, at the rate of 0.05% of the total amount of the tax,

He was obliged to include in the report or statement for each of the following

a day late, but not more than 0.5% of the total amount of tax that was

in the report or statement.



(3) a fine for late tax claims arising as a result of the late submission of

the proper tax claims or additional tax claims

If not prescribed and tax entity does not pay her obligation,

If the amount calculated pursuant to paragraph 1 or 2, the amount is less than the

200 Czk.



(4) in the case where the tax entity does not give a proper tax claims or

additional tax claims, although this obligation, and fails to do so, or

Additionally, after the time when the option to submit this claim takes the

the calculation of the amounts referred to in paragraph 1 or 2 fixed upper limit; the amount of the

the fine for late tax claim in this case is always at least 500

CZK.



(5) the maximum amount calculated in accordance with paragraph 1 or 2 shall be

more than 300 000 Czk.



(6) the obligation to pay the penalty tax administrator shall decide payment výměrem

and at the same time it prescribes the registration taxes. The fine is payable within 30 days of the

from the date of notification of the payment of the assessment.



(7) the amount of the fine for late tax claims is half, if



and shall submit the proper tax entity) tax claim or additional tax

the claim within 30 days of the expiry of the deadline for its last submission and



(b)) in a given calendar year was not the tax administrator in tax body in

the time of payment of the assessment found another delay in the submission of the proper

the tax claim or additional tax claims.



VI.



The abandonment of an oral hearing



38. The Constitutional Court found that the oral proceedings would not bring a significant

the shift in the clarification of things than what follows from the written acts of the participants

the proceedings. With regard to the provisions of section 44 of the Act on the Constitutional Court, as amended by

Law No. 404/2012 Coll., no need to prompt the parties to

their position on this issue, therefore it was possible to decide on the matter without

the holding of an oral hearing.



VII.



The basis of a review of the contested provisions



39. the applicant has received the proposal seeks the annulment of the provisions of section 250

the tax code, as amended, as it is considered that the

the contested provision is limited space for the administrative discretion of the competent

authority when imposing fines, paušalizuje, seriousness of the illegality

the negotiations and does not allow to take into account the circumstances of each case, in the

accordance with the principle of proportionality in the imposition of sanctions. Therefore, in accordance with

the appellant's opinion, this provision applied to the conclusions of the Constitutional Court

expressed in finding SP. zn. PL. ÚS 12/03. The contested provisions pursuant to

the claim of the petitioner is also infringed the constitutional right to equality bodies

expressed in the article. 1 of the Charter, and that provision extends to property

the ratios of the individual with great intensity, that it violates the fundamental right to

ownership protection enshrined in article. 11 of the Charter.



40. By the contested provisions of the tax arises to a person the obligation to pay the fine,

the absence of the tax return or the additional tax return, if such

and it should fulfil its obligation within the time limit, and this delay is

longer than five days.



41. According to the article. 1 (1). 1 the Constitution of the Czech Republic is a democratic, legal

State based on respect for the rights and freedoms of man and citizen. From

the principle of the rule of law can be inferred the basic rules of functioning of the State

power, which also includes the principle of proportionality (proportionality). This

the principle is based on the premise that the intervention into fundamental rights or freedoms, and

If it does not assume their constitutional modification can occur in the case of

their mutual conflict, or in the event of a collision with other constitutionally protected

value, which does not have the nature of a fundamental right and freedom/public good/

[cf. Constitutional Court dated October 9, 1996, SP. zn. PL. ÚS 15/96

(N 99/6 SbNU 213; 280/1996 Coll.)]. In the case of taxes, therefore, as to the assessment of the


the restriction of the fundamental right to property guaranteed article. 11. 1

The Charter for reasons of public interest to the fulfillment of the State budget

aprobovaného article. 11. 5 of the Charter, and for purposes connected with the

the implementation of the functions of the State.



42. On the questions of the constitutionality of legislation of taxes, fees, or. other

similar benefits stipulated by law, the Constitutional Court of the CSFR expressed in

the award of 8 June. October 1992, SP. zn. PL. ÚS 22/92, which established the

in terms of a review of tax equality, respectively. tax proportionality.

The review of the constitutionality of legal provisions, tax, fee, or. other similar

the law provided for compulsory levies, as well as the monetary penalties, the Constitutional

the Court addressed in the findings of 13 June. August 2002, SP. zn. PL. ÚS 3/02 (N

105/27 SbNU 177; 405/2002 Coll.), of 9 June. March 2004, SP. zn. Pl. ÚS

38/02 (N 36/32 SbNU 345; 299/2004 Coll.) of 10 June 1999. March 2004, SP. zn.

PL. ÚS 12/03 (N 37/32 SbNU 367; 300/2004 Coll.), of 18 December 2003. August 2004

SP. zn. PL. ÚS 7/03 (N 113/34 165 SbNU; 512/2004 Coll.), of 21 October 2003. April

2009 SP. zn. PL. ÚS 29/08 (N 89/53 SbNU 125; 181/2009 Coll.), from 25 June.

October 2011 SP. zn. PL. ÚS 14/09 (N 183/63 SbNU 117; 22/2012 Sb.)

15 July. October 2013, SP. zn. PL. ÚS 3/13 (N 176/71 SbNU 81; 375/2013

SB.) of 10 June 1999. July 2014, SP. zn. PL. ÚS 31/13 (162/2014 Sb.)

9 June. September 2014, SP. zn. PL. ÚS 52/13 (219/2014 Sb.).



43. the appropriate application of the methodology for the review of the constitutionality of legal provisions

the tax charge. other similar statutory mandatory benefits,

as well as financial sanctions, the Constitutional Court expressed in the award of 18 December.

August 2004, SP. zn. PL. ÚS 7/03 (N 113/34 165 SbNU; 512/2004 Sb.)

in the matter of the assessment of the conditions and rates of legal liability insurance

the employer's occupational injury or occupational disease,

where to apply the structure of the principle of proportionality in the strict sense, and it

the principle of proportionality in the sense of exclusion, only extreme

disproporcionality. In this decision, the Constitutional Court primarily

He stated that "the constitutional review of taxes, fees and penalties

includes in addition to the maxims of the exclusion of extreme disproporcionality, also

the assessment from the perspective of compliance with kautel arising from the constitutional principle of

equality, both neakcesorické (article 1 of the Charter), IE. arising from the

request exclusion of arbitrariness in the distinction between operators and the rights and

akcesorické in the range defined in the article. 3 (3). 1 of the Charter ".



44. You cannot forget the sense and purpose of the fines. The Constitutional Court has already

previously stated that its judgment cannot, on the suitability of public policies

replace the judgment of a democratically elected legislature, which is in the realm of

a wide range of discretion of public policies, and also for the possible failure of

the chosen solution bears the political responsibility. In other words, the legislature

in the tax area can do even irrational steps, which, however, is not yet

the reason for the intervention of the Constitutional Court. He hit only if the

restriction of ownership rights in the intensity of the so-called. rdousícího effect, or

If there is a breach of the principle of equality, in his akcesorické (here in

relation to other fundamental rights) or neakcesorické form.



45. The Constitutional Court also verified, how is the question of fines for late claims

the taxes dealt with in foreign legislation. In most of the Member countries

The European Union is in similar cases, the calculated penalties fixed or

the percentage provided for.



VIII.



Your own review of the contested provisions



46. in relation to the laws governing economic issues (taxes, public

of the aid, the regulation of economic activity), the Constitutional Court has already in the past

for maintaining the maximum degree of restraint. The Constitutional Court in the

the examination of the constitutionality of the contested provisions drawn from its case-law

(paragraph 42 above), from which depart. The proposal is not, as regards the alleged

the unconstitutionality of the contested provision, reasonable.



47. Article 11 of the Charter regulates the right to own property, and in accordance with

paragraph. 5 of this article, you can save the taxes and charges on the basis of

the law. You can přisvědčit the claimant that the taxes and fees are

the impact of the ownership of the realm of the person because of the withdrawal of cash

the resources that would otherwise have remained in the possession of that person. In the award

of 21 April 2004. April 2009, SP. zn. PL. ÚS 29/08 (N 89/53 SbNU 125; 181/2009

SB.) The Constitutional Court stated that the constitutional principle of the separation of powers (article 2

paragraph. 1 of the Constitution), as well as of the constitutional definition of the legislative power (article 15 of the

paragraph. 1 of the Constitution) for the legislature passes the relatively wide margin for

deciding on the subject, the extent and scope of the tax so as to ensure the purpose of the

the tax or fee, which is first and foremost a national security

the budget. Although the rate of legal decisions of the State of the object,

the extent and scope of the principle of taxation in the very broad, is not unlimited, however,

because when you save taxes and fees is to be taken into account for the protection of

ownership rights guaranteed, the article. 11. 1 of the Charter. This consideration is

of course, also applies to the review of the constitutionality of the issues now being executed

regulatory fines for late filing or failure to file a tax return

the tax return.



48. The Constitutional Court recalled that the right to property is also protected by article.

1 of Protocol No. 1 to the Convention for the protection of human rights and fundamental freedoms

(hereinafter referred to as "the Convention"), which is any natural or legal person

the right to peacefully enjoy their property. However, even under the Convention is not

the absolute law of the right of ownership, since the Protocol to the Convention allows for the

certain conditions, deprivation of property (paragraph 1), and in its second paragraph,

grants Contracting States the right to adopt laws that are considered

necessary to adapt the use of property in accordance with the general interest, and

to secure the payment of taxes. That was the obligation to pay tax in accordance with the

The Convention, it must keep track of general interest; States have flexibility in how

to define what they consider necessary. According to the European Court of

human rights can the collection of taxes, except in the case of the discriminatory tax

mode, violate article. 1 protocol only when on of the treated

the intolerable burden or subverts his financial situation. Due to the

the text of the Convention the European Court of human rights assesses taxes only from

kautel resulting from the akcesorické point of view of equality (article 14 of the Convention),

not in terms of equality before the law.



49. The Constitutional Court, in examining whether the intervention into the basic

the right to own property was in accordance with the article. 11. 1 of the Charter,

by default, assessed in the first place, whether they did so on the basis of the law

and in its limits. If these conditions are met, examines whether the

the measure in question pursues a legitimate aim (constitutionally qualified) his

restrictions, and if so, whether these measures to achieve this objective,

suitable (suitability requirement), further, that this goal cannot be achieved

Another way, which would be to the basic law more

(the requirement of necessity), and finally, whether the interest in achieving this goal in

the framework of a legal relationship outweigh the Basic Law of the concerned

(proportionality in a strict sense).



50. Respect for the rights and freedoms of the individual is undoubtedly one of those

the principles of the rule of law, as has in mind the preamble of the Constitution, from which it can be

one of the fundamental rules to infer the functioning of State power, which is

the principle of proportionality (proportionality), and the prohibition of abuse of rights, as

Indeed, in a number of the findings of the Constitutional Court ruled [cf. the award of 13 April.

August 2002, SP. zn. PL. ÚS 3/02 (N 105/27 SbNU 177; 405/2002 Coll.)]. This

the principle is based on the premise that the intervention into fundamental rights or freedoms, and

If it does not assume their constitutional modification can occur in the case of

their mutual conflict, or in the event of a collision with other constitutionally protected

value, which does not have the nature of a fundamental right and freedom/public good/.

However, in these cases, the need to assess the purpose of such a (target)

intervention in relation to the resources used, with a yardstick for this

the assessment is no longer referred to the principle of proportionality (the adequacy in the wider

the meaning of), which can also be called the ban more interference in the rights of the

and freedoms. This general policy covers the three principles or criteria

the assessment of the admissibility of the intervention. The first of these is the principle of eligibility

the fulfillment of the purpose (or fitness), according to which it must be relevant

measures at all able to achieve the intended objective, which is to protect the

another of the basic law, or the public good. Then it is

the principle of necessity, according to which it is allowed to use only the most environmentally-friendly

-in relation to the fundamental rights and freedoms-of more possible

resources. The third principle is the principle of proportionality (in the strict sense),

According to which the injury on the basic law must not be disproportionate in relation to the

the intended target, IE. measures restricting fundamental human rights and

freedom must not, in the case of the collision of the basic rights and freedom with the public

interest, its negative consequences exceed benefits, which

represents the public interest in such measures. At this point based on the

from the consideration of empirical, system, context and value

the arguments. Empirical argument can be understood the seriousness of the phenomenon, the effective

that is associated with the protection of a fundamental right; the system argument

considering the meaning and classification of means of basic rights or

of freedom in the system of fundamental rights and freedoms. The context argument can be

understand other negative effects of the restriction of one of the basic rights in the

as a result of the preference of another; the value argument is considering

the positives in the collision-standing fundamental rights relative to the accepted

the hierarchy of values).



51. In accordance with the above conclusions of the Constitutional Court mainly examined

whether this intervention in the legal sphere of the individual can also be considered as

the intervention of the constitutionally guaranteed rights and freedoms. The fine as a constitutionally

the permissible deprivation of property-unlike the taxes and fees-explicitly in the

article. 11 of the Charter not listed. However, the situation is somewhat different in the case of

protection of ownership rights under article. 1 of the Protocol to the Convention, in accordance with

which States may adopt laws that they deem necessary to

adjust the use of property in accordance with the general interest or to secure the payment of

taxes and other fees or fines. From the above it can be inferred that the


the fines, as well as taxes and fees fall within the sphere of legal regulation

article. 11 of the Charter, or article. 1 of the Protocol to the Convention and the represent, in principle,

permissible interference with the right of ownership of the individual, which applies for the

provided, if they respected the principles of the rule of law (cf. Article 4

paragraph. 4 of the Charter). It is to be noted that the fine can be considered

for intervention with constitutional dimensions, if interferes with the property consequences of

individuals with considerable intensity. This factor is the Constitutional Court will be

deal with in connection with the application of the principle of proportionality.



52. As already mentioned above, the purpose of the legislation was

the imposition of penalties for filing a tax return, report or statement after

set a time limit or for their failure at all, with the purpose of

the existence of taxes to ensure the financing of public needs of the company.

Correct determination of taxes is findings and then along with the security of their

payment order to the tax administration. Illegal and harmful in nature

the hearing in the case is legally sanctioned, so that

"not pay". Referred to the intervention is so qualified to fulfill the principle of (the criterion)

eligibility, since it leads to the intended target.



53. As regards the additional criterion, which is the principle of necessity, can

The Constitutional Court concluded that the intervention of this principle fully corresponds to,

as regards implementation, on the basis of the Act provided for the receipt of public

the budget. In the opinion of the Constitutional Court, such a measure is necessary to

in order to ensure the effective functioning of the State apparatus and public

services. In question fine so represents a shot in the constitutionally

guaranteed rights and freedoms, specifically to title, but

below the constitutional plane.



54. the assessment of the question whether it is a such a hit that extends

to the property relations with considerable intensity and the degree of injury that

interference generated is just one of the aspects of that principle

adequacy. The basic criterion of the need, in the opinion

The Constitutional Court, is called. the criterion of nature, according to which the

is true that not every deprivation of property on the basis of the fines. the fees and

taxes, determined by the intervention in the property rights, but only those which

property relations of the body fundamentally changes, IE. so, changing its

total assets position "marred" the same nature of the asset. In

a particular case is to be assumed, that under the provisions of section 1 of the

paragraph. 3 of the tax code, income tax return, report or statement

filed by the tax body "the basis for a correct detection and determination

the tax ", is therefore an essential element for the functioning of the tax system. To do this,

It should be noted that the administration of taxes in General is built on the principle of

According to which the tax entity has an obligation and burden of claims concerning their

tax obligations. Illegal is such a hit to assets, in

as a result of which would be "destroyed" property base for further

business, in other words not acceptable are those

the fines, which are winding up the character. If the amount of the fine for the

delayed claims taxes tied to the body of the tax payer and is derived from the

the amount of tax (on the basis of economic activity), which is the subject of the claim,

and since the failure of the tax claim, i.e., from the intensity of the

violation of tax obligations, and, moreover, is limited to a maximum

You cannot close the border, than that does not constitute enough intensive intervention

the assets, which would be on the body concerned was loading

unbearable burden. Seen from the perspective of the constitutionally guaranteed rights and

freedoms of the alleged intervention corresponds to the principle of proportionality (criterion).



55. It is indisputable that tax collection is to be predictable and sanctions

for the administrative offence, thus paying the tort should not be winding-up

the character. In the case of penalties arise ex lege in the given

the amount derived from a particular base, and because of the predictability and

related legal certainty, avoidance of arbitrariness on the part of the authority

public power, reducing the risk of corruption, administrative zvladatelnosti

(automation of their store for tax administrator) and speed control. It

whether in the case of specific sanctions chosen variant of its store of

Act, or the diskerece, is largely a matter of

legislative and political. The amount of the penalties for the offence, in particular the case for the

filing a tax return for the tax electronically, but not

some of the ways that tax regulations as a permissible form of assumed

submission in section 71, paragraph. 1, when the tax entity did not use the opportunity of the additional

confirm or repeat filing and tax returns filed late to

the challenge of the tax administrator, is directly proportional to the economic activities of the tax

entity, or its assets, and contains in itself a certain element

differentiation, which is able to replace to some extent the lack of discretion

in the event of sanctions ex lege [cf. find dated 15 October 2013 sp.

Zn. PL. ÚS 3/13 (N 176/71 SbNU 81; 375/2013 Sb.)].



56. The Constitutional Court is of the opinion that the amount of the penalty (the percentage

the value specified by the legislature in the law itself) takes into account the severity of itself

violation of tax obligations and to a large extent and individual economic

the ratios of the penalised body. It is quite clear that the measures

It is appropriate to the intended target. Violations of the obligation is

made in a predictable and identifiable manner to the front, which excludes

discretion of the determining authority and is entirely on your specific

the tax body, when they meet the obligation and burden of claims concerning their

tax obligations, to what extent will be touched to his property

realm and in what amount will be implemented on the basis of the law provided for income

the public budget. Thus it cannot identify with the statement referred to in

the proposal that, in the case under examination, in extreme cases, can lead to

undue intervention in the financial circumstances of the individual.



57. On this point, it is for the legislature to recall that in the editing

the penalties included a relatively large number of moderačních elements

to ensure the adequacy of penalties and pursue a goal of easing the sanctions in

cases where specific misconduct has a smaller degree of harmfulness, as

to them, the Government pointed out in its comments. This is in particular the

"automoderační" mechanism in the percentage amount of the fine setting;

the fact that the fine does not arise if the delay with the filing of the tax

the claim was not longer than 5 working days; Edit the "capping" above

the fine; a stricter regime for the tax claim, which was lodged;

the lower limit of the fine from 200 CZK; reduction of the amount of the fine in half for

the fulfilment of the legal conditions and the special rule for the fine for delayed

the claim for the tax on the income from dependent activities.



58. To complement can be noted that the principles applied in the plenary of the award

SP. zn. PL. ÚS 12/03 is based and the find of 9 June. September 2014 pl. TC 52/13

(219/2014 Sb.), in the matter of clearly disproportionate to the amount of the lower limit of the fine

for the administrative offence under section 140, paragraph. 1 (a). (c)) and e) of Act No. 435/2004

Coll., on employment, which the Constitutional Court annulled section, paragraph 140. 4 (b). (f))

the law on employment, in the words "at least in the amount of Czk 250 000".



59. On the contrary, for the winding-up, the Constitutional Court did not consider the minimum penalty in the

the amount of Czk 25 000 under the provincial offences Act and a proposal for its abolition

rejected in the award of 25 June. October 2011 SP. zn. PL. ÚS 14/09 (22/2012

SB.) in the matter of fines and other penalties for violating the rules of the road

(the criminal and administrative punishment). The Constitutional Court ruled that the

the contested Law requirement of differentiation of sanctions that respects and

assessment of the lower limit of the penalty rate is fundamentally the things the legislature.

He said that the constitutional provisions do not contain concerning the question of the lower

the boundaries of the penalty rates of any directive, but must be followed by a command

proportionality between the type and the amount of the severity of the tort conduct

penalty rates.



60. The question of fines and tax obligations, the Constitutional Court already dealt with in

the award cited the refusal sp.. PL. ÚS 3/13 (to a fine in the amount of 10% of the

of the ensuring taxes in arrears of excise duty). It has rejected a proposal from the

the District Court for revocation of section 43 of the Act No. 353/2003 Coll., on consumer

taxes, arguing that the law provided for the possibility of the payment of the tax office

of the ensuring of the tax as an alternative method of execution, for the case that the tax

the body properly and in a timely manner has not settled the consumption tax does not lead to conflict with the article. 1

and the article. 11 of the Charter. The Constitutional Court took into consideration the fact that the standard requirement

differentiation of sanctions no longer respects the fact that fine is dependent on the

the amount of the arrears of excise duty. Reflecting the volume of

means the moving in trade with mineral oil, alcohol, beer,

wine and intermediate products, and tobacco products, which corresponds to the amount of the tax

that is, the tax body shall be obliged to admit and pay, and then i

amount of tax from which is derived the fine. The Constitutional Court

He concluded that such a fine cannot be for the tax bodies, moving

in the area of business with strictly regulated commodities, the winding-up.



61. The Constitutional Court has made the comparison with the discovery of 10 June. March 2004 sp.

Zn. PL. ÚS 12/03, on which the appellant pointed out. This finding of a constitutional

the Court stated that the fine imposed in the construction management may, in certain

circumstances constitute an intervention into the basic law according to the article. 11. 1

Of the Charter, and if it will interfere with an individual's financial circumstances

with considerable intensity. The anchoring of the minimum amount of the fine in the law on

construction management leads to the limitation of the administrative authority to take into account

the particular circumstances of the case, the person of the delinquent and to its conditions and

does not always apply the appropriate intervention, and may have in relation to the

the bodies, which is sanctions in the form of fines imposed, sometimes the character

the winding-up.



62. The starting point for him were the conclusions set out in the award of 13 April. August

2002, SP. zn. PL. ÚS 3/02 in the matter of the determination of the minimum amount of the fine to the person

using the construction without approval of the decision or in conflict with him, with the

regard to the material and personal circumstances delinquent. The Constitutional Court in the award

of 13 June. August 2002, SP. zn. PL. ÚS 3/02 acknowledged that the anchoring of the minimum

the amount of the fines to act essentially tracks the legitimate objective, as far


more pronounced way than would be possible only in the determination of the top

rates, allows you to distinguish the severity of hazards or those which types

infringements. This step is also a side-effect is that

limits the scope for administrative discretion, which has had its positive consequences

for example. that, to some extent, the amount of the penalties imposed, unites

where appropriate, limits the scope for arbitrary or corruption affected negotiations

of the administrative authorities. This may seem as a means of protection against

any discrimination, on the other hand, however, a greater or lesser degree,

paušalizuje the severity of the infringement, which leads to restrictions

the possibility of the administrative authority to take into account the particular circumstances of the case,

the person of the delinquent and to its conditions. Yet such fine may

certain circumstances constitute intervention in the basic law, in particular by

article. 11. 1 of the Charter, and if it extends to the property consequences of

individuals with considerable intensity. Therefore, the Constitutional Court assessed the purpose of intervention

in relation to the resources used, with a yardstick for the assessment of the

was the principle of proportionality. The escalation of the repression posed by increasing

the upper limit of the penalty may fill in the opinion of the Constitutional Court

the intended target, and given sufficient space to take account of

the circumstances of a particular case allows you to meet even the condition of proportionality

the intervention. The setting and increase the lower limit the sanctions to minimize

This space then naturally does not always apply the appropriate intervention,

because you may have in relation to the bodies, which is in the form of fines, penalties,

stored, sometimes the character of the winding-up.



63. the same considerations against the Constitutional Court and in the award of 10 June. March

2004, SP. zn. PL. ÚS 12/03, in which he stated that the fine for failure to

urgent security work at least 200 000 Czk may be in

many individual cases as well as winding-up fine 500 USD

for offenses by the legislature rated as "severe", as defined in section 106

paragraph. 3 the building Act.



64. At the level of the factual difference is the current proposal with the proposal, on which the

responded find SP. zn. PL. ÚS 12/03, lies in the fact that in the earlier

finding the situation of Insolvency Fund children and youth, which was

in liquidation, to meet the investment action, has already triggered an extremely adverse

the weather. In the present case, it is a joint-stock company, which, according to

General Directorate for the city of Prague within the time limit specified by the Act on

value added tax and in accordance with the tax code did not return to the

value added tax for February, March and April 2011, and even

through the tax portal, without subsequent confirmation (projector

It states that the applicant failed to confirm in time only lodged a tax return

writing through the postal service.)



65. In the legal plane, you can see a difference in that the construction Act

setting a one-time fine for the implementation or the absence of a

the Act, which is not necessarily bound in time (not maintaining the building, use of

construction without notice, etc.). Sense and purpose of the fines referred to in

the tax code is the penalty for failure to comply with time limits, which is increasing with time

the passage from the law implied time limits and, therefore, to a certain extent reflects the

the intensity of the breach of the obligation. The Constitutional Court has considered that the system of penalties

stored directly from the law in the case under examination, on the contrary, contributes to the

fair setting of this system.



66. The Constitutional Court notes that the applicant voucher to find SP. zn.

PL. ÚS 12/03 is not completely tight and the conclusions drawn in this award

You cannot, without further apply to the case under consideration. For comparable cannot be

consider, in particular, the basis of the situation, when the construction authority imposed a fine in

construction management for the failure of the urgent security work and

the lower boundary of the fine could the administrative authority determined by the specific

conditions and the financial circumstances of the person. In the case under consideration is fine for

delayed claims taxes imposed in connection with the failure of the proper

filing a tax return, and the amount is derived from the amount paid

the tax increases at a time depending on the length of the delay with making the tax

claims and has a minimum and maximum limit for the case that the

the tax claim is not filed at all, even after the deadline. Fine

thus arises directly from the law (ex lege) in the specified amount derived from

tax, tax deduction or tax losses, which is the subject

delayed or nepodaného the tax claim.



67. The Constitutional Court was not able to identify or claim of the appellant, that was

breach of the principle of equality of tax entities, and because of that, the penalty for

delayed claims tax is pegged to the amount of tax that is the subject of

the allegation. It must be pointed out that "not all unequal treatment of different

entities can qualify as a violation of the principle of equality, such as

unlawful discrimination in comparison with one of the bodies bodies

other. To ensure that the violation has occurred, several conditions must be met:

the different entities that are in the same or comparable

the situation is treated differently, without an objective and

reasonable grounds for followed a different approach "[from 10 June.

July 2014, SP. zn. PL. ÚS 31/13 (162/2014 Sb.), paragraph 44]. Therefore, on the

This point, the Constitutional Court refers to the content of the representation of the Government, according to which

equal and non-discriminatory access to the tax bodies as fine

emerging ex lege right allows you to eliminate arbitrariness in decision-making

the activities of the tax administrator shall be a fine of predictable and quantifiable in advance

and avoids possible corruption to the relative element equality

tax entities.



68. On the basis of these findings, the Constitutional Court has in the things

that the contested provision is compatible with the principles of the rule of law in the

the meaning of the article. 1 of the Constitution and does not present a conflict with the article. 1 and article. 11. 1 and 5

Of the Charter and with the article. 1 of the Protocol to the Convention.



69. The Constitutional Court therefore concludes that the reasons were found to comply with the

the proposal to repeal the provisions of section 250 of the tax code, and therefore the proposal as

nedůvodný under the provisions of section 70 paragraph. 2 of the law on the Constitutional Court rejected.



The President of the Constitutional Court



JUDr. Rychetský v.r.