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.