A Declaration Of Unconstitutionality Of § 8, 9, 10 And 15 Of Law No. 357/1992 Coll.

Original Language Title: o vyslovení protiústavnosti § 8, 9, 10 a 15 zákona č. 357/1992 Sb.

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=68858&nr=181~2F2009~20Sb.&ft=txt

181/2009 Coll.

Constitutional Court
On behalf of the Republic

The Constitutional Court ruled on 21 April Plenum, composed of Stanislav Balik, Frantisek Duchon
, Vlasta Formánková, Vojen Güttler, Pavel Holländer,
Ivana Janu, Vladimir Kurka, Dagmar Lastovecká, Jiri Mucha, Jan Musil,
George Nykodým, Pavel Rychetsky, Miloslav Vyborny, Elizabeth Wagner
(rapporteur) and Michael Židlická on the proposal of the Supreme administrative court
filed under Art. 95 para. 2 of the Constitution of the Czech Republic to declare the unconstitutionality of
§ 8, § 9, § 10 and § 15 of Act no. 357/1992
Coll., on inheritance tax, gift tax and real estate transfer tax in
version before amendment by Act no. 420/2003 Coll ., attended
Chamber of Deputies of the Parliament of the Czech Republic and the Senate of the Czech Republic as


I. A petition to declare the unconstitutionality of the provisions of § 8 par. 1 point. a)
§ 9 paragraph. 1 point. a) § 10 point. a) first sentence and § 15 of Act no.
357/1992 Coll., on Inheritance Tax, Gift Tax and Real Estate Transfer
, in the version before the amendment by Act no. 420/2003 Coll
. is rejected.

II. In the rest of the proposal is rejected.

Recap draft

First Constitutional Court of 9. 10. 2008 received a petition
Supreme Administrative Court (the "SAC") to declare the unconstitutionality
provisions of § 8, § 9, § 10 and § 15 of Act no. 357/1992 Coll. , tax
inheritance tax, gift tax and real estate transfer tax, as amended
before amendment by Act no. 420/2003 Coll.

Second The petitioner did so after in connection with its decision
activities in accordance with Art. 95 para. 2 of the Constitution of the Czech Republic (hereinafter
"Constitution") and ust. § 48 para. 1 point. a) Act no. 150/2002 Coll., the
Administrative Procedure Code, concluded that § 8, § 9, § 10 and 15 of Act No.
. 357/1992 Coll., On Inheritance Tax, Gift Tax and Real Estate Transfer
, in the version before the amendment by Act no. 420/2003 Coll
., Are in conflict with Art. 3. 1 Article . paragraph 4. 4, Art. 11 paragraph. 1, 4, 5
Charter of fundamental rights and freedoms (the "Charter").

Third In that case, sp. Ref. 2 Afs 178/2006, NSS decided on the appeal of the complainant's request
Ing. MP against the judgment of the Regional Court in Brno
dated 26. 5. 2006 ref. No. 29 Ca 129 / 2004-22, in which he stated that ust. §
15 of Act no. 357/1992 Coll. on inheritance tax, gift tax and real estate transfer
contravenes the constitutionally guaranteed right of ownership,
enshrined in Art. 11 of the Charter of fundamental rights and freedoms as well as in Art. 1
Additional Protocol to Art. 1 of the Convention for the protection of human rights and fundamental freedoms
. Judgment of the Regional Court in Brno
dismissing its action against the decision of the Financial Directorate in Brno dated 2. 3. 2004
no. j. 8069/03 / FR 140, dismissing the applicant's appeal against the tax assessment
Revenue Authority Brno III of 8. 8. 2003 no.
j. 144773/03/290961/1675. This decision was the complainant charged
real estate transfer tax in the amount of CZK 3120, as the sale of real estate in the
. Ú. Soběšice P. spouses and the company NDL, Ltd., and
company DPN, sro, husbands B ..

Fourth NSS suspended proceedings in the matter and submitted to the Constitutional Court to
declaration of unconstitutionality of the contested provisions, because they think
itself real estate transfer tax is unconstitutional. In his statement of claim, the
NSS seeks only a declaration of unconstitutionality of the relevant statutory provisions
rather than their abolition, since the amendment made by Act no. 420/2003 Coll
. All those provisions were changed and the so-called.
specific review of norms is only NSS locus standi to bring
petition to declare the unconstitutionality of the statutory provisions and the
this text, which is obliged to apply. In the opinion of the Supreme Administrative Court (NSS here
referred to the judgment of the SAC 13. 3. 2008, Ref. No.. 5 Afs 7/2005 in:
no. 1575/2008 Sb. NSS) in proceedings which are catching the administrative courts, has
interpretive statement of the court (declaration of unconstitutionality of the provisions
already derogated, if necessary. revised, the legal standards)
same significance and meaning as the verdict repealing the legislation. Regarding
competence of the Constitutional Court to pronounce the unconstitutionality already derogated, or
. amended, legal norms, NSS refers to settled case
Constitutional Court last year [especially Pl. US 38/06 of 6
second 2007 (N 23/44 SbNU 279; 84/2007 Coll. ^ *), In which it has been argued,

That the Constitutional Court under Art. 95 para. 2 of the Constitution respective merits
review the constitutionality of the contested provision, even though it was already annulled
(changed), on condition that the addressee of the asserted grounds of unconstitutionality
it is a public authority, and not a private law].

Fifth SAC also asked the question of the possibility of the Constitutional Court to review the constitutionality
substantive tax law, since the determination of certain tax
be seen in the context of the budgetary policy of the state and is primarily a matter of political representation
what makes subject to tax and what form
and the amount of tax determined (it is a typical "political question

"). Even by the Constitutional Court judgment Pl. US 33/01 of 12. 3. 2002 (N 28/25
SbNU 215; 145/2002 Coll.) "Is the concept of tax policy to the state
that determines what the tax burden on the taxpayer's particular tax. "About
designation of certain benchmarks, the Constitutional court tried
recently in its judgment. Nos. Pl. US 24/07 of 31. 1. 2008
promulgated under no. 88/2008 Coll. [But see also Judgment sp. Nos. Pl. US 3/02 from 13
8. 2002 (N 105/27 SbNU 177; 405/2002 Coll., And judgment No. Pl. US
12/03 of 10. 3. 2004 ( N 37/32 SbNU 367; 300/2004 Coll.)]
by which the legislature has "broad discretion to decide on the subject, scope and extent
taxes, fees and monetary sanctions" and for his decision carries || | especially political responsibility. Although the tax is a compulsory public
financial performance of the state, and therefore interferes with the property rights
compulsory subject, does not without conditions affected the constitutional order
protected proprietary position. In this case law, the Constitutional court || | further specified the content of the constitutional review, which includes an assessment of
terms of compliance with the standards flowing from the constitutional principle of equality, both non
, and accessory, and formulated the concept of the throttle
(throttling) effect. the finding, published in the no. 18/2008 Coll., then
characterized by reticence court in matters of policy, though
petitioner referred to the means of political competition. Based on the analysis of the case
NSS concludes that it is unconstitutional, it is possible to mark
such a tax, which would (1) unreasonably violated the principle of equality and / or
(2) had a confiscatory impact. NSS believes, however, that these need
criteria supplemented by a third criterion, (3) the legitimacy
imposed tax obligations. Unconstitutional by the Supreme Administrative Court must also mark
such a tax, which although does not have a discriminatory effect or throttling,
however, not supported by any legitimate and rational reason. Constitutional
is just such a tax, which also stand the test of legitimacy and rationality.
Legitimacy of taxes is not exhausted by the manner of its adoption and the reason
consisting in filling the state budget. NSS
in this context refers to the rationality test, which is a normal part of the case
Constitutional Court recently [judgment file. Nos. Pl. US 61/04 of 5
10th 2006 (N 181/43 SbNU 57; 16/2007 Coll.) And finding sp. Ref. Pl.ÚS
83/06 dated March 12, 2008, promulgated under no. 116/2008 Coll.].

6th In another part of his proposal deals with NSS general function and purpose
taxes. With reference to the scientific literature NSS provides three primary functions
taxes - Allocation (this applies when the market shows
inefficiency in resource allocation), redistribution (which is important because
that people do not consider the distribution of income and wealth to be fair)
and stabilization (its purpose is to mitigate the effects of cyclical fluctuations in the economy
). On the basis of quotations from the works of philosopher Jan Sokol Adam Smith
NSS summarizes the principle of fair taxation in several points, and it
equality, certainty, convenience for taxpayers and the least possible burden
for the population in proportion to the revenue which plotted sovereign (state).
Further analyzes NSS further define the duties consisting in distinguishing their (1)
primary (ie. The fiscal, where the foreground is the interest on the tax return)
and (2) Regulatory (in the foreground is the purpose of socially or economically
political) function. Following these considerations NSS states that the constitutional
can be considered only a tax that is legitimate and rational, ie
. the determination of this tax is not contrary to the basic rules of functioning
state power in a democratic rule of law and the principle of proportionality and the principle
prohibition of abuse of rights.

7th NSS briefly discusses the importance of real estate transfer tax in

Public finances. According to the Ministry of Finance
we see a gradual increase in the collection of this tax, whose total amount is less than
one percent of total government tax revenues.
Tax collection efficiency, then in 2004 reached a total of 2.85%, which means that direct
administrative costs incurred for this charge
represented 2.85% of total receipts. Although it is when compared with other
property taxes on the value relatively high, other taxes
efficiency of selection varies significantly below 2%. As a whole, the importance of tax
property transfer in terms of the total budgetary revenues
quite marginal. Its selection is efficient, though not to the extent as is the case for other groups

8th The core of the argument is the NSS test the constitutionality of the transfer tax
property by NSS considers unconstitutional as a whole. NSS has performed
(1) test, which found out confiscatory ( "choking")
nature of this tax. According to the NSS tax in question does not throttle effect, in that its amount
not unreasonably high. This tax would be unconstitutional by the Supreme Administrative Court only
when the disposition of property as an integral part of the ownership rights
impossible, or at least limited.
Unconstitutional tax on real estate transfer NSS sees in her statutory rate because
not convinced that it would be disproportionately high (throttle, confiscatory

9th According to the NSS, however, the tax in question can not stand (2) carried
minimal test of rationality (

rational basis test) because the solution chosen does not lead to the aim pursued.
Grounds for illegitimacy and neracionalitu NSS sees several ways.
Mainly goes by the NSS of tax is discriminatory because it is this type of property taxes
loaded with only one of the cases of transfer of assets. The reason why the legislature chose to taxation
convert just this one species of property, in case
estate transfer tax NSS lacks. In terms of legal
state legislature can not act arbitrarily, but must get
activity strong and rational reason.

10th If each have their tax function, so in case of transfer tax
property shall be excluded both (ie. Primary and regulatory) function.
The regulatory function is eliminated by how high the transfer tax
real estate in the market environment is causing the price of these properties
increase by the amount of the tax. The need for housing is yet incommensurate with
need to own common things personal consumption. State-induced increase
property prices leads to a reduction of their market and their difficult
affordability. Real estate transfer tax does not organize social
balance even greater degree of fairness, but totally unjustified and
unduly restricts the freedom of residents, because it makes
restrictions on the mobility of labor, business restrictions, worsening social situation of the population
etc. Receipts from this tax are completely devalued
described above, an effect that causes this tax.
Although no precise data, the amount of revenue earned surely below actual expenditures
undesirable externalities that taxes directly or indirectly caused.
Tax on real estate transfer also can have a redistributive function whose essence
lies in the establishment of social peace, because this tax is not burdened
only "luxury" property. This tax burden on an equal basis
all social groups. In this context, quite irrationally
acts subsequent government interventions such. State aid
savings, for which the state paid in 2006
more than double that in the same year chose to transfer tax || | Realty. It is thus a paradox, because the state on one hand
massively supports satisfy the housing needs and on the other hand
simultaneously satisfying the needs of the existence of that tax makes it difficult. Also
of state fiscal policy can be derived rational and legitimate reason
for the existence of this tax. Relevant reason is not even that
the nature of the financial income of the state is given an easy way to control
property transfer and enforcement of payment of the tax. A similar system
records also applies to other things, the transfer tax is not subject
and subject to the rule only obligation fee
[whose purpose is different, because the charges are stored in such a way that
At least partially cover the costs associated with activities

Caused by the activities of these individuals (sic - pozn.red.)]. In the case
real estate transfer tax is imposed on both the state administrative tasks in these cases
tanned (the fee for registration in the Land Register), as well
itself this transfer, according to the value of the property transferred
. NSS also points out that the real estate transfer tax is in our
new tax system, which was introduced as a substitute
notarial fee from real estate transfer tax with effect from 1st 1st 1993.
There is no reason why the state he had to undergo this form of transfer of assets at the same time as
fee obligations, and tax obligations.

11th Discriminatory and irrational nature of that tax gets by NSS
another dimension in the context of the overall reality of the housing market. On the housing market
exist except privately owned apartments considerable amount of bytes
cooperative, where the transfer of membership rights to the apartment is not subject to any tax
. It's so convenient to be the only member of the team
than the owner of the apartment, which represents a significant distortion of the housing market.
The tax in question must also be seen in the context of the entire tax system. Because
according ust. § 4. b) Act no. 586/1992 Coll., on income taxes, are exempt
among others. revenues from sales of real estate, if the period
between their acquisition and sale for five years, and in the context of tax
from real estate transfer this adjustment leads to the fact that if the property is sold
within 5 years from its acquisition, subject to the sales tax, not only
property transfer, but also by the income tax, whose base consists | || difference between the two prices. It is such a double taxation of the same income,
which in the context of the problem leads to unconstitutional consequences.
In the context of the whole tax system should not forget also that taxed
is itself owned real estate. Unconstitutional intensity reaches
tax concatenation based on the fact that a taxpayer receives certain income
which of course subject to income tax for such income
buys the property, which is subject to property tax, and knows
that the subsequent sale of this property is subject to real estate transfer tax, or
. Again income tax.

12th Of all the reasons mentioned above, the SAC concludes that
unconstitutionality of the real estate transfer tax, which is nothing more than
tax changes one form of property ownership in the form of another, ie.
Not a tax increase in value and this tax is completely beyond even
all the standard features that taxes usually have. It is a tax
antisocial, demotivating, unequal terms of ownership to various kinds
property, limiting the flexibility of the real estate market and as a result
brakes and labor market flexibility, and its consequences negatively affecting
and in family life. For the aforementioned reasons NSS
proposes that the Constitutional Court finding stated that ust. § 8, § 9, § 10 and §
15 of Act no. 357/1992 Coll., On Inheritance Tax, Gift Tax
transfer of real estate in the version before the amendment by Act no. 420/2003 Coll
. amending Act no. 357/1992 Coll., on inheritance tax,
gift taxes and real estate transfer , as amended
regulations and related laws were in conflict with Art. 3, paragraph. 1, Art. 4
paragraph. 4, Art. 11 paragraph. 1, 4 and 5 of the Charter of Fundamental Rights and Freedoms.

Observations of the parties

II.A. Chamber of Deputies of the Parliament of the Czech Republic

13th According ust. § 42 para. 4 and ust. § 69 par. 1 of Act no. 182/1993 Coll.
On the Constitutional Court, as amended (hereinafter the "Law on the Constitutional Court
") Constitutional court sent the petition to the Chamber of Deputies
. In its statement dated 10. 11. 2008
Speaker of the Parliament of the Czech Republic Ing. Miloslav Vlcek
recapitulates the process of adoption of Act no. 357/1992 Coll., On inheritance tax, gift tax and
Real Estate Transfer Tax, in the version before the amendment by Act No.
. 420/2003 Coll., Amending Act no. 357/1992 Coll. It recalls that
bill was created as part of the agreed principles and
tax reform, according to which these taxes should replace notary fees of
inheritance, donation and property transfer.

IIB. Czech Senate

14th According ust. § 42 para. 4 and ust. § 69 par. 1 of the Constitutional Court
Constitutional Court sent the proposal to the Senate of the Parliament of the Czech Republic. In
statement dated 12. 11. 2008 by its chairman, MD. Premysl Sobotka

Stated that the petitioner stopped to consider the fact as it was filled
Art. 11 paragraph. 1 of the Charter of Fundamental Rights and Freedoms, setting out, inter alia, that
property has the same legal content, but also the defense if
Constitutional Court decided in terms of the statement of claim and effectively created a situation that
the provisions governing real estate transfer tax in the version "
before amendment by Act no. 420/2003 Coll."
was declared unconstitutional, while the same has been declared the situation "after
amendment" made by this Act . Furthermore, the Senate pointed out that the statement
for things that would be based on direct discussion and adoption of the provisions in question
in the original wording of the Act no. 357/1992 Coll., Can not provide
because it started operating only in 1996 .

15th The Constitutional Court has addressed the participants with a request to be notified whether
agree to waive a hearing. Participants voiced by the provision.
§ 44 par. 2 Act on the Constitutional Court approval.


The opinion of the Ministry of Finance

16th The Constitutional Court pursuant to the provisions. § 48 para. 2 of the Constitutional Court also urged
Ministry of Finance to join the petition declared.
Minister of Finance Ing. Miroslav Kalousek, in his letter dated 22. 10. 2008 ref. No.
05/99 838 / 2008-261 disagreed with the opinion of the NSS unconstitutional
real estate transfer tax.

17th In the opinion of the Ministry of Finance's real estate transfer tax
historic tax forms and complementary whole tax system.
The Ministry of Finance points out that taxation or charging for transfers or transitions
ownership rights to property should always unequal character, thus
tax when immediately after paying taxes or not a taxpayer
not receiving any service or
other consideration from the part of beneficiaries, trustees of public budgets. It is a duty, for which can clearly demonstrate
subject of taxation because it is levied on the transfer for consideration
or transfer of ownership of real estate. Does the nature of the one-off tax
proprietary. The amount of this tax depends on the price (value)
transferred property or property transferred. Currently, the
state budget revenue from this tax around 9 billion. CZK. Taxation for consideration
transfer or assignment of property rights to real property is exercised
in all European Union countries except Slovakia.

18th Why is burdened by taxes on the transfer of just only one kind of property
Ministry explains the differences immovable things from other things
its character, value and economic importance. Compared things
movable property represent significant value. Each property is well saved
capital, because it brings revenue.
Is irreplaceable economic significance of land. Owners of houses or flats for their own housing
have income from ownership (ie.
Imputed rent) unlike people who live in rental housing. To be used
property, they can not exist separately from the infrastructure. On
acquisition of state infrastructure spending from the state budget of the Czech Republic
considerable financial resources. Assets must be safeguarded also
from external dangers, build police apparatus and the like.
Finance and emerging needs. Different types of assets also require different
protection, leading to the differential taxation of movable and immovable
. The property owner has an advantageous position
economic advantages. Property taxes are very important stabilizing taxes, so-called.
Economically neutral, which will lead the their main priority because
affect economic decisions and behavior of subjects significantly less than
other kinds of taxes.

19th The Finance Ministry also expressed its functions which transfer tax
property performs. Allocative function of this tax can be understood as part
financial relations arising from income generation, pumping a portion of income
legal entities and individuals, and their subsequent deployment
where their use is most effective, which is
through the state budget.
Funds raised from tax revenues are allocated primarily to the state budget, where
intended for providing public goods.
Redistribution function is the redistribution of property owners towards nevlastníkům, therefore
from the wealthier to the less well-off. It also constitutes a safeguard against tax

Evasion. Real estate transfer tax also fulfills a regulatory function, because
from the value of the transferred property owned and is derived
amount of the tax burden on individual taxpayers, thus reducing the disparities in income
individuals. Assets are in fact in the company in terms of ownership
distributed unevenly. Stabilizing function does not meet the tax
estate transfer automatically, but it can implement due to political representation
decision on adjustments to rates or exemptions
with regard to cyclical fluctuations in the economy.

20th Regarding the relation between the amount of real estate transfer tax and the amount
real estate prices, the ministry pointed to the development of housing prices since 2001
until 2007, from which it follows that after the reduction in the tax rate from 5% to 3% | || there anyway to increase the price increase in 2004. Supply and demand
flats is primarily influenced by facts like.
rents apartments, government support in the housing sector (eg. construction posts
savings) demographic changes, the purchasing power of potential
sellers and especially the credit policy of banks.

21st In the opinion of the Ministry of Finance between taxes and real estate transfer
mobility of the workforce and limiting business relationship certainly exists, but
this effect is considering minimum amount of tax.
Tax on the transfer of real estate property tax, as it tends to complement
redistributive effect of the tax system. Due to the complementary nature of this tax,
extensive statutory exemption and especially due to its low rate
Ministry has specific analysis focused on relations with other
economic categories, however, during the application of the law were recorded
any negative manifestations of the impact of this tax on the market
real estate, labor mobility and the impact of real estate transfer tax
restrictions on the business or its impact on the social situation deteriorated
population. Ministry refers to the research work
Research Institute for Labour and Social Affairs called status and structure of employment
and trends in demand for labor - Comparative compared
state structures and employment trends of the Czech Republic and the EU in 2004, according to the
influences substantially limiting the mobility of the workforce belongs to malfunction
real estate market (price of real estate are estimated at approx
five times the average annual employment income), transportation expenses for
households and socio-psychological factors such reluctance migration .
Important influence on labor mobility is the structure of the group of people aged
economic activity; eg. for persons under 30 years is due to the increased mobility
rather the willingness to commuting and migration for work, but not
unrelated to the transfer of real estate. The Ministry also points out
fact that the potential negative impact of real estate transfer tax on development
business environment in the Czech Republic is eg. In aggregate
expert study on the Czech real estate market Trend Report 2008 published by the Association for
development of real estate market ever mentioned.

22nd The Finance Ministry also expressed due to the existence
administrative fee for registration in the Land Registry, which selects for operation
administrative body - the land registry. The amount of the fee is CZK 500.
Subject to charge the costs associated with administrative proceedings
cadastral office when deciding on investment in real estate.
The cost of registration fees are paid for the service provided.
Reason that apart from real estate transfer tax is charged and deposit into
cadastre, is that the fee is
cash equivalents for the services provided by the public sector, while the real estate transfer tax is a payment
non-equivalent, which is not provided for direct
value and is one of the basic budgetary revenues, which is
redistributed through the state budget and used to cover
state budget expenditures.

23rd According to the Ministry of Finance of the legislation is clear and undoubtedly
difference between a property right to the apartment and the rights and obligations of members
team. Members of the team are holders of rights and obligations
associated with membership in a housing cooperative. Based on an agreement on transfer
membership rights and obligations of the transfer of the rights and obligations that
are associated with membership in a housing cooperative. Agreement on transfer of rights and obligations
no automatic right of entry of a new member to the rights and

Obligations under the lease contracts concluded prior
member of the team. The Ministry of Finance also points out that transfers ownership of
flats owned by housing cooperatives to cooperatives owned by members
are exempt from real estate transfer tax. But if the team member
comes into the apartment from a cooperative to personal property or another person from
developer of the property, and then be sold
paid transfer of ownership is subject to real estate transfer tax and not from this tax

24th Regarding the fact that the sale of real estate may be in addition to the tax on real estate transfer
taxed and income from real estate taxes on income
Ministry states that this tax is only
unless this income according to the Law on income tax exempt from tax
. Income taxation of real estate sales taxes on income has clearly
protispekulační character. If the property owner
less five, respectively. two years in a house or apartment
sell this property at a higher price than the cost of taxing the income tax
only difference between the higher price and selling lower-priced acquisition,
unless under the legal provision from income tax
acquitted. For individuals and legal entities with accounting
is that if you sell the property, the profit is income
increasing revenues, ie. The price at which the property is sold and reduced
carrying value (if depreciated assets) or
purchase price (if it is a property that is not depreciated).
Result of management as well as the tax base is reduced while also
real estate transfer tax.

25th The Finance Ministry also expressed to reduce the tax from 5% to 3%
which was adopted by Act no. 420/2003 Coll.
This reduction was a political decision, some political parties have
reduction in tax rates in its election program.

26th The Ministry of Finance also believes that ensuring the exclusion
throttling (choke) the effect of that tax is to ensure a low tax rate
. The Act lays down a number of exemptions (whether in
housing, business operations, support for people doing business in agriculture
, dealing with the consequences of natural disasters and the difficult financial situation
taxpayer under the Act on Administration of Taxes) and so we can not talk about
significant tax burden.


The opinion of the Ministry for Regional Development

27th The Constitutional Court pursuant to the provisions. § 48 para. 2 of the Constitutional Court also urged
Ministry for Regional Development to join the petition declared.
First Deputy Prime Minister and Minister for Regional Development Jiří Čunek
in a letter dated 17. 12. 2008 ref. No. 38943 / 2008-77 opined that
affect real estate transfer tax on labor mobility strength and market
apartments rather regarded as marginal and insignificant.

28th The Ministry for Regional Development, commented on the link between taxes
property transfer and mobility of labor.
Referred to the findings of a research study Sociological Institute of the Czech Academy of Sciences entitled "Analysis
housing policy measures designed to promote labor flexibility in the Czech Republic".
The conclusions of this study indicates that the effect of the abolition of tax on transfer of real estate
not be safely estimated.
Owners housing is held in their existing housing rather different reasons than
payment of real estate transfer tax and the abolition of taxes should be further consequences for
functioning of the housing market, which would not be, in terms of State | || rated as positive (greater price volatility, market volatility).

29th In the opinion of the Ministry for Regional Development
not clearly specify how it affects the real estate transfer housing market,
if it takes into account the existence of dwellings owned by
law on ownership and existence of cooperative apartments. Higher prices of apartments in
owned flats compared to the cooperative is mainly affected by the different
management of these homes, because homes owned by the owner may for example.
His own discretion, lease, encumber lien or encumbrance.

Wording of the contested provisions

30th The petitioner seeks the declaration of unconstitutionality of the contested provisions of Section
third (ust. § 8 ust. § 9 and ust. § 10) and ust. § 15
Act no. 357/1992 Coll., On Inheritance Tax gift and transfer tax

Real estate in the version before the amendment by Act no. 420/2003 Coll
. Individual contested provision reads:

§ 8 of Act no. 357/1992 Coll., On inheritance tax, gift tax and
Real Estate Transfer Tax, in the version before the amendment by Act No.
. 420/2003 Coll.
Paragraph One

Taxpayer of the real estate transfer

A) the transferor (seller); the transferee is the guarantor in this case,

B) the transferee, in the case of acquisition of property in enforcement or execution
under a special law, foreclosure, bankruptcy,
settlement, tolerating or by public auction or on the acquisition of property on dissolution of a legal
entity without liquidation or division
liquidation value on dissolution of a legal person with liquidation,

C) the beneficiary of the easement or other performance similar
substantive proof,

D) the transferor and the transferee, in the case of exchange of real estate; transferor and transferee
in this case are required to pay the tax jointly and severally to
The second paragraph

Case of transfer or transition of ownership to the property of marital spouses
ownership or marital property
spouses, considered each of the spouses as a separate taxpayer and
their shares for the same, if not agreed shares
fixed or otherwise. In the case of mutual co-owners, each joint owner
separate taxpayer and pay tax according to the size of its stake.

Provisions of § 9 of the Act no. 357/1992 Coll., On inheritance tax, gift tax and
Real Estate Transfer Tax, in the version before the amendment by Act No.
. 420/2003 Coll.
Paragraph One

Subject real estate transfer tax is

A) the transfer or assignment of property rights, including
settlement of co-ownership,

B) Gratuitous establishment of an easement or other performance similar
easement on the acquisition of real estate by donation.
The second paragraph

Subject property transfer tax is also paid transfer
property ownership in cases where there is subsequently
withdraw from the contract and the contract is hereby canceled from the beginning.

Third paragraph

Exchanged when a property is considered their mutual transfers
for a transfer. Tax will be collected from the transfer of the property from whose
transfer tax is higher.
Paragraph fourth

The provisions of § 3 para. 2 shall apply mutatis mutandis.

§ 10 of Act no. 357/1992 Coll., On inheritance tax, gift tax and
Real Estate Transfer Tax, in the version before the amendment by Act No.
. 420/2003 Coll.

Basis for real estate transfer tax is

A) the price determined by a special regulation valid on the date of acquisition
real estate, even in the case if the property price negotiated agreements
lower than the price determined; the price difference is not subject to gift tax. However, if
agreed price is higher than the price determined, the tax base is the price agreed,

B) the price (§ 16) free of charge to set up an easement or other performance
similar easement

C) in the case of prescription price determined according to special regulations in writing
day certificates of withstanding notarial or legal authority
court decision on adverse possession,

D) the price determined by a special regulation valid on the date of acquisition
property under a contract for financial lease with subsequent purchase of the leased

E) in the case of auctioning property in enforcement, in execution
or by public auction tax base is the price achieved in the auction.
Tax will not assess if the proposer of voluntary auction
person exempt from real estate transfer tax,

F) the price agreed in the case of transfer of the property owned by the municipality.

§ 15 of Act no. 357/1992 Coll., On inheritance tax, gift tax and
Real Estate Transfer Tax, in the version before the amendment by Act No.
. 420/2003 Coll.

The tax is 5% of the tax base.

31st As part of. Specific control standards review is
unconstitutionality of a law or its individual provisions included
solution to the ongoing litigation, and it is within this control standards examined as to the constitutionality
only the legal norm, which really was
has and continues to be applied in further proceedings. It is therefore essential that the Constitutional Court
first posed the question whether the contested provisions were and are to be in the

Management applied. As shown in the attached file, in this case
purchase agreement was signed on 29. 11. 2002 between Mrs P., the company NDL
Ltd., a company DPN, Ltd., on the one hand, and spouses B
. (transferee) on the other hand, transferred ownership of real estate in the
. ú. Soběšice, village Brno, Brno-country district.
Taxpayer, Ing. MP, payment assessment was levied a tax of 3
CZK 120 for the transfer of immovable property in joint ownership spouses
P., While the observed price of the property was higher than the price
agreed, and therefore the tax was levied on prices found. From this information
can conclude that in this case were applied and to be applied to
the cassation complaint proceedings before the SAC only certain provisions of Law no.
357/1992 Coll., On Inheritance Tax, Gift Tax and transfer tax
real estate in the version before the amendment by Act no. 420/2003 Coll
., specifically ust. § 8. 1 point. a) [
taxpayer of the real estate transfer the transferor (seller); acquirer in this case
guarantor] ust. § 9. 1 point. a) (subject
taxes on real estate transfer tax is paid transfer of property rights) ust.
§ 10 point. a) first (base property transfer tax is the price
determined by a special regulation, in force on the date of acquisition of the property, and
even if, when the price of real estate negotiation of agreements
lower than the price determined; the price difference is not subject to gift tax) and ust. § 15 (tax
is 5% of the tax base). In the rest of the mouth. § 8 ust. § 9 and ust. § 10
and ust. § 15 Act no. 357/1992 Coll., On inheritance tax, gift tax and
real estate transfer tax in version before amendment by Act No.
. 420/2003 Coll., On the matter and was not applied or applied
not, why not NSS standing to bring it to raise
petition to declare their unconstitutionality. For this reason, the Constitutional Court
alleged unconstitutionality of the provisions in question could not be addressed and had
in this part reject a proposal by the NSS ust. § 43 para. 1 point. c) in conjunction with
ust. § 43 para. 2 point. b) a petition filed by someone apparently
unauthorized [see. eg. a resolution of the Constitutional Court. Ref. Pl.ÚS
39/2000 of 23 10 2000 (U 39/20 SbNU 353) or finding Pl. US 43/05,
promulgated under no. 62/2009 Coll. and many other decisions].

32nd Another question which the Constitutional Court had to resolve this case
ask a question of the scope of control of the contested norms. Thus, for example.
In paragraph 44. mentioned in the judgment of 22. 1. 2008 sp. Nos. Pl.
US 54/05 (promulgated as no. 265/2008 Coll.) The Constitutional Court stated: "The management of
abstract norm control does not apply the principle to hear, and the Constitutional Court
therefore not bound by the reasoning of the petition, but on the contrary, obliged to investigate
contested provision in terms consistent with other constitutional provisions
than those for which the petitioners are challenging. "This approach
when assessing the proposals discussed in the proceedings to review norms and practice
other constitutional courts; eg. the German Federal Constitutional Court in one of its
findings regarding tax matters said that the management of specific
control standards is limited in verifying the constitutionality of the contested norm
only arguments referring court. It is the subject of proceedings rather standard
which was submitted for review by an authorized petitioner, and it is
checked from different angles. "Such a comprehensive, additional,
constitutional review is in place if and only if the national court considers
tax legislation determining unconstitutional on the grounds that fall
different groups affected in a manner inconsistent with the principle of equality" || | (second Chamber decision dated June 22, 1995, 2 BvL 37/91, point.
point I. C).


Description of the legislative procedure for adopting the contested provisions of the Act

33rd The Constitutional Court is also in accordance with § 68 para. 2 of the
Constitutional Court in proceedings to annul statutes and other laws
obliged to assess whether the contested statute, respectively. its part, was adopted and
issued within the bounds of constitutionally provided jurisdiction and in a constitutionally prescribed manner
. Tax Act no. 357/1992 Coll., On inheritance tax, gift tax and
real estate transfer tax was adopted in 1992, ie before
validity and effectiveness of the Constitution, which is the benchmark for assessing
the constitutionality of the legislative procedure for the adoption of legal

Regulations. However, some of its provisions in a later period
even before Act no. 420/2003 Coll. amended. Ust. § 10 ust.
§ 15 of Act no. 357/1992 Coll., On inheritance tax, gift tax and real estate transfer
, in the version before the amendment by Act no. 420/2003 Coll
. was properly adopted on 2. 12. 1993 15th meeting
Chamber of Deputies. The Constitutional Court therefore finds that
laws containing the contested provisions were adopted and issued within the bounds
constitutionally provided jurisdiction and in a constitutionally prescribed manner.


Assessment of the jurisdiction of the Constitutional Court for consideration of active standing of the petitioner

34th The Constitutional Court had to consider whether it is authorized to discuss the merits
petition, as the petitioner does not seek to repeal
contested provisions, but only a statement of their unconstitutionality.
The fact that the petitioner seeks its verdict only a statement
unconstitutionality of the contested provision is a logical consequence of the fact that
Czech Parliament adopted on November 5, 2003 Act no.
420/2003 Coll. amending Act no. 357/1992 Coll., on inheritance tax,
gift taxes and real estate transfer tax, as amended
regulations and related laws, which were all contested provisions
changed. According to Art. 95 para. 2 of the Constitution happens if the court concludes that a law
which should be applied in resolving a matter is inconsistent with the constitutional order,
submit the matter to the Constitutional Court for consideration. This provision of the Constitution
follows ust. § 64 par. 3 of the Constitutional Court, under which
proposal to repeal a law or its individual provisions is also entitled to file
court in connection with its decision making activity under. 95 para. 2 of the Constitution
. In this case, it is irrelevant that the contested provisions were
Act no. 420/2003 Coll. amended. As it follows from the principle
legal certainty and the protection of citizens confidence in law, respectively.
from the prohibition on retroactivity of laws, must all authorities applying the law
(including courts) apply the legislation in a form in which paid
at a time when the decisive legal facts. Therefore, doubts if
general court about their constitutional conformity, not the system
specialized and concentrated constitutional judiciary decide for himself
but his duty is to apply to the Constitutional Court. In the opinion of the Constitutional Court
includes provisions. Art. 95 para. 2 of the Constitution implicitly
the Constitutional Court is to fulfill its function and the draft general
court to rule on the constitutionality or unconstitutionality of a legal provision which
to be a general court applied, regardless of whether the law
later altered. Breaking the principle of examination exclusively applicable laws and regulations
in favor of preserving constitutionality in this case
completely legitimate, as implied in this manner provides protection
fundamental rights of a party to proceedings before a general court (cf. Finding sp.
Nos. Pl. US 33/2000 of 10. 1. 2001 (N 5/21 SbNU 29; 78/2001 Coll.).
the procedure in the present case undoubtedly apply because
contested and reviewed standards are public in nature, and thus
suzerain encroach on the rights of individuals [cf. Decision Ref. No..
Pl. US 38/06, dated 6 2. 2007 (N 23/44 SbNU 279; 84 / 2007 Sb.)].
the Constitutional court therefore concludes that it is entitled to accept the proposal as a draft eligible
merits consideration and decision.


terms of reference for the assessment draft

VIII. A) Right to property

35th Under Article. 11 paragraph. 1 of the Charter everyone has the right to own property and
ownership right of all owners has the same statutory content and protection.
Necessity of protecting property rights stems from the fact that ownership
law is an important prerequisite for self-fulfillment of man whom
ensures independence, thus creating space for the realization of its
freedom. This function of property rights was reflected ideological
leading creators of contemporary liberal democratic states with
family Czech Republic after 1989 entered. Thus, for example.
Efforts to secure rights to property is at the very foundation of intellectual effort
one of the main constructors of representative democracy and the constitutional state
John Locke, according to which the purpose of protection of state property, which means protection
property, life and freedom (cf.. Klokočka similarly,
in. the constitutional systems of European countries. Praha: Linde, 1996, p. 35).

Subsequent development of liberal political thinking, which stands in the very foundations
value and normative order of modern societies
led to the recognition that the right to property is not perceived as inherently
illimitable. However, it is necessary to reduce it existed
constitutionally acceptable reasons.

36th The Constitutional Court has repeatedly dealt with the essence of property rights and
confessed his special importance. In his opinion, the right of ownership
form the core of the personal autonomy of the individual in relation to public authorities.
By its nature, they include the right to property, of course, in the category of classical
fundamental rights and freedoms of individuals (

core-rights) and by the liberal tradition, which underpins the foundations of modern politics and modern
rights and which also pioneered modern ideas
fundamental rights and freedoms, the right of ownership encompassing categories
autonomous status of the individual against the public authorities (see. eg. Komárková, B .:
origin and meaning of human rights. SPN, Praha 1990, p. 103: "Locke saves
state protection of terrestrial values ​​of life, liberty and physical
property. Later, summarized in the concept of ownership of all these
values ​​...") (see Constitutional court file. Ref. II.ÚS 268/06, available at http://nalus.usoud.cz/
). However, like other fundamental rights it is also
ownership rights can be limited, in the event of a collision with another
fundamental right or, if necessary enforce constitutionally
aprobovaného public interest.

37th In its other findings, the Constitutional Court interpreted
fundamental right to property both as an institutional guarantee, as well as a guarantee
certain legal status (cf.. Constitutional Court decision.. I. ÚS 643/06
available at http : //nalus.usoud.cz/). About
ownership as an institutional guarantee can speak also for the reason that freedom is the freedom to own
legally constituted and therefore the legislature has a
fairly wide customization options acquisition of property, its use and disposition
with him. Property as a guarantee of a certain legal status
person limit public power from interfering with the property
already constituted. No interference with the property as a fundamental right
is possible only through a mandatory legal regulations, which are subject to the requirements
complying with the demands of the proportionality test. Such legislation
issue must also meet the requirements arising from the principle of the rule
state, and so must be clear and accessible, its consequences must be foreseeable
, must limit executive discretion and must be given the chance to review the decision
executive interference in possession of
independent and impartial judges.

VIII. B) Taxes in the constitutional order of the Czech Republic

38th The task of the state as a specific expression of political society is
"to maintain the force of law, to take care of shared prosperity and
public order and manage public affairs" (Maritain, J. Man and the state.
Prague: Triad, 2007 p. 15). So that the state could be a good tool in the service of man
must have for their activities with sufficient resources, whose
substantial portion of gains thanks to the institutionalization of compulsory
public performance pay taxes. It is precisely this purpose - obtaining
state revenues - authorizes the State to require
from certain well-defined entities such public benefits, and it
meet certain, legally defined conditions. According to the case
German constitutional court's taxes "general burden, which requires all residents
according to their income, wealth and purchasing power to finance
general government tasks." (Cf. decision of the German constitutional court of
22 June 1995 to 2 BvL 37/91, point. C, point
II.a)). The funds, which, through the tax system
chosen represent a transfer of real resources in the form of private
goods to public goods. In other words, the authority of the state
tax under certain strictly defined conditions were
institutionalized precisely in order to collect funds for
provision of public goods. To determine the supply of public goods and
to allocate costs to them it is not possible to determine the tax contributions
voluntary basis, but compensation for the expression of preferences expressed through
market is deciding on a vote
(cf. Musgrave, RA Musgrave, PB Public Finance in theory and practice.

Prague: Management Press, 1994, p. 6n.). In democratic political systems
this power traditionally granted the legislator (in English
history is directly related to the emergence of modern parliament).
Due to the fact that fiscal policy significantly affects the position
entities which have an obligation to pay taxes, it is important powers
legislators to develop and promote the necessary innovation tax policy
state, so that he could predict and subsequently
voters to explain the effects of policy choices, even in light of their constitutionality.
Through tax policy also seeks to become a leveling social differences and
just social order as a condition for the realization of fundamental rights
persons under its jurisdiction.

39th Under Article. 11 paragraph. 5 of the Charter may impose taxes and fees only
under the law. This provision precludes the tax liability determined
executive. Conversely, if it comes to taxes
prerogative of Parliament, which is endowed with exclusive competence to tax.
From the constitutional principle of the separation of powers (Art. 2 paragraph. 1 of the Constitution), as well as the constitutional definition
legislative power (Art. 15 paragraph. 1 of the Constitution) then follows for legislators
relatively wide latitude to decide on the subject , extent and scope of taxes
[see. Constitutional Court decision. Nos. Pl. US 7/03 of
18th 8. 2004 (N 113/34 SbNU 165; 512/2004 Coll.)]. Though the level of allowable
State's decisions on the subject, level and extent of taxation
principle very broad, is not unlimited, however, because when levying taxes and charges
account should be taken to protect the property rights guaranteed by Article
. 11 paragraph. 1 of the Charter. The affected constitutionally protected ownership
position, however, does not comply with other conditions (cf.
Finding of the Constitutional Court. Nos. Pl. ÚS 7/03).

40th What do his purpose is Art. 11 Sec. 5 of the Charter constitutionally
certificated limitation of property rights that can be legitimately restricted
for the purpose of determining, assessing and collecting taxes (cf..
Constitutional Court file. Zn. IV. ÚS 29/05, N 113/37 SbNU 463). Article 11, paragraph. 5
also expresses a constitutional mandate for Parliament to legitimate restrictions
ownership right through it adopted law.
The sphere of autonomy of the individual, which spoludefinuje right to property, so the public can
allowed to intervene because of the constitutional aprobovaného public interest
the essence if the tax is to collect
financial resources on providing various types public goods.
Legitimacy of taxation implies, among other things. That the results are used as well as taxation
protecting and creating conditions for the development of the property, while this
protection and creation of conditions must of course pay anything.
The purpose of taxation is not the only; Tax interference in property and legal sphere of the individual
gaining justification just distribution uniformity
these burdens (like the decision of the German Federal Constitutional Court
dated June 22, 1995, 2 BvL 37/91).

41st In order to fulfill the state budget balanced Parliament
broad authority to tax, while specific legislation defines the basic requirements of a particular bond
personal legal relationship.
Subject tax certain income, object, action or property on the basis
arises subjective commitment of a person to the state in the form of tax
obligations. "The legal reason (title) tax is determined by a special law, on the basis of which
commitment of a person to the state constitution.
Tax obligation arises fulfillment of certain statutorily defined legal
facts, conditions on the part of the state establish a legal claim to
tax and on the tax liability of the person. The tax has not the least
enforceable nature (based on the law is selected), the law precisely defines
facts establishing the tax liability amount and maturity period
"[cf. Constitutional Court decision. Nos. Pl. US 14/2000 of
10th 1, 2001 (N 4/21 SbNU 17; 43/2001 Coll.)]. Unlike
fee is not a tax is a monetary payments, which are levied as compensation for individual
advantage of this tax theory indicates that
tax constitutes such a service to the public budget, which is characterized | || neúčelovostí and non-equivalence. In other words, a tax is levied
unilateral duty without entitlement to a specific taxpayer
consideration by the state. This non-equivalence of taxes is not absolute, since

"Paying taxes is a contribution to creating the material basis for
provision of public goods, which based on solidaristic
principle can be satisfied interests of the population, including those who
tax payments was caused property damage" (Mrkývka P. financial
law and financial management. Volume 2. Brno: MU, 2004, p. 5).

VIII. C) The methodology review in the case law relating to taxes

42nd According to Art. 1 paragraph. 1 of the Constitution of the Czech Republic
democratic constitutional state based on respect for the rights and freedoms of man and citizen. Of
rule of law can deduce the basic rules of functioning of state
power, which also includes the principle of proportionality ().
This principle is based on the premise that interference in fundamental rights and freedoms, even though it
their constitutional regulation does not, can occur in case
their mutual collision or in a collision with another constitutionally protected
value that is not the nature of fundamental rights and freedoms / public property /
[cf. Constitutional Court decision. Nos. Pl. US 15/96 dated 9. 10. 1996 (N
99/6 SbNU 213; 280/1996 Coll.)]. In the case of taxation, therefore it will be the assessment
restrictions on the fundamental right to property guaranteed in Art. 11 paragraph. 1
Charter on grounds of public interest in filling the state budget
aprobovaného Art. 11 Sec. 5 of the Charter, for the purposes
associated with fulfilling state functions.

43rd The application of an appropriate methodology for review of the constitutionality of statutory regulation
taxes, fees, or. other similar statutory mandatory benefits
well as financial sanctions, the Constitutional Court expressed in the judgment
assess the conditions and rates of liability insurance
employer for work injuries or occupational diseases,
where the structure applied the principle of proportionality in the strict sense,
principle of proportionality in the sense of exclusion only
extreme disproportionality [see Constitutional court file. Nos. Pl. US 7/03 from 18
8. 2004 (N 113/34 SbNU 165; 512/2004 Coll.)].
In this decision, the Constitutional Court in particular that "the constitutional review of taxes,
charge and includes financial penalties [in addition to the above maxim
exclusion of extreme disproportionality] also from the perspective of assessing compliance
safeguards arising from the constitutional the principle of equality, both non
(Art. 1 of the Charter), ie. resulting from the requirement excluding the arbitrary
differentiating subjects and rights, and accessory to the extent specified in Article.
paragraph 3. 1 of the Charter . "

44th In its judgment. Nos. Pl. US 24/07, promulgated as no. 88/2008 Coll., The Constitutional Court
systematized several groups of decisions on issues of constitutionality
taxes and fees. The first group of decisions of the Constitutional Court
constitute case law on the interpretation and application of the provisions of Article. 11 paragraph. 5
Charter in relation to the provision of Article. 79 par. 3 and Art. 104 Sec. 3 of the Constitution in matters
limits subordinate regulatory taxes and fees [see especially
finding sp. Nos. Pl. US 3/95 dated 11. 10. 1995 (N 59/4 SbNU 91;
265/1995 Coll.), Finding sp. Nos. Pl. US 63/04 of 22. 3. 2005 (N 61/36 SbNU 663;
210/2005 Coll.), Finding sp. Nos. Pl. US 20/06 of 30. 3. 2007 (N 55/44
SbNU 70; 164/2007 Coll.)]. The second group consists of the constitutional review
legal framework for taxes, fees, or. other similar statutory
obligatory charges, as well as monetary penalties [sp. Nos. Pl. US 3/02, renowned
under no. 405/2002 Coll., Sp. Nos. Pl. US 12/03, published as no. 300/2004 Coll
., Sp. Nos. Pl. US 07/03, published as no. 512/2004 Coll.]. Finally, the third group
decisions on questions of the constitutionality of legislation, taxes, or
. other similar statutory benefits, presents findings
Constitutional Court of Czechoslovakia sp. Nos. Pl. US 22/92 (Collection of resolutions and findings
Constitutional Court of Czechoslovakia, no. 11, p. 37), which established the terms of the review
tax equity, respectively. Tax proportionality.

45th At this point Constitutional Court considers it appropriate to point out
case law of the German Federal Constitutional Court, which in solving
property taxes drew attention to the need to respect the order, according to which property tax
not lead to a creeping confiscation of property and not to interfere | || substance into equity. In such cases it is necessary to take into account
fiscal interest in preserving resources tax, as well as individual
interested in maintaining their own property. It is also important that the special protection enjoyed
economic goods that serve personal livelihood and owner

His family. These farms allow the existence of free space for the formation
personal sphere of life on their own responsibility. From these postulates
Federal Constitutional Court concludes that the tax legislator must
reduced beyond a certain limit further taxing the property, which acts as a base
shaping individual lives taxpayer.
The economic basis of personal life evolves according
economic and cultural standards of life in a given society (cf.
Decision of the Federal Constitutional Court dated 22 June 1995, 2 BvL 37/91).
Justification for the existence of basic subsistence minimum is based on the fundamental rights
while basic objective constitutional values ​​in the form
human dignity which the State is required to retain, respectively.
Ensure every citizen the basic needs for human and dignified existence
. In another decision relating to tax law,
Federal Constitutional Court also ruled on the interpretation and application
principle of equality in the legal field. This principle requires that the tax law
burdened taxpayers - legally and factually - evenly
(cf. The decision of the Federal Constitutional Court dated March 9, 2004, 2
BvL 17/02). The principle of equality requires that every resident was involved
according to their eligibility evenly into the funding of public functions.

VIII. D) Methodology proposed review by the Supreme Administrative Court

46th From the foregoing, that the Charter itself, in the case of taxes, restrictions
property rights assumes it contains constitutional mandate
tax the legislators that gives wide latitude to decide
course, the extent and scope of taxes. Precisely for this reason, the Constitutional Court
used for assessing the constitutionality of taxes
proportionality test in a modified version, following only the exclusion
extreme disproportionality and verifying whether there has been a breach of the principle of equality
. Appropriateness and necessity of the measure is fundamentally
left to the will of the legislature, which, in its decision bears political responsibility
. This does not mean the absolute arbitrariness of the legislature, because
to ensure that the tax was found to be constitutional, should not be
conflict with the constitutional principle of accessory and non-equality.
It is obvious that equality accessory can be applied to any
fundamental right guaranteed by the constitution.

47th In the opinion of the SAC Discrimination only one option
illegitimacy of tax liability, and therefore proposes the extension
review of the constitutionality of taxes. NSS in its filing with suggestions for further
test, according to which it would be unconstitutional and should be labeled a tax that
not only violates the principle of equality and / or a confiscatory impact, but also
tax that does not stand up to a minimum test of legitimacy and rationality.
According to this test, the proposed SAC is to be regarded as unconstitutional and
such a tax, which is not discriminatory and does not have a throttle effect, but
not supported by any legitimate and rational reason. The proposed test
legitimacy and rationality inspires so.

Rational basis test, which recently became part of the methodological also
instrumentation used by the Constitutional Court [see Constitutional Court
sp. Nos. Pl. US 39/01 dated 30 October 2002 (N 135/28 SbNU 153;
499/2002 Coll.) Constitutional Court decision. Nos. Pl. US 6/05 of 13 December 2005 (N 226/39
SbNU 389; 531/2005 Coll.) Constitutional Court decision. Nos. Pl.
US 83/06, promulgated as no. 116/2008 Coll., The Constitutional Court decision. Nos. Pl.
US, promulgated under no. 251/2008 Coll.)]. Although in its Judgment. Nos. Pl. US
6/05, promulgated under no. 531/2005 Coll., The Constitutional Court

Rational basis test aligned with the test of admissibility of extreme disproportionality, logic
minimum test of legitimacy and rationality of the proposed SAC logic
test inadmissibility extreme disproportionality
significantly different.

48th The proposed

Rational basis test, the Constitutional Court have noted that it is a test of American provenance, which represents
least intensive form of review. The US Supreme Court
resolved to abolish the tax laws only in a situation where he
classification of taxpayers and subject seemed arbitrary taxation, which
happened only in limited cases. In other words, no legal
treatment shall not establish arbitrary discrimination. For comparative studies,

Which the Constitutional Court has available to it indicates (cf.. Ordower, Henry.
"Horizontal and Vertical Equity in Taxation and Constitutional Principles
: Germany and the United States Contrasted." (September 6
2005). bepress Legal Series, Working paper 728, online text:
http: //law.bepress.com/expresso/eps/728), the German Federal constitutional court
appears far more proactive in tax cases and has
repeatedly found that the tax laws collide with constitutional principles, which are in the United States
happens very rarely.
Cause differences there may be associated with a different interpretation of fundamental rights in the US and Europe
. While in the US are fundamental rights
interpreted only as negative rights (the state is obliged to respect fundamental rights), the European standard
interpret basic rights as the right
positive (the state has an obligation to protect fundamental rights).

49th The Constitutional Court notes that when examining the constitutionality of the contested provision
does not intend to depart from its case and therefore
will be based on a modified version of the principle of proportionality, and will investigate any violation of the ban
extreme disproportionality in conjunction with criteria | || arising from the constitutional principle of equality. That assessment
things in terms of adherence to constitutional standards of accessory and non-accessory equality
allows you to enforce the requirement that the legislature could not be determined as the object of taxation
completely irrationally chosen conduct, actions or behavior
people, because this procedure would his He committed an overt, respectively.
Willful violation of the constitutional principle of equality, while
noted that violation of accessory equality is conceptually associated with
violation of other basic rights. When taxation has become quite
broad freedom, but even here, "the state may decide that one group
provide fewer benefits than others, but must not act arbitrarily and
of its decisions must be clear that so in the public interest "
[see. Constitutional Court decision. Nos. Pl. US 2/02 dated 9.3.2004, (N
35/32 SbNU 331; 278/2004 Coll.)]. Apparent arbitrariness by the legislature thus preventing
right criteria accessory and non-accessory equality, which in some respects
overlap with some components of the test
legitimacy and rationality of the proposed SAC. The principle of equality in the plane
review substantive tax law specifies standards in relation to the nature
taxes. As a general tax burden, obliging residents to finance policy
state, according to their income, wealth or purchasing power is justified
uniformity of distribution of these loads (see the decision of the Federal Constitutional Court
dated 22. 6. 1995 2 BvL 37/91). Other components
test of legitimacy and rationality, however, can not be implemented because they go beyond the definition of angles
review of the constitutionality of tax laws to the extent
which has failed to respect the fundamental constitutional competence predicted
legislature to tax, which means that the legislator
essentially has wide discretion in the choice of means, ie. the choice of subject, degree and extent
taxes. Assessing the appropriateness and necessity of individual components
fiscal policy is left to the discretion of the democratically elected legislature
so far as the impact of the tax on persons not strangling effect (not
extremely disproportional) and also violates the principle of accessory and non-accessory equality
. These constitutional demands on tax legislation, according
Constitutional Court's opinion, absolutely guarantee (in the context of constitutional authority to impose taxes
) to the reviewed provisions in the event that the indicated
test stand, be termed the legitimate.

VIII. E) Inspiration from elsewhere: Practice ECHR

50th The Constitutional Court recalls that the right to property is also protected by Article.
1 of Protocol no. 1 to the European Convention on Human Rights,
according to which any natural or legal person is entitled to the peaceful enjoyment of his possessions
. However, neither the Convention is not an absolute right of ownership
law as Protocol no. 1 to the Convention under certain conditions
deprivation of property (para. 1), and in its second paragraph recognizes
Contracting States the right to adopt laws that deem necessary to control
use of property in accordance with the general interest or to secure the payment of taxes.
To be obliged to pay tax in accordance with the Convention, must pursue the general interest
; States, however, have the freedom to define what they consider
necessary. According to the European Court of Human Rights may collecting taxes,

Except in the case of discriminatory tax regime, violate Article 1 of Protocol
only when the load in question unbearable burden
or subverts its financial situation (cf.. Sudre, F.
international and European human rights law. Brno: Supplement, 1997, p. 217). Given the wording of the Convention
European Court of Human Rights assesses taxes only from the perspective
safeguards arising from accessory equality (Art. 14 of the Convention)
not in terms of equality before the law.

The Review

IX. A) Property real estate transfer tax

51st Real estate transfer tax is a traditional historical
taxes constituting an additional element of the tax system. As stated in its statement
Ministry of Finance is currently a yield of about 9 billion. CZK and
even after reducing the rate from 5% to 3% (paragraph 17). Almost all European
countries (except Slovakia) is included in one or another form of tax on transfer of property
. Usually, the tax applies only to transfers of corrupt
real estate in some countries is among the objects of taxation and other commodities
(ships, aircraft, etc.). In some countries, then chooses instead
taxes on property transfer tax on registration of transfer of property or
so. stamp duty or transfer tax replacing the tax on legal acts
(cf. Radvan, M. Property Taxation in Europe. Prague: CH Beck,
2007, p. 236n.). Real estate transfer tax is, together with gift tax and inheritance tax
called for. Transfer taxes (heat transfer). All
transfer taxes affect the acquisition and asset transfers that occur
primarily on the basis of sales, inheritance or donation (cf. Bakeš, and
M. et al., Financial law. Praha: CH Beck, 2006, . 323). These taxes, which are paid irregularly
because the property taxation occurs once
when the holder changes. The economic literature talks about the function
estate transfer tax is to prevent evasion of
gift tax that would tax entities could avoid
fictitious contracts for the sale of the property, and ultimately to
inheritance tax (see Kubátová, K. tax theory and policy. Praha: ASPI,
2003, p. 235). In the absence of one of these transfer taxes threatens
that will occur because attempts to circumvent the law.
Distinguishing feature of the real estate transfer tax is unlike other
transfer taxes that, subject to real estate transfer tax is
triggered by a transfer or assignment of property rights.
Intention of the legislature is a load value of the property transferred by the transferor
thus achieved financial revenue property or achievable financial
proceeds from the sale of real estate, if the agreed price is lower than found
(cf. Constitutional Court IV . US 500/01, N 51/30 SbNU 47).
Transfers are registered through the ownership rights to the property under
Act no. 265/1992 Coll., On Registration of Proprietary
and other real property rights, as amended.

52nd Although NSS seeking, through only against the amount or against delimitation
circle of tax payers, the test of legitimacy and rationality
consists of several components, as NSS asserts that if transfer tax
Realty is (a) a discriminatory tax, which (b) does not stand up under
basic functions that tax theory usually states for taxes (allocation,
redistribution, stabilization), (c) is inconsistent with the need for housing and leads to a significant
deformation of the housing market, and (d) because of its
institutionalization occurs chaining tax, which for its
irrationality and disincentive effects achieved unconstitutional intensity. NSS
vice versa is not considered as a reason for the unconstitutionality of the real estate transfer tax
its amount. If objects NSS in the assessment test performed
legitimacy and rationality that in the case of real estate transfer tax in terms of
tax is discriminatory, it is the opinion of the Constitutional Court a clear example
proposal to tax assessment in terms of safeguards arising
from the constitutional principle of accessory and non-accessory equality. In another analysis, the Constitutional Court, however
cope with some other objections raised

IX. B) Test exclusion of extreme disproportionality

53rd As already stated, the legislature has great discretion in what kind of tax
chooses to collect funds to secure their
functions and policies, however, must not interfere with the property rights so that

The financial situation of the entity concerned fundamentally changed, so that
there was a "frustrating the very essence of property", ie. The "destruction of property
base" taxpayer (cf. Judgment Pl. US 3/02, promulgated under no.
405/2002 Coll.), respectively. that "the extent of public
mandatory monetary payments by an individual against the state acquired the throttle throttling
action" (Pl. US 07/03, promulgated as no. 512/2004 Coll.).
In other words, it can be stated that triangulation duty shall not restrict the right of ownership
person liable to pay taxes in a way that would be contrary to the provisions of Article
. 4 par. 4.

54th That's when the property transfer tax set at 5%
however, definitely not. If we talk Engliš that "
tax does not destroy the sources from which it follows" (Englis, K. National Economy. Praha:
Fr. Pine Publishing, 1928, p. 347), then this fact
in the case of real estate transfer tax can not say. Finally, even the SAC in its
draft notes that tax is not excessively high (throttle, strangling) and
in the sense that it would significantly restrict the very essence
property rights (see paragraph 8) and the Constitutional Court with this assessment identifies,
because it is obvious and needs no further review. Generally, you can imagine
Although individual cases where a combination of several factors (eg.
Job loss and the need for the sale of mortgage-burdened real estate)
relevant, especially now, during the financial crisis, may
lead to the fact that the obligation to pay the tax will raise extremely difficult
consequences for the taxpayer. To mitigate nevertheless serves exercise
other institutes that although the law provides and the Constitutional Court is convinced about their imperfections
(nenárokovost crucial decisions on tax exemption under the provisions
. § 55a of Act no. 337/1992 Coll. on administration of taxes and fees,
amended, and the decision on the remission of tax arrears by
ust. § 65 Act no. 337/1992 Coll., on administration of taxes and fees, as amended
regulations) can not deal with their constitutional
review, because these provisions are not and can not be discussed
proposal attacked.

IX. C) Equality

55th At the beginning when assessing whether the real estate transfer tax is not in conflict with the safeguards
stemming from the principle of accessory equality
Constitutional Court considers it appropriate to indicate the view that "
all decision-making processes within all three branches of government
able to relate to the creation and performance of the various decisions with respect to different situations. In this sense
"discriminate" [ie. perceive and state differences]
there is nothing wrong with that, unless there is a specific finding differences
covered, in the words of constitutional law, so-called. "problematic category of"
therefore one of the criteria mentioned in the exhaustive list of Article 14
European Convention on human rights. These categories are problematic
anything other than an exception to the general rule, which allows for use other than
problematic category of any distinguishing
decision-making process. Prohibition of discrimination with regard to a particular distinction is therefore
exception, not the rule. That however does not mean that
discrimination was at problematic categories strictly prohibited. In fact,
discrimination within the specified categories allowed if
together with the application of the criteria of equal protection, proportionality and rationality
"(see the dissenting opinion of Judge Boštjan Zupančič in
things Burden against the United Kingdom of 29. 4. 2008, in
court case law, summary judgments of the European court of human rights 6/2008,
p. 319).

56th As is clear from the decisions of the Constitutional Court, the distinction
leading to the violation of the principle of equality is inadmissible in two respects:
can act both as an incidental principle, which prohibits
discriminate against persons in the exercise of their fundamental rights, and as | || non-accessory principle enshrined in Art. 1 of the Charter, which lies in the exclusion
legislative arbitrariness in distinguishing between the rights of certain groups
entities. In other words, in the second case, the principle of equality before the law
which is through Art. 26 of the International Covenant on Civil and Political Rights
part of the Czech constitutional order [see Judgment.
Brand. Pl.ÚS 36/01 dated 25 June 2002 (N 80/26 SbNU 317; 403/2002 Coll.)]
According to the petitioner in the case of taxation of the transfer of only one type of property

Application was arbitrary, since "there must be very strong and
rational reason why the [legislature] has chosen to tax the transfer
just this one kind of property." That opinion is to be noted that the taxation || | transfer of immovable property will not be considered arbitrary if it is possible
noted significant differences in the transfer of this type of property (ie.
immovable property) and other types of assets (movable property) that
property transfers in both groups is incomparable. It can not be
vice versa, but again due respect for the principle of equality, edit
scheme of things unequal and uneven process as well. Here it is necessary
stressed that from the standpoint of the legal existence of immovable property
tied to the land registration, while his absence prevents
consuming property rights. Movables for its existence
such recording need and if some movables yet entered
to certain databases such registration has constitutive significance for their
legal existence. Dividing things for real and personal property is crucial not only for private
law, but lawmakers are also connected
significant consequences in public law. Houses are also irreplaceable
economic significance and are obviously well-saved capital.
Options actual use of all functions of real estate helps state by
they meet their obligations eg. The creation and protection of public order or
support for the development of the general welfare. As in its statement
Ministry of Finance, the property can not exist separately from
infrastructure whose quality determines substantially also on the price
property. Standing on her and to protect property from external threats
devotes considerable resources (see paragraph 18). Because so owners
Realty gets the activities of certain state benefits can not be
talk about the illegitimacy of their taxation by different forms (
at the first fulfill this function, of course, real estate tax). The reason why the legislature chose
taxation on transfer of immovable property, it is clear just from differences
this form of property, while not overlook that the transfer
movables subject to other types of taxes, which in turn affect things
immovable. Tax differentiation in the transfer of movable and immovable things
based on the substantive differences which are immovable
differ from movables and therefore different tax regime coupled with their transfer
not violate the principle of non-accessory equality. For the reasons set
substantial differences can not be viewed from the taxpayer to understand
taxing the transfer of immovable property as unfair, because it is impossible to assess
different mode so that it unreasonably deprives
good one entity versus another entity when, as above, both these entities
not in a comparable situation.

57th The above-mentioned also refutes the petitioner's claim that the tax in question
unreasonably discriminates against owners of apartments in private ownership versus
flats in cooperative ownership. As follows from the above cited
opinion of Judge Zupančič, virtually every legal regulation leads to
distinction, which implies that someone negatively affects.
Distinction between these two categories of transfers bytes can be accepted because
undoubtedly there is a difference between a property right to the apartment and the rights and obligations
team member. Other treatment of different situations is not essentially
excluded. According to judicial decision-making practice may be flat
defined as "apartment located in a building owned or co-owned
housing cooperative, which serves to satisfy the housing needs
members of the housing cooperative." Cooperative apartments, then
association rents to its members, who can only convert their shares
cooperative. The subject of transfer in the case of a transfer of membership
housing cooperative, according ust. § 230 of the Commercial Code
member rights and obligations, although legal practice also uses the term
member or co-operative share. The main reason for the acquisition of the rights and obligations of the acquirer
side will obviously be interested in acquiring the rights lease
cooperative apartment that is associated with that membership.
From the above it follows that in cooperative housing is a different legal relationship than in the case
privately owned flats. However feature privately owned apartments and cooperative apartments
is practically comparable, when you look closer

Should be noted that the position of the property owner and the "owner"
membership rights significantly different, which is best seen in the example
layout options with things as member rights. Indeed,
difference between the two forms already stated the Constitutional Court case law [cf.
Constitutional Court decision. Ref. Pl.ÚS 42/03 dated 28 March 2006 (N 72/40
SbNU 703; 280/2006 Coll.)]. Therefore it is justified and different tax regime.

IX. D) Other objections

'58. The question which the Constitutional Court can not be avoided, is whether all
Constitutional court to assess the real estate transfer tax in terms of functions
taxes, which operates the economic literature, which
refers in its application NSS. The proposal NSS indicates that the Constitutional Court had judged unconstitutional
taxes in terms of three basic functions
taxes and the tax system, and it functions allocation, distribution and stabilization
(this typology can be found in many publications - cf. Musgrave, RA
, Musgrave, PB Public Finance in theory and practice. Praha:
Management Press, 1994, p. 6nn., Kubátová, K., Vitek., L.
tax policy. Prague: CODEX, 1997, p. 12, Kubátová, K. Tax theory and policy
. Praha: ASPI, 2003, p. 19, Peková J. Public finance, an introduction to the issue
. Praha: ASPI, 2005, p. 323). In the Constitutional Court
However, the assessment of taxes in terms of these criteria belong to the competence
democratically elected legislature. If allowed, the Constitutional Court
came and entered into the field of individual policies whose rationality can not be
terms of constitutionality well enough to evaluate.
Tax efficiency Constitutional Court also generally does not review subject
those cases where the inefficiency of a tax based on the obvious inequality
tax burden on individual residents. Constitutional court only
examine whether the tax measures do not infringe upon constitutionally guaranteed
property owner substrate, respectively.
if they can not be regarded as unduly biasing the principle of equality, ie. as arbitrary.

59th In the Constitutional Court it is necessary to take into account the fact that
all tax forms one system (see paragraph 48 and 51). It follows that
if he wanted the Constitutional Court to address the question of legitimacy and rationality
taxes, real estate transfer would have to solve mutual respect
taxes on property transfer to other taxes. If
Constitutional Court decided to rule on the question whether the property transfer tax
appropriate and necessary element of the tax system would have entered authoritatively, but
without constitutional justification, in the debate, which is not itself
professional economic and legal community regarding proposals

De lega ferenda uniform: eg. In the Proceedings of the perspectives of tax policy states
as an optimal variant of a change in budgetary transfer tax
property (Kubátová, K., Vybíhal, V. et al.
optimization of the tax system of the Czech Republic. Prague: Eurolex Bohemia, 2004, p. 152), ie. it is preferable
its preservation in a modified version compared to maintaining the current version, as well as
opposed to its complete abolition. If there is no consensus even among
relevant experts, is not the role of the Constitutional Court to speculate about
correct answers. The Constitutional Court is aware of the importance of deciding
tax system in the context of competing political parties, respectively.
in the context of the wishes and preferences of members of the political community in relation to the degree of sociality
state policies which find a response in the election
results, and therefore must leave these questions
consideration of a political majority that was formed elections . Engliš already noticed that
'struggle for political power in the state's struggle to regulate the ideals for which
coming State to regulate the public good. At the same rate as the related
construction spending and revenue structures, the political struggle is also a struggle
system of public revenues, primarily tax system "(Englis, K.
Financial Science. Brno: Printing, 1929, with . 101). The Constitutional Court in this
political competition does not intend to enter and is ready to hit only
if found unconstitutional tax laws within the range specified above

60th The Constitutional Court does not intend to review the harmony tax policy nor with
other policies, eg. A housing policy, as suggested by the SAC, because
would find himself on thin ice are not always conclusive
economic analyzes designed to assess the results and and deduce policy

Consequences, Democratic lawmakers, who must consider whether
tax legislation is appropriate and necessary from this perspective. NSS, in its proposal
also concluded that property price increases by the amount of tax it contested, while
however, provided statistics suggest that between these two variables
there is a direct relationship to the NSS concludes (paragraph 20).
Some authors even express more skeptical of the relations between
estate transfer taxes and restrictions on the housing market, mobility
population and other negative social with consequences: "There
also certain that the elimination of this tax must have an impact on housing policy,
that this would significantly increase the mobility of the population and
indirectly reduce unemployment "(Radvan, M.
property Taxation in Europe. Prague: CH Beck, 2007, p. 353) . Since there are more exact
economic analysis and NSS them did not support the proposal as well, but based its findings
just claim to be "inherently obvious" (though arts
any explanation should work with complex
multifactorial explanations) does not intend to authoritatively
Constitutional court to rule on the links between these and perhaps other variables
when the addition of analyzes that the Constitutional court is available
imply that transfer tax Real estate has been a major brake on development
relevant policies, and that its influence on labor mobility
business or worsening social situation was somehow essential (see paragraph 21).
The Constitutional Court is not his judgment about the appropriateness of public policies
replace the judgment of the democratically elected legislature, which is in the realm of public policy
broad discretion, and also for the possible failure
chosen solution bears political responsibility. In other words, the legislature may
in tax matters and take irrational action, which does not yet
reason for the intervention by the Constitutional Court. He hits until then, if there
limitation of property rights in the so-called intensity. Throttling effect, or
if there is a breach of the principle of equality in the accessory (
here in relation to other fundamental rights) or non-accessory form.

61st Another area of ​​objections directed against the fact that in the case of real estate transfer
charged as administrative tasks, so this alone
transfer. Solving this problem must be sought in the purpose that individual payments
pursue. The interpretation of the relevant legal norms
shows that the real estate transfer tax and fee land registration
estate have different functions, because the need to pay the registration fee
in the real estate is determined by the need for cost recovery associated with || | administrative proceedings conducted before the Land Registry in deciding
deposit in the Land Registry, while the real estate transfer tax
monitors the uniform tax burden in terms of value corresponding to the transferred
owned immovable property.

62nd NSS proposes to assess taxation in the context of other issues, because
chaining tax obligations is necessary in his opinion, be considered
unconstitutional. Another objection, which appears in the draft SAC tends to
problem of double taxation of the same income in the case of real estate
sold within 5 years of their acquisition (paragraph 11), which, according to NSS
leads to unconstitutional consequences. This view was not shared by the Constitutional Court.
Cited exception should resist speculative purchases and sales of apartments in
transformation period, which was and is accompanied by unresolved housing
policy. Intensity concatenation tax as unconstitutional
consequences also prevents a large number of exemptions contained in the Act no.
357/1992 Coll., On income tax and the fact that the duty would be borne only
profits obtained by selling property not the entire income. It is also necessary to take into account
time dimension, because the application of the tax liability occurs
in property transfer taxes substantially randomly depending on the sale of real estate
her owner as real estate tax is a tax on the contrary
Piped regularly every year, which, after subsequent sale of real estate already
not in relation to the original owner to apply.
Not be regarded as unconstitutional a tax concatenation when individual
shackles on himself do not follow necessarily, but the onset of further taxation is
bound to the realization of ownership form layout with him.

63rd The Constitutional Court finds that the reasons were found to comply

NSS proposal for declaration of unconstitutionality of the provisions cited header
under the law, and the proposal was within the scope of the provision. § 8. 1 point.
A) ust. § 9. 1 point. a) ust. § 10 point. a) first and ust. §
15 of Act no. 357/1992 Coll., on inheritance tax, gift tax and real estate transfer
, in the version before the amendment by Act no. 420/2003
Coll., according to the provision. § 70 para. 2 of the Constitutional court, dismissed
and the rest rejected by ust. § 43 para. 1 point. c) in connection with the provisions.
§ 43 paragraph. 2 point. b) as a petition filed by a clearly unauthorized (
see paragraph 31).

Chairman of the Constitutional Court:

JUDr. Own hand

* Pozn.red .: Collection of Decisions of the Constitutional Court, volume 44, judgment
no. 23, pp. 279, promulgated under no. 84/2007 Coll.