Motion Of Unconstitutionality Under Section 105 Of Act No. 235/2004 Coll.

Original Language Title: o vyslovení protiústavnosti části § 105 zákona č. 235/2004 Sb.

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=68106&nr=54~2F2009~20Sb.&ft=txt

54/2009 Sb.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court ruled on 9 April. December 2008 in the plenary in the composition of Stanislav

Package, Francis Skinner, Vlasta Formankova, Turgut Güttler, Ivana Janů,

Vladimir Crust, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodým,

Pavel Rychetský, Miloslav Výborný, Elisabeth Wagner and Michael April

to decide on the proposal provided by the municipal court in Prague under art. 95 para. 2

The Constitution of the United States to declare the unconstitutionality of the provisions of § 105

paragraph. 1 third sentence of Act No. 235/2004 Coll., on value added tax, in the

the text of the amendments made to the law before no 296/2007 Coll.



as follows:



The provisions of § 105 para. 1 third sentence of Act No. 235/2004 Coll., on income tax from

value added tax, in the version prior to the amendments made by law No.

296/2007 Coll., and the text of the "Declaration of bankruptcy with tax management

does not cut, and after the Declaration of bankruptcy are refunded, calculated excess

deduction, if does not have tax arrears incurred prior to the Declaration after

Declaration of bankruptcy "was in breach of article. 11 (1) 1 of the Charter

fundamental rights and freedoms.



Justification



(I).



The definition of things and a recap of the proposal



1. The Constitutional Court was delivered on 19 December. 6. the 2006 proposal for a municipal court in

Prague to repeal the provisions of § 105 para. 1 third sentence of Act No. 235/2004

Coll., on value added tax, as amended, the text

"The Declaration of bankruptcy of the tax proceedings does not cut, and after the Declaration of

bankruptcy is meant to be refunded the excess forward, if there is no tax

arrears incurred prior to the Declaration after the Declaration of bankruptcy. " (hereinafter

also known as ' the contested provisions ').



2. the applicant did so after in the context of its decision-making

activities in accordance with art. 95 para. 2 of the Constitution of the Czech Republic (hereinafter referred to as

"The Constitution") came to the conclusion that the provisions of § 105 para. the third sentence of

Act No. 235/2004 Coll., on value added tax, as amended

regulations to be in solving things SP. zn. 11 Ca 253/2005 applied,

It is in breach of article. 11 of the Charter of fundamental rights and freedoms (hereinafter referred to as

"The Charter").



3. In that case, SP. zn. 11 Ca 253/2005 is the municipal court in Prague

decided on the action. Jiřina Lužové, administrator bankruptcy

the bankrupt, O.S.A., spol. s r. o., against the decision of the tax authority for the

Prague 7 of 9 June. 8.2005 No. 76204/05/007914/3,347, which this

rejected the claim by the applicant against the decision of 18 February 2004. 7.2005 No.

j. 69719/05/007914/3347. This decision, the Tax Office for Prague 7

decided to transfer the excess of the bankrupt, O.S.A., spol. s r.o., on

value added tax (hereinafter ' VAT ') in the amount of CZK 3.668, reported to the

Day 18. 7. in 2005, to cover the outstanding balance of the company concerned on

income from employment and functional benefits

reported on 18 September 1981. 7.2005 in the amount of 1.825.711,-CZK. The applicant in the

submitted the proposal argues that the overpayment, which was created after the Declaration of

bankruptcy is the material value belonging to the bankrupt estate and

financial authorities are obliged to follow the provisions of section 14 of Act No.

328/1991 Coll., on bankruptcy and settlement, as amended

(' the law on bankruptcy and settlements "or" ZKV "), and to respect the

the fact that the set-off of the assets belonging to the bankrupt estate is not

possible.



4. the municipal court in Prague when discussing things took the view that the

the provisions of § 105 of the third sentence of paragraph 1 of Act No. 235/2004 Coll., on income tax from

value added tax, as amended, and this text: "certificate

bankruptcy tax proceedings does not cut, and after the Declaration of bankruptcy of the

Returns the calculated excess deduction to the payer, if does not have tax arrears

incurred prior to the Declaration after the Declaration of bankruptcy ", whose use in the

the case is contrary to the constitutional order of the Czech Republic,

specifically with article 11 of the Charter, and therefore handed the proposal to repeal this

the provisions referred to in article. 95 para. 2 of the Constitution, since it is this provision

bound.



5. in the preamble to its proposal, the municipal court in Prague argues findings

The Constitutional Court, SP. zn. I. ÚS 544/02 [find of 7.4.2005 (N76/37

SbNU75)] ^ *, which implies the conclusion that, if the General Court proceeded in

contrary to peremptory norm [section 14, paragraph 1, point b i) the Bankruptcy Act

the settlement] and did not respect the goal of this law, unjustifiably so

one of the favored creditors, i.e. the State represented by the tax authorities.

At the same time the Rapporteur recalls that the relationship of the receiver and

tax authorities in tax proceedings is governed by the relationship. Therefore, also

the question of whether the receiver has or does not have the right to return

overpaid tax, or how to be loaded with the vratitelným

overpayment scam, can be judged and rozhodována just from the points of view and by

the legislation of the public rather than those that govern the

private law relations. Also the overpayment within the meaning of the provisions of §

64 of Act No. 337/1992 Coll., on administration of taxes and fees, as amended by

amended (hereinafter referred to as the "law on the administration of taxes and fees" or

"ZSDP"), is the legal concept of public law. At the conclusion of the design City

a court in Prague summarizes, referring to constant decision-making practice

The Constitutional Court that the wrong application of the standard simple rights that

in the case of unjustified advantage allows the State as

one of the lenders, would be in violation of the constitutionally guaranteed rights (article.

11 of the Charter) and therefore proposes that the Constitutional Court, the contested provisions

the law on VAT, set aside a day to be fixed in the award.



6. in the course of the management of the municipal court in Prague suggested within the meaning of the provisions of §

63 of the law on the Constitutional Court and section 95 para. 1 of Act No 99/1963 Coll.,

Code of civil procedure, as amended, changing the original

the proposal, to the Constitutional Court held that the provisions of § 105 para. 1

the third sentence of Act No. 235/2004 Coll., on value added tax, as amended by

1. 1.2008, IE. in the version before the amendments made by law No.

296/2007 Coll. (hereinafter the "Act No. 235/2004 Coll. ' or ' the law on VAT '),

It was in breach of article. 11 (1) 1 of the Charter. Its proposal for a municipal court

Prague was motivated by the fact that the contested provision was of the law

296/2007 Coll., amending Act No. 182/2006 Coll., on bankruptcy and

the ways of its solution (insolvency law), as amended

regulations, and some laws in the context of its adoption (hereinafter referred to as

"Law No. 296/2007 Coll."), canceled, revoked, however, does not alter the

the fact that the contested provisions shall continue to be applied to the legal

relations arising in the period of its validity and scope.



II.



Recap the essential parts of the representation of the parties



7. Pursuant to § 42 para. 4 and section 69 of Act No. 182/1993 Coll., on the Constitutional Court,

as amended by later regulations (hereinafter referred to as the "law on the Constitutional Court"),

posted by the Constitutional Court of the present proposal to the parties-Of

the House and Senate of the Parliament of the Czech Republic.



8. In its observations of 13 January 2004. 6.2007 the President of the Chamber of Deputies

Parliament of the Czech Republic-Ing. Miloslav Vlček States that legislation

the return of excess in § 105 of the law on VAT was taken into law

from the previous Act No. 586/1992 Coll., on value added tax, as

is listed in the explanatory memorandum to the Act. When approving the contested

the provisions of the legislature was based on the fact that tax control is

realization of the rights and obligations of the tax subject to the State

represented by the tax. The relationship of the tax authority and tax Manager

that the rules of tax proceedings, is based on inequality,

with a view to tax legislation is the recovery of the tax from being truncated

the revenue of the State. An excessive deduction of the value added tax when

exceed the deductible tax on output, is conceived as a payment of tax,

that is the tax administrator used to cover tax obligations pursuant to § 59

paragraph. 5 of the law on administration of taxes and fees, or to pay for any

balance on other tax or other tax authorities under the

terms and conditions. The legislature, which the law No. 235/2004 Coll.,

He acted in the belief that the law is adopted in accordance with the Constitution, the constitutional

policy and our legal system. It is up to the Constitutional Court, in the context of

with the examination of the proposal to repeal the provisions of § 105 para. 1 sentence of third law

No. 235/2004 Coll., to assess the constitutionality of that provision and has issued a

the relevant decision.



9. In the observations of the Czech Senate from day 14. 6.2007

its Chairman MUDr. Přemysl Sobotka recalls that the Senate to

the issue of adjustments contained in § 105 para. 1 of the law on VAT has already expressed his

in its statement No. 10390/06 of 17 February. October, 2006 in the matter of SP. zn.

PL. ÚS 12/06 [find of 2008 (competition no. 342/2008 Coll.)].

Further notes that the argument of the applicant, relying only on the earlier

decisions of the Constitutional Court, SP. zn. Even TC 544/02 (see above), does not seem to be

convincing, because section 105 of the law on VAT already explicitly, as opposed to

the legal status of the force to 30. April 2004, during which amount has been issued

the decision contains in essence the exemption from the scheme of the Act on

bankruptcy and settlement. The amendment of the Act on bankruptcy and settlement No 27/2000


Coll., effective since 1. in May 2000, he gave the legislator clearly indicate that

will no longer be privilegovat State regarding its claims against úpadcům,

with a privileged position, it took almost a decade and the State concerned

not only are the claims of tax (went further on the charges, duties and contributions to

social security, if not more than three years prior to the Declaration

in the course of bankruptcy and bankruptcy), but the adoption of the new law on VAT

as if this position were revised and agreed together with the new law, that

in the case of an excessive deduction of value added tax to the State with the

other creditors "divide". The Constitutional Court is to assess whether the

the exemption provided for in § 105 para. 1, third sentence of the law on VAT, which

ensures the State of fiscal reasons "more demanding" to satisfy his

the claims than the other lenders involved in the bankruptcy, is the

by modifying the Constitutional Court within the meaning of decision SP. zn. Even TC 544/02

considered editing the constitutionally Conformal and defend.



III.



The diction of the contested legal provisions



10. The provisions of § 105 para. the third sentence of Act No. 235/2004 Coll., on income tax

value added tax, in the version prior to the 1. 1.2008, IE. before the amendments to the

carried out by Act No. 296/2007 Coll., added: the Declaration of bankruptcy, the tax

management does not cut, and after the Declaration of bankruptcy are refunded, calculated

excessive deduction, if does not have tax arrears incurred prior to the Declaration

even after the Declaration of bankruptcy.



11. The amendment made by Act No. 296/2007 Coll. question sentence

the third to the first paragraph of section 105 of the VAT Act repealed with effect from 1. 1.

2008.



IV.



Assessment of the Act in respect of its acceptance and release of the constitutionally prescribed

way



12. The Constitutional Court, in accordance with the provisions of § 68 para. 2 of the Act on the constitutional

the court first assess whether the law, which has raised the unconstitutionality of

the contested provisions (in the version in force at the date of issue of the action

the contested decision of the tax authority, i.e. on the day of the 9. 8.2005), was

adopted and published within the limits of the Constitution laid down the competence and constitutionally

in the prescribed manner.



13. the Constitutional Court, the law No. 235/2004 Coll., has been approved

The Chamber of Deputies on 26 April. on 27 February 2004. the meeting, which of the

187 members of Parliament present voted 94 members and 93 against. On 12 June 2006.

3.2004 was the Bill sent to the Senate, which approved it on 1 May. 4.

2004 at its 14. the meeting of senators present for him 73 votes

37 senators and 31 against. The President did not sign the law and returned it to the

The House of representatives, which voted on its 30. meeting on 22 November.

April 2004. Of the 184 votes for, 101 against, was 83.

The law was promulgated in the collection of laws under no. 235/2004 Coll., on 23 December 2005. 4.

2004, its effectiveness there was 1. 5.2004.



14. The Constitutional Court therefore finds that the law has been duly adopted and issued in

the limits of the Constitution laid down the competence and constitutionally prescribed way.



In the.



Assessment of the competence of the Constitutional Court to hear the application and

locus standi of the applicant



15. The Constitutional Court had to first answer the question of whether he is entitled

discuss the merits brought by the proposal, when the provisions of the law on

VAT, whose cancellation and then with the change of the design of speaking

unconstitutionality, the appellant sought an amendment to the law was carried out

296/2007 Coll. with effect from 1 January. 1.2008 cancelled. The contested provisions in the

the text of the amendments made to the law before no 296/2007 Coll., however, was in the

the case applied, even in the filed application will need to be

the application of this provision by the applicant should be reviewed.



16. Under section 67 para. 1 of the law on the Constitutional Court is given by reason

termination of the proceeding, if the law, other legislation or their

individual provisions, whose annulment is sought, shall

force before the end of the proceedings before the Constitutional Court. However, as the constitutional

the Court held in the award already SP. zn. PL. ÚS 38/06 [find of 6.2.2007

(promulgated under Act No. 84/2007 Coll., available at http://nalus.usoud.cz)]

According to the legal opinion of the award SP. zn. PL. ÚS 33/2000 [find

of 10.1.2001 (N5/21 SbNU 29; declared under no. 78/2001 Coll.], it is

The Constitutional Court pursuant to art. 95 para. 2 of the Constitution, competent to examine the merits

the constitutionality of the contested provisions, even though it was already cancelled (changed), and

It provided that the addressee of the alleged reason of unconstitutionality is

public power and not the body of private law. Due to the fact that, in

the matter in addressee is tempered because of the unconstitutionality of the public authorities,

they are in the context of the cited the legal opinion expressed in case SP. zn.

PL. ÚS 38/06 the conditions for substantive projednatelnost administered

the proposal.



17. now the employment the claimant has complied with the conditions of article 81(3). 95 para.

2 of the Constitution, since it seeks to give the unconstitutionality of the provisions of §

paragraph 105. 1 third sentence of the law on value added tax, which is related to the

his decision-making activities, and, therefore, is this Court authorized

by the applicant pursuant to article. 95 para. 2 of the Constitution.



Vi.



Oral proceedings



18. According to the provisions of § 44 para. 2 of the Act on the Constitutional Court may by the constitutional

the Court, with the consent of the participants from the oral proceedings to refrain from cannot be

This meeting to expect further clarification of the matter. Due to the fact that

the appellant in the paper of 29 May. 5.2008, the President of the Chamber of Deputies

Parliament of the Czech Republic in its observations of 13 January 2004. 6.2007 and

the President of the Senate of the Parliament of the Czech Republic in the paper of 22 November. 5.2008

They expressed their agreement with the abandonment of the oral proceedings, and

the Constitutional Court considers that, since the meeting cannot be expected for more

clarification of the matter, it was from the oral proceedings in the case dropped.



VII.



The existing case law of the Constitutional Court relating to the assessed

the issue of



19. The Constitutional Court is no longer the issue of the admissibility of a set-off of tax

overpayments to the value added tax on the payment of tax arrears in

If the tax body is bankrupt, on whose property was declared

audition, dealt with the Senate in a number of their findings, for example. in the findings of sp.

Zn. I. ÚS 544/02 (see above), II. TC 35/05 [find dated 20.12.2005 (N

232/39 SbNU 457)], III. TC 648/04 [find of 28.7.2005 (N 144/38

SbNU 135)], III. TC 41/05 [find of 18.1.2006 (N 19/40 SbNU 147)],

IV. TC 408/05 [find dated 31 July 2006 (N 144/42 SbNU 177)]. The proposal for a

The Supreme Administrative Court to cancel the provisions of § 37a of the law No.

588/1992 Coll., on value added tax, as amended

(hereinafter "Law No 588/1992 Coll.), § 105 para. 1 third sentence of Act No.

235/2004 Coll. and § 64 para. 2 of the law on administration of taxes and fees is then

The Constitutional Court of the issue in question extensively in plenary

finding SP. zn. PL. ÚS 12/06 (available at http://nalus.usoud.cz).

The conclusions to which the Constitutional Court considered in the above-cited findings can be

applied to the matter under consideration now.



20. the Constitutional Court first noted that from the article. 11 of the Charter cannot be

any interpretation of the inferred increased protection rights of the State as the owner of

in tax matters, represented by the tax, which would, in the cases

the renowned auditions led to his advantage and gave him a

a privileged position in relation to other creditors in bankruptcy

with regard to the offsetting tax overpayment to the payment of the tax

outstanding balance.



21. The question of set-off private and public options

accounts receivable, i.e.. whether the provisions of § 14 para. 1 (b). I) the Bankruptcy Act

and as the provisions of the settlement private anchor

inadmissibility of such a set-off of receivables in addition to private law

the claims raised by the plaintiff and the public, in the now, as assessed

things, the Constitutional Court dealt with in detail in the above mentioned award SP. zn.

III. TC 648/04 (see above). How in this finding of the Constitutional Court States, it cannot be

from existing case-law of the Constitutional Court in this regard to draw generalizations

regarding the exclusion of netting for private and

public claims. Assessment of the admissibility of such a set-off

depends on the particular pozitivněprávní edit, and you can in this

the context to refer to the legal opinion contained in the report of the Supreme

Administrative Court of CZECHOSLOVAKIA of 14 July. October 1932 No 15.605 (Boh. And 10072/32),

According to which "in order to institute legal kompensace, introduced in

Law Act, could also be used in the field of public law, it is

need a special legal regulation ". On the question of whether such a

special legislation that includes not only compensation inadmissible

private law, but also private and public

claims can be considered as well as the provisions of § 14 para. 1 (b). ZKV, came out I)

The Constitutional Court from finding that in case of conflict the two modifications

the simple rights of the same degree of legal force, which are not in the nota bene

relationship of inclusion, but a overlaps, you determine that is by editing the

General and special, given by the subject of the procedure (which is defined by

procedural proposal). General legislation is, therefore, that from the perspective of law

a simple



prima facie

the proposal defined the subject it regulates.



22. In that finding SP. zn. III. TC 648/04, as well as in the plenary

finding SP. zn. PL. ÚS 12/06 (see above), the Constitutional Court, on the basis of


the principle of the priority of a simple law constitutionally Conformal interpretation,

came to the conclusion, according to which the provisions of § 14 para. 1 (b). I) ZKV is

specific legislation guaranteeing compensation inadmissible not only

private law, but also private and public

claims. As such, therefore, the provisions of § 14 para. 1 (b). I) ZKV in

the position of special finishes prefer before you edit is contained in the General

the provisions of § 59 paragraph 1. 3 (b). (e)), section 40 para. 11 and § 64 para. 2 ZSDP,

While the interpretation of these provisions, constitutionally Conformal occurs

the fulfillment of the purpose and objectives of the Act on bankruptcy and settlement.



VIII.



The content of the contested legal provisions compliance with the constitutional order



23. After the recap of existing case-law went to the constitutional

the Court to assess the content of the contested provisions with regard to its compliance with the

the constitutional order of the Czech Republic [article 87, paragraph 1 (a)) of the Constitution].



24. the aforementioned Senate findings and award of the Constitutional Court the plenary to

set-off of tax overpayments on the value added tax to be treated

the issue of protection of property rights in question of bankruptcy creditors

the protection of the rights of the State against a beneficiary as the owner in a position

bankruptcy creditors in terms of earlier rules of value added tax

the values provided for by Act No. 588/1992 Coll., the proposal under consideration Now

refers to the legislation on value added tax established by the downstream

Act No. 235/2004 Coll., effective since 1. 5.2004. A later question

legislation the provisions of § 105 para. 1 third sentence of the law on income tax of

value added compared to the previous legislation specifically stated that

"the Declaration of bankruptcy of the tax proceedings does not cut, and after the Declaration of

bankruptcy is meant to be refunded the excess forward, if there is no tax

arrears incurred prior to the Declaration after the Declaration of bankruptcy ".

The legislature and for the period from 1. 5. until 31 December 2004. 12.2007 (i.e. in the amendment to the

made by Act No. 296/2007 Sb.) edited by set-off of tax overpayment

to the payment of the tax arrears of the mandatory standard neponechávající administrators

Another possible tax procedure



Secundum et intra legem

before imposing the contested provision, i.e.. established the obligation of tax administrators

return after the Declaration of bankruptcy of the payer, calculated the excess deduction only

If this does not have tax arrears incurred prior to the Declaration after

a declaration of bankruptcy.



25. the contested provision was of the legislator, with effect from 1. 1.2008

in connection with the adoption of Act No. 296/2007 Coll., which were

In addition to the law on VAT were also insolvency law, the law on the

the administration of taxes and fees and some other laws. In the explanatory memorandum to the

amend the draft law No. 296/2007 Coll. to the amendment of the VAT Act

States that builds upon the changes reflected in the text of the draft amendment to the law on

the administration of taxes and fees, and the changes to the explanatory memorandum

characterised by the need to define the tax arrears for the purposes of

the insolvency proceedings. Annulment of the contested provisions of the law on VAT

Law No. 296/2007 Coll. is an explicit expression of the intention of the legislator with

efficiency



Pro futuro

. In connection with the cancellation of the contested provisions, which occurred

After the submission of the proposal under consideration to the Constitutional Court, changed the municipal court

Prague, its initial proposal and proposed a vote of unconstitutionality now

derogovaného of the provision.



26. The essence of the proposal is to the claimant's contention that with regard to its

the linking of the law, and consequently, the contested provision cannot, for the period

the validity and the scope of the provision to protect property rights

bankruptcy creditors with regard to the privileged position of the State as

one of the bankruptcy creditors and therefore considers the contested provision in

contrary to the article. 11 (1) 1 of the Charter.



27. In connection with the plaintiff's purported neústavností contested

the provisions of the relevant provisions should be addressed in its mutual

relation to the provisions of § 14 para. 1 (b). I) as ZKV arises from

navrhovatelova belief that the unconstitutionality of the contested provisions

lies in its application to the case of the bankrupt subject to be tried by mode

the Act on bankruptcy and settlement. The Constitutional Court in assessing mutual

the relationship of the above legal provisions are mainly of a constitutionally

enshrined fundamental rights, as this is consistent with the requirement of respect for the

rights and freedoms of man and citizen, as a basis for the rule of law (article.

1 (1). 1 of the Constitution). The primacy of individuals against the State (article 1 of the Charter) is

to be respected even in the face of fundamental rights with the general interest of the State.



28. The right of ownership as the right base, whose protection is contested

without prejudice to the provisions, is protected by article. 11 of the Charter. According to the first sentence, and

the second to the first paragraph of that article of the Charter, everyone has the right to own

the property and ownership of all owners has the same statutory content and

the protection. From the above mentioned provisions of the Charter, no interpretation

increased protection of the rights of the State inferred as the owner. In the present case

However, the application of the contested provisions necessarily such unjustified

advantage and the provisions of the State as a de facto State,

represented in tax matters, gave the tax administrator

a privileged position compared to other bankruptcy creditors. On the other hand

the abrogation of the contested provisions, which approached the legislature

by law No. 296/2007 Coll., State, not neznevýhodnila, because in

provided the proper application of its claims under the provisions of § 20 ZKV

for him there is no more significant injury or injury not greater than

other bankruptcy creditors. The Constitutional Court in this conclusion matches

with its earlier findings made in the above-mentioned findings, on

the argument for brevity it refers to.



29. The Constitutional Court does not see any reason to deviate from its conclusions

adopted in these findings, nor with respect to the complainant alleged

the belief that the question of rebates on value added tax may

be judged and rozhodována just from the points of view and under the legislation of

of public service. In that finding, SP. zn. III. TC 648/04 (see above)

The Constitutional Court came to the conclusion, according to which the provisions of § 14 para. 1 (b).

I) ZKV is special legislation in relation to the provisions of the law on

the administration of taxes and fees, guaranteeing not only compensation inadmissible

private law, but also private and public

claims and, as such, is therefore in the position of a special edit precedence

before you edit the General, contained in the aforementioned provisions of the law on

the administration of taxes and fees (see previously carried out so far recap

the case-law). Specified arguments can come to a similar conclusion in

now the present case, as regards the relationship of the provisions of § 14 para. 1 (b).

I) and the contested provisions of § ZKV 105 para. 1 third sentence, of the VAT law.



30. The Constitutional Court in its established case law has repeatedly stressed the

take precedence over constitutionally Conformal interpretation of legislation or its

individual provisions before its cancellation. In the proposal under consideration

the contested provisions of § 105 para. the third sentence of the law on VAT represents

mandatory modification that you cannot bridge the constitutionally Conformal

interpretation, since its categorical nature does not allow the addressee

(the tax authorities) depart from this edit, without being acted



Contra legem

.



31. On the basis of the above arguments, the Constitutional Court decided in

the present case concluded that the provisions of § 105 para. 1 sentence of third law

No. 235/2004 Coll., on value added tax, in the version prior to the amendments to the

carried out by law 296/2007 Coll., did not allow the general courts of honor

their responsibilities in the protection of fundamental rights and freedoms of bankruptcy

creditors in the review of the decision of the tax authorities of a tax credit

overpayment to the payment of tax arrears in the administrative judiciary, which

represents the non-respect of principles enshrined in article. 11 (1) 1

Of the Charter. The Constitutional Court therefore design the applicant pursuant to article. 95 para. 2

The Constitution upheld, with the terms of article 1. 89 para. 2 of the Constitution are

consequences of unconstitutionality identified by the public authorities are required to

incorporated into its decision-making practice, therefore, in addressing the specific

cases cited provisions do not apply.



The President of the Constitutional Court:



JUDr. Rychetský in r.



* URPozn.red: collection of findings and resolutions of the Constitutional Court, Volume 37, find

# 76, p. 75