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The Opinion Of The Full Court In Case Law On The Cs The Administration Of Taxes And Fees

Original Language Title: stanovisko pléna ÚS ve věci zákona o správě daní a poplatků

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368/2011 Sb.



The COMMUNICATION FROM the



The Constitutional Court



The plenary of the Constitutional Court in the composition of Stanislav Duchoň, Franz, Package

Vlasta Formankova, Turgut Güttler, Pavel Holländer, Ivana Janů, Vladimir

The crust, Dagmar Lastovecká (reporter judge), Jiri Mucha, Jan Musil,

Jiří Nykodým, Pavel Rychetský, Miloslav Výborný, Elisabeth Wagner, and

Michael April adopted under SP. zn. PL. ÚS-St. 33/11 on March 8. November

2011 at the design II. the Chamber of the Constitutional Court under section 23 of the Act No. 182/1993

Coll., on the Constitutional Court, in the case of a legal opinion (II). the Senate's Constitutional

Court for proceedings conducted under the SP. zn. II. CS 431/11 to constitutionally Conformal

the interpretation of section 16 of Act No. 337/1992 Coll., on administration of taxes and fees, in the

as amended, which departs from the legal opinions

The Constitutional Court made the award SP. zn. I. ÚS 1835/07 of 18 January.

11.2008 (N 196/51 SbNU 375), this opinion:



Tax management and individual partial permissions are conferred on the tax administrators in

during the tax proceedings find themselves between the public interest in the establishment and

tax collection on the one hand and the protection of the autonomous sphere of the individual to

the other side. It is the responsibility of the tax authorities in the application of the individual

procedural institutions, even when implemented, tax inspection, do

in accordance with the principle of proportionality and to minimize interference to

the specific procedural steps does not become excessive and against an individual in the

as a result of infringing on the autonomy of the individual information. For

violation of these principles and implementation powers in breach of article. 2 (2).

2 of the Charter of fundamental rights and freedoms cannot be considered without further procedure

the tax, which will launch the tax control within the meaning of section 16 of the Act.

337/1992 Coll., on administration of taxes and fees, as subsequently amended,

without specific facts substantiated suspicion that the tax entity

has not properly tax liability.



Justification



(I).



1. the constitutional complaints SP. zn. II. CS 431/11 (pending)

the complainant sought the annulment judgment, the Supreme Administrative Court and

The regional court in Pilsen for the alleged interference with the fundamental rights to the Court of

guaranteed protection of the article. paragraph 36. 1 and 2 of the Charter of fundamental rights and

freedoms ("the Charter").



2. in the case of the complainant as a tax subject was launched by the

tax audit to examine the tax base and tax within the meaning of section 16 of the

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

provisions, the Protocol of 10 June 1999. 5.2006, while tax audit has not been

in the Protocol in no way justified by (material documents shows that the

the stimulus for initiating fiscal control was a significant drop in performance

the tax entity, projected in the amount of tax). 24 September. 10.2008 filed a

the complainant in the action against the decision of the tax authority, which questioned

delivery call tax administrator to discuss the results of the tax audit and

reports of tax inspection. Day 10. 8.2009 at the "expression of the applicant" raised the

the complainant [referring to the conclusions of the award SP. zn. I. ÚS 1835/07 of 18 January.

11.2008 (N 196/51 SbNU 375)] the objection of illegality made by the parties

tax control, as he at the start or in the next over was not

communicated to her the reason. The lawsuit was rejected by the regional court, since the objection

concerning the delivery has not been found to be reasonable and opposition parties

the illegality of tax inspection was considered to be applied after the deadline

pursuant to § 71 para. 2 sentences a third administrative judicial procedure, and therefore, it

a regional court. Appeal in cassation was rejected by the contested

the judgment of the Supreme Administrative Court, which is aligned with the conclusions

the regional court made in relation to the service of documents

(the complainant failed delivery challenge), in relation to the

delayed application of the objection of illegality of tax checks (this was not

the objection that the Court would have to take into account ex officio). Above the

framework of the Supreme Administrative Court said the reasons why you can believe

depart from the legal opinion expressed in the Constitutional Court, and

to refer to the judgments in no. 2 Aps 2/2009-52 and no. 8 Afs 46/2009-46.



II.



3. Finding SP. zn. I. ÚS 1835/07 of 18 January. 11.2008 (N 196/51 SbNU

375) was the judgment of the Supreme Administrative Court cancelled for failure to

the principles guaranteed by the article. 2 (2). 2 of the Charter and article. 4 of the Constitution of the United

Republic (hereinafter referred to as "the Constitution"), which has been infringed the fundamental right

the complainant guaranteed article. 11 (1) 1 of the Charter. The Constitutional Court has come to the

conclusion that, in the present case the complainant was institutional way

fixed tax (as a result of a tax audit, vexatious)

burdensome his estate, and thus ultimately to the violation of

its title, which enjoys constitutional protection under art. 11

paragraph. 1 of the Charter. If the administrative courts, to which the complainant turned to the

action, respectively. the cassation complaint, such procedure of the tax authorities

accept, continued violation of fundamental rights and stěžovatelových

Therefore, to comply with their obligation to provide protection for the rights of individuals (article.

90 of the Constitution), or of fundamental rights (article 4 of the Constitution).



4. The Constitutional Court has adopted general conclusions regarding the tax inspection

carried out within the meaning of section 16 of Act No. 337/1992 Coll., on administration of taxes and

fees, as amended, and noted that "If the

However, tax control actually be an act within the meaning of § 47 para. 2 of the Act

on administration of taxes and fees, it is necessary to bind to the existence of a clearly

the drafting of the reasons for its use. In terms of the material

the rule of law, it is necessary to insist on the requirement that the restriction or distortion

the autonomous sphere of the individual tax control was clear and in advance

the reason for the appreciable and the use of such a limitation, and such a reason

must be based on specific facts. This cannot be

generally formulated interest of the State to tax collection, which is the purpose of the law on

the administration of taxes and fees, but there must be a specific facts

a well-founded suspicion that a particular tax entity, in which the tax

review initiated, apparently their tax liability or to fulfil

fulfilled, but the extent is less than it should. It would be the realization of arbitrariness,

If the tax administrator could perform tax control at any time and

no reason for any tax subjects, respectively, in cases where

He himself considers it appropriate ".



5. the award was taken in a different position as a Judge Ivana Janů

coming in particular from the differentiation of tax inspection according to § 16 para. 1 and

vytýkacího proceedings pursuant to § 43 para. 1 of the law on administration of taxes and fees

While finding blurs the differences between the two institutions and the requirements for the

start an audit control by incorrectly on the tax audit. Tax

control is used to detect or examine the tax base or other

circumstances decisive for correct determination of the tax. The findings or

examination of the relevant circumstances, yet not at all does not mean that the tax

My suspicion about the shortening of the tax obligations; It may be a random

investigating whether tax was set correctly, or not.

A prerequisite for a tax audit is not the existence of doubts on the correct

the determination of the tax; It is only a determination or examination of whether

set correctly. Whereas the legal premise of tax

control is not the existence of doubts about the correctness of the determination of taxes, cannot be

after tax, or require that the log of the initiation of the tax

checks any doubts. The possibility of such controls is the

must be understood in the context of the general scheme of the tax proceedings

which is based on the fact that it is a tax, the tax body, who himself admits.

Therefore, it must also be entitled to the tax authorities in the tax inspection

check that the taxable person has established his own tax correctly or not.

In doing so, it should be noted that it is unrealistic to virtually every tax

the confession was immediately examined; and from this point you can no doubt

conclude that random tax audit in the public interest contributes to

the proper tax levy, and thus also to the fulfillment of the State budget revenues (§

1 of the law on administration of taxes and fees), which are financed by the needs of the

the welfare State, by which the Czech Republic as the legal and democratic State

in essence, no doubt is as follows (although explicitly in the Constitution

does not declare). In the same perspective, it is necessary to balance and "free realm

the individual "which the majority opinion correctly mentions, with" public

interested in "to the Assembly of sufficient resources necessary for redistribution

in the context of the solidarity with the socially necessary, as well as to finance

other necessary functions of the State.



III.



6. II. Chamber of the Constitutional Court with majority-Fowles in General

formulated by the conclusions adopted by the Board of appeal in case I SP. zn. (I).

TC 1835/07 and accept different opinions expressed in the opinion of the judge

Ivana Janů (referred to in point 5) II. the Senate, in the draft opinion

plenum has referred. The plenary of the Constitutional Court II. the Senate of the adoption

opinion adopted by.



7. On the question of conflict of interest on the establishment and collection of taxes and on the protection of

the autonomous sphere of the individual, the Constitutional Court expressed in its previous

the case-law, in which it deduced that the "tax management and individual component


permissions are conferred on the authorities in the course of tax proceedings find themselves between the

public interest in the establishment and collection of taxes on the one hand, and the protection of

the autonomous sphere of the individual on the other. This is a constitutional dimension

has your reflection directly in the standards of a simple law in § 2

paragraph. 1 of the tax code (Note: Act No. 337/1992 Coll., on administration of

taxes and fees) Act, according to which the tax authorities in tax management

in a way that protects the interests of the State, but in so doing shall ensure the safeguarding of the rights and

the law protected the interests of taxpayers and other persons involved

the tax proceedings. It is still the duty of tax authorities in the application of

each procedural institutions should act in accordance with the principle of

proportionality and minimize interventions to specific procedural

How to not become excessive and against an individual as a result of violating the

the right to information of the individual's autonomy. If these tax Manager

constitutional and legal constraints also does not respect, actually, is the constitutional

obligations of administrative courts that individuals have provided protection for its

the Basic Law (article 4 of the Constitution) "(e.g. find SP. zn. II. TC 703/06 of

on 21 February 2006. 4.2009 (N 92/53 SbNU 181)].



8. the tax control is modified by the Institute in the first act on the

the administration of taxes and fees, that is, by the General, who may find that their

the application of the tax in different phases of the proceedings. The Court decision

the practice of the courts in doing so, it follows that the tax audit is not a separate procedure

or a separate phase of the tax proceedings (e.g. find SP. zn. II. TC 334/02

of 13 October. 5.2003, N 63/30 SbNU 129). It is an act of the tax authorities,

or set of operations which according to § 16 para. 1 of the law on tax administration and

fees or tax Manager worker examines the tax base

or other circumstances relevant for the correct assessment of taxes for the tax

body or in a place where it's given the purpose of the inspection

the most appropriate. Tax audit is carried out to the extent strictly necessary for the

achieve the purpose under this Act. To this end, pursuant to § 2 (2). 2

the law on the administration of taxes and fees the establishment and recovery of tax so that the

tax revenues have been truncated.



9. the interpretation of the concept of a tax audit shall be in accordance with the general importance

the term control. Because in theory of administrative law indicates how the authority

public authority which identifies and assesses the performance of the obligations, possibly

the addressees of the public administration. Conceptual characters of such controls is the ability to

begin on the basis of the complaint or ex officio, the Act modified procedure

begin, the regulation of the rights and obligations of workers and controlling

controlled entities, determining penalties for breach of such

the duties, privileges, oppose the auditee

control, etc. The essential feature of such checks is mj. the possibility of its

random design, thus making for a situation where the controlling

person, by definition, does not have the (specific), that controlled

entity has failed to fulfil its obligations properly (see the judgment of the Supreme Administrative

Court No. 2 Aps 2/2009-52).



10. the tax control is therefore Institute with preventive meaning is

an integral part of the tax administration, which aims to verify the data on site

relevant for the determination of the tax liability in the correct amounts. It is one of the

the decisive legal institutions in order to achieve the objectives of the control and reduction of

tax evasion (see the explanatory memorandum to the law on the administration of taxes and fees).



11. A legitimate aim in the case of tax inspection carried out pursuant to section 16 of the

the law on the administration of taxes and fees is the public interest of the State to the proper

the establishment and collection of taxes embodied in § 2 paragraph 1. 2 of the law on tax administration and

fees. Limitation of personal sphere of the individual in the implementation of the tax

inspections by the tax is to be assessed in terms of the principle of

proportionality in any particular case, so as to eliminate the arbitrary

the procedure of the tax authorities (such as vexatious process chosen in case of sp.

Zn. I. ÚS 1835/07-see above). For such a procedure, however, cannot be made without

next consider, having regard to the purpose of the tax audit, the process by which

at the start of or during the tax audit, there is no reason to suspect

the proper non-compliance of the tax body.



The President of the Constitutional Court:



JUDr. Rychetský in r.



Different opinions under section 14 of Act No. 182/1993 Coll., on the Constitutional Court,

as amended, took to the opinion of the judges of the plenum

Francis Skinner, Pavel Holländer and Elisabeth Wagner.